http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7

PETITIONER:

BUDHAN CHOUDHRY AND OTHER

Vs.

RESPONDENT:

THE STATE OF BIHAR.

DATE OF JUDGMENT:

02/12/1954

BENCH:

DAS, SUDHI RANJAN

BENCH:

DAS, SUDHI RANJAN

MAHAJAN, MEHAR CHAND (CJ)

MUKHERJEA, B.K.

BOSE, VIVIAN

BHAGWATI, NATWARLAL H.

JAGANNADHADAS, B.

AIYYAR, T.L. VENKATARAMA

CITATION:

1955 AIR 191 1955 SCR (1)1045

ACT:

Constitution of India, Article 14-Code of Criminal Procedure

(Act V of 1898), section 30--Whether ultra vires the

Constitution-Article 14-Reasonable classification-Not

forbidden-Test of permissible classification-.Necessary

conditions-Constitution- Whether

1046

assures unanimity of decisions or immunity from erroneous

action of courts or executive agencies of State.

HEADNOTE:

It is well-settled that while Article 14 of the Constitution

forbids class legislation, it does not forbid reasonable

classification for the purposes of legislation. In order,

however, to pass the test of permissible classification two

conditions must be fulfilled, namely,

(i) the classification must be founded on an intelligible

differentia which distinguishes persons or things that are

grouped together from others left out of the group; and,

(ii) that differentia must have a rational relation to the

object sought to be achieved by the statute in question.

The classification may be founded on different bases; namely

geographical, or according to objects or occupations or the

like. What is necessary is that there must be nexus between

the basis of classification and the object of the Act under

consideration. Further Article 14 condemn,,; discrimination

not only by a substantive law but also by a law of

procedure.

The Constitution does not assure unanimity of decisions or

immunity from merely erroneous action, whether by the courts

or the executive agencies of a State.

Section 30 of the Code of Criminal Procedure does not

infringe the fundamental right guaranteed by Article 14 of

the Constitution.

Chiranjit Lal Chowdhuri v. The Union of India ( [1950]

S.C.R. 869), The State of Bombay v. F.N. Balsara ([1951]

S.C.R. 682), The State of West Bengal v. Anwar Ali Sarkar-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7

([1952] S.C.R. 284), Kathi Raning Rawat v. The State of

Saurashtra ([1952] S.C.R. 435), Lachmandas Kewalram Ahuja v.

The State of Bombay ([1952] S.C.R. 710), Qasim Razvi v. The

State of Hyderabad ([1953] S.C.R. 581), Habeeb Mohamad v.

The State of Hyderabad ([1953] S.C.R. 661), The State of

Punjab v. Ajaib Singh ([1953] S.C.R. 254), Yick Wo v. Peter

Hopkins ([1886] 118 U.S. 356; 29 L. Ed. 220) and Snowden

v.Hughes ([1944] 321 U.S. 1; 88 L. Ed. 497), referred to.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 83 of

1953.

Appeal under article 132(1) of the Constitution of India

from the Judgment and Order dated the 25th August 1953 of

the High Court of Judicature at Patna in Criminal Appeal No.

410 of 1951.

B. K. Saran and M. M. Sinha, for the appellants.

M. C. Setalvad, Attorney-General for India (R.C.prqsad,

with him) for the respondent.

1047

1954. December 2. The Judgment of the Court was delivered

by

DAS J.-This is an appeal from a judgment of the High Court

of Judicature at Patna which raises a substantial question

of law as to the interpretation of the Constitution of

India.

The appeal arises out of a criminal trial held in the

district of Hazaribagh in the State of Bihar. The case

against the appellants was investigated by the local police

and on the 4th June, 1951 a challan was submitted before the

Sub-Divisional Magistrate. The Sub-Divisional Magistrate

passed the following order in the order-sbeet:-

"Let the record be sent to the Dy. Commr., Hazaribagh for.

transferring it to the file of the Spl. Magistrate for

trial".

On the record being placed before the Deputy Commissioner,

the latter passed following order:-

"Perused S.D.0's order-sheet. Withdrawn and transferred to

the file of Mr. S. F. Azam, Magte. with powers u/s 30, Cr.

P. C. for favour of disposal".

The appellants were then tried by Mr. S. F. Azam, Magistrate

of the first class exercising powers under section 30 of the

Code of Criminal Procedure on charges under sections 366 and

143 of the Indian Penal Code and each of them was convicted

under both the sections and sentenced to rigorous imprison-

ment for five years under section 366, Indian Penal Code, no

separate sentence having been passed under section 143.The

appellants preferred an appeal to the High Court of

Judicature at Patna. The appeal was heard by a Bench

consisting of S. K. Das and C. P. Sinha, JJ. There was a

difference of opinion between the two learned Judges as to

the constitutionality of section 30 of the Code of Criminal

Procedure. S. K. Das, J., took the view that the impugned

section did not bring about any discrimination or inequality

between persons similarly circumstanced and consequently did

not offend the equal protection clause of the Constitution,

while C. P. Sinha, J., was of the opinion that

1048

the section was hit by article 14. The appeal was thereupon

placed before Reuben, C. J., who in agreement with S. K.

Das, J., held that section 30 did not violate the inhibition

of article 14. The learned Chief Justice upheld the

conviction but reduced the sentence. On application by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7

appellants the High Court granted them a certificate under

article 132(1) and the present appeal has been filed

accordingly.

The learned Advocate appearing in support of the appeal

contends before us, as was done before the High Court, that

there had been an infraction of the fundamental rights

guaranteed to the appellants under article 14 of the

Constitution of India. The complaint is that the appellants

had been tried by a section 30 Magistrate and not by a Court

of Session. A section 30 Magistrate is enjoined by that

section to try the case brought before him as a Magistrate

and accordingly in cases like the present case he will

follow the warrant procedure which is different from the

procedure followed by a Court of Session. The substance of

the grievance is that a trial before the Sessions Judge is

much more advantageous to the accused person in that he gets

the benefit of the commitment proceedings before a

Magistrate and then a trial before the Sessions Judge with

the aid of the jury or assessors. It has not been seriously

questioned before us that in spite of the risk of imposition

of a punishment heavier than what a section 30 Magistrate

can inflict, a trial by a Sessions Judge is of greater

advantage to the accused than a trial before a Magistrate

under the warrant procedure. We have, therefore, to see

whether this apparent discrimination offends against the

equal protection clause of our Constitution.

The provisions of article 14 of the Constitution have come

up for discussion before this Court in a number of cases.,

namely, Chiranjit Lal Chowdhuri v. The Union of India(1),

The State of Bombay v. F. N. Balsara(2), The State of West

Bengal v. Anwar Ali Sarkar(3), Kathi Raning Rawat v. The

State of Sau-

(1) [1950] S.C.R. 869. (2) [1951] S.C.R. 682.

(3) [1952] S.c. R. 284.

1049

rashtra(1), Lachmandas Kewalram Ahuja v. The State of

Bombay(2) and Qasim Razvi v. The State of Hyderabad(3) and

Habeeb Mohamad v. The State of Hyderabad(4). It is,

therefore, not necessary to enter upon any lengthy

discussion as to the meaning, scope and effect of the

article in question. It is now well-established that while

article 14 forbids class legislation, it does not forbid

reasonable classification for the purposes of legislation.

In order, however, to pass the test of permissible

classification two conditions must be fulfilled, namely, (i)

that the classification must be founded on an intelligible

differentia which distinguishes persons or things that are

grouped togetber from others left out of the group and (ii)

that differentia must have a rational relation to the object

sought to be achieved by the statute in question. The

classification may be founded on different bases; namely,

geographical, or according to objects or occupations or the

like. What is necessary is that there must be a nexus

between the basis of classification and the object of the

Act under consideration. It is also well established by the

decisions of this Court that article 14 condemns

discrimination not only by a substantive law but also by a

law of procedure. The contention now put forward as to the

invalidity of the trial of the appellants has, therefore

to be tested in the light of the principles so laid down in

the decisions of this Court.

There are no less than four modes of trial prescribed by the

Code of Criminal Procedure, namely,(i) trial of sessions

cases, (ii) trial of warrant cases, (iii)summary trials and

(iv) trials before a High Court and a Court of Session and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7

the procedure in each of these trials is different. Section

28 of the Code of Criminal Procedure which is to be found in

Chapter III which deals with "Powers of Courts" reads as

follows:-

"28. Subject to the other provisions of this

Code, any offence under the Indian Penal Code may

be tried-

(1) [1952] S.C.R. 435.

(3) [1953] S.C.R. 581.

(2) [1952] S-C R. 710.

(4) [1953] S.C.R. 661.

1050

(a) by the High Court, or

(b) by the Court of Session, or

(c) by any other Court by which such

offence is shown in the eighth column of the second schedule

to be triable".

Section 30, as it now stands, provides:-

"30. In Assam, Madhya Pradesh, Punjab, Oudh, Madhya Bharat,

Hyderabad, Mysore, Patiala and East Punjab States Union and

Rajasthan, in all Part C States and in those parts of the

other States in which there are Deputy Commissioners or

Assistant Commissioners the State Government may, not-

withstanding anything contained in section 28 or section 29,

invest the District Magistrate or any Magistrate of the

first class, with power to try as a Magistrate all offences

not punishable with death".

Section 34 puts a limit to the power of punishment of a

section 30 Magistrate in terms following:-

"34. The Court of a Magistrate, specially empowered under

section 30, may pass any sentence authorised by law, except

a sentence of death or of transportation for a term

exceeding seven years or imprisonment for a term exceeding

seven years".

It will be noticed that section 28 begins with the clause

"subject to the other provisions of this Code". This means

that the section and the second schedule referred to therein

are controlled by the other provisions of the Code including

the provisions of section 30. Further, the text of section

30 itself quite clearly says that its provisions will

operate "notwithstanding anything contained in section 28 or

section 29". Therefore, the provisions of section 28 and

the second schedule must give way to the provisions of

section 30. It is not, however, claimed by the learned

Attorney-General that section 30 abrogates or overrides

altogether the provisions of section 28 and the second

schedule in the sense that in the specified territories

Magistrates empowered -under section 30 become the only

tribunal competent to try all offences not punishable with

death to the exclusion of all other Courts mentioned in the

8th column of the second schedule.

1051

If that had been the position, then there could be no

question of discrimination, for, in that situation, section

30 Magistrate's Court would be the only Court in which all

offences not punishable with death would become triable. As

already stated, this extreme claim is not made by the

learned Attorney-General. The effect of the State

Government investing the District Magistrate or any

Magistrate of the first class with power under section 30 is

to bring into being an additional court in which all

offences not punishable with death become triable. In other

words, the effect of the exercise of authority by the State

Government under section 30 is, as it were, to add in the

8th column of the second schedule the Magistrate so em-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7

powered as a Court before whom all offences not punishable

with death will also be triable. The question is whether

this result brings about any inequality before the law and

militates against the guarantee of article 14.

Section 30, however, empowers the State Government in

certain areas to invest the District Magistrate or any

Magistrate of the first class with power to try as a

Magistrate all offences not punishable with death. There is

an obvious classification on which this section is based,

namely, that such power may be conferred on specified

Magistrates in certain localities only and in respect of

some offences only, namely, all offences other than those

punishable with death. The Legislature understands and

correctly appreciates the needs of its own people which may

vary from place to place. As already observed, a

classification may be based on geographical or territorial

considerations. An instance of such territorial

classification is to be found in the Abducted Persons

(Recovery and Restoration) Act, 1949 which came up for

discussion before this Court and was upheld as valid in The

State of Punjab v. Ajaib Singh(1). S. K. Das, J., and the

learned Chief Justice have in their respective judgments

referred to certain circumstances, e.g. the distance between

the place of occurrence and the headquarters where

(1) [1953] S.C R. 254. 135

1052

the Court of Session functions at considerable intervals,

the inconvenience of bringing up witnesses from the

interior, the difficulty of finding in the backward or out

of the way places sufficient number of suitable persons to

act as jurors or assessors, all of which make this

classification quite a reasonable one. In this sense, the

section itself does not bring about any discrimination

whatever. The section only authorises the State Government

to invest certain 'Magistrates with power to try all

offences not punishable with death and this authority the

State can exercise only in the specified places. If the

State invests any Magistrate with powers under section 30

anybody who commits any offence not punishable with death

and triable by a Court of Session under section 28 read with

the second schedule is also liable to be tried by the

section 30 Magistrate. The risk of such liability falls

alike upon all persons committing such an offence.

Therefore, there is no discrimination in the section itself.

The learned counsel for the appellants, however, contends,

on the strength of the decision of the Supreme Court of

America in Yick, Wo v. Peter Hopkins(1) that "though a law

be fair on its face and impartial in operation, yet, if it

is administered by public authority with an evil eye and an

unequal hand so as practically to make illegal

discrimination between persons in similar circumstances

materially to their rights, the denial of equal justice is

still within the prohibition of the Constitution". The

contention is that although the section itself may not be

discriminatory, it may lend itself to abuse bringing about a

discrimination between persons accused of offences of the

same kind, for the police may send up a person accused of an

offence under section 366 to a section 30 Magistrate and the

police may send another person accused of an offence under

the same section to a Magistrate who can commit the accused

to the Court of Session. It is necessary to examine this

contention with close scrutiny.

When a case under section 366, Indian Penal

(1)[1886] 118 u.s. L.Ed. 220.

1053

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7

Code., which is a case triable by a Court of Session under

the second schedule, is put up before a section 30

Magistrate, the section 30 Magistrate is not necessarily

bound to try the case himself. Section 34 limits the power

of the section 30 Magistrate in the matter of punishment.

If the section 30 Magistrate after recording the evidence

and -before framing a charge feels that in the facts and

circumstances of the case the maximum sentence which he can

inflict will not meet the ends of justice he may, instead of

disposing of the case himself, act under section 347 and

commit the accused to the Court of Session. Here, whether

the accused person shall be tried by the section 30

Magistrate or by the Court of Session is decided not by the

executive but is decided according to the discretion

judicially exercised by the section 30 Magistrate himself.

Take the case of another person accused of an affence under

section 366 which is sent up by the police to a Magistrate

who is not empowered under section 30. Such Magistrate

after perusing the challan and other relevant papers may, if

he thinks that the ends of justice will be met if the case

is tried by a section 30 Magistrate, submit the case to the

District Magistrate with his own recommendations for such

action as the latter may think fit to take under section 528

of the Code of Criminal Procedure. That is what was done in

the instant case. On the other hand, he may take evidence

under section 208 and after the evidence has been taken,

make up his mind judicially whether he should proceed under

section 209 or section 210. He may consider that in the

facts and circumstances of the case disclosed in the

evidence the ends of justice require that the accused person

should be committed to the Court of Session and in that

event he will proceed to frame a charge and follow the

provisions of sections 210 to 213. If, however, the

Magistrate is satisfied on the facts of the case that the

ends of justice will be sufficiently met if the accused is

tried by a section 30 Magistrate having jurisdiction in the

matter, the Magistrate may report to the District Magistrate

and the latter may, in his discretion, withdraw the case

under section 528 of the

1054

Code of Criminal Procedure to himself and may enquire into

or try such case himself or refer it for enquiry or trial to

any other Magistrate competent to try the same. In such a

case there is exercise of judicial discretion at two stages,

namely, under section 209 by the Magistrate before whom the

accused was sent up for enquiry and also by the District

Magistrate acting under section 528 of the Code of Criminal

Procedure. It is thus clear that the ultimate decision as

to whether a person charged under section 366 should be

tried by the Court of Session or by a section 30 Magistrate

does not depend merely on the whim or idiosyncrasies of the

police or the executive Government but depends ultimately on

the -proper exercise of judicial discretion by the

Magistrate concerned. It is suggested that discrimination

may be brought about either by the Legislature or the

Executive or even the Judiciary and the inhibition of

article 14 extends to all actions of the State denying equal

protection of the laws whether it be the action of anyone of

the three limbs of the State. It has, however, to be

remembered that, in the language of Frankfurter, J., in

Snowden v. Hughes(1), "the Constitution does not assure

uniformity of decisions or immunity from merely erroneous

action, whether by the Courts or the executive agencies of a

State". The judicial decision must of necessity depend on

the facts and circumstances of each particular case and what

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7

may superficially appear to be an unequal application of the

law may not necessarily amount to a denial of equal

protection of law unless there is shown to be present in it

an element of intentional and purposeful discrimination (See

per Stone, C.J., in Snowden v.Hughes (supra). It may be

mentioned at once that in the present case there is no

suggestion whatever that there has been at any stage any

intentional or purposeful discrimination as against the

appellants by the Sab-Divisional Magistrate or the District

Magistrate or the section 30 Magistrate who actually tried

the accused. Further, the discretion of judicial officers

is not arbitrary and the law provides for revision by

(1) (1914) 321 U.S. 1; 88 L. Ed. 497.

1055

superior Courts of orders passed by the Subordinate Courts.

In such circumstances, there is hardly any ground for

Apprehending any capricious discrimination by judicial

tribunals.

On the facts and circumstances of this case we find

ourselves in agreement with S. K. Das, J., and Reuben, C.

J., and hold that no case of infringement of fundamental

right under Article 14 has been made out. In the

circumstances, we dismiss this appeal.

Appeal dismissed.