http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 28

PETITIONER:

KATHI RANING RAWAT

Vs.

RESPONDENT:

THE STATE OF SAURASHTRA.

DATE OF JUDGMENT:

27/02/1952

BENCH:

SASTRI, M. PATANJALI (CJ)

BENCH:

SASTRI, M. PATANJALI (CJ)

FAZAL ALI, SAIYID

MAHAJAN, MEHR CHAND

MUKHERJEA, B.K.

DAS, SUDHI RANJAN

AIYAR, N. CHANDRASEKHARA

BOSE, VIVIAN

CITATION:

1952 AIR 123 1952 SCR 435

CITATOR INFO :

R 1952 SC 235 (10,18,22)

R 1953 SC 10 (22)

MV 1953 SC 156 (29)

R 1953 SC 404 (11)

RF 1954 SC 424 (19)

R 1955 SC 191 (5)

R 1956 SC 246 (65,69)

F 1957 SC 503 (16)

R 1957 SC 877 (16)

D 1957 SC 927 (9)

R 1958 SC 538 (11,12,13,17)

RF 1958 SC 578 (211)

RF 1959 SC 725 (12)

F 1960 SC 457 (15)

R 1961 SC 554 (15)

R 1961 SC1602 (12)

R 1963 SC 806 (5)

RF 1964 SC 370 (6)

RF 1970 SC 564 (192)

RF 1974 SC1389 (251)

RF 1974 SC1660 (48)

R 1974 SC2009 (8,10,11,13,14,15,29,30,35,36)

F 1974 SC2044 (3)

R 1978 SC 68 (130)

R 1978 SC 597 (55)

R 1979 SC 478 (64,66,67)

R 1980 SC1382 (81)

R 1981 SC 379 (62)

R 1981 SC1829 (28,106)

R 1988 SC1531 (163)

D 1990 SC 560 (17)

C 1990 SC 820 (24)

ACT:

Saurashtra State Public Safety (Third Amendment) Ordi-

nance (LXVI of 1949), ss. 9, 10, 11--Law empowering State to

constitute Special Courts to try special classes of of-

fences--Constitutional validity--Contravention of fundamen-

tal right to equal protection of laws--Essentials of valid

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 28

classification--Delegation of legislative powers--Constitu-

tion of India, arts. 13, 14.

HEADNOTE:

The Saurashtra State Public Safety Measures Ordinance,

1948, was passed "to provide for public safety, maintenance

of public order and preservation of peace and tranquillity

in the State of Saurashtra." As crimes involving violence

such as dacoity and murder were increasing, this Ordinance

was amended by the Saurashtra State Public Safety Measures

(Third Amendment) Ordinance, 1949, which, by secs. 9, 10 and

11, empowered the State Government by notification in the

official gazette to constitute Special Courts of criminal

Jurisdiction for such area as may be specified in the noti-

fication, to appoint Special Judges to preside over such

Courts and to invest them with jurisdiction to try such

offences or classes of offences or such eases or classes of

cases as the Government may, by general or special order in

writing, direct. The procedure laid down by

436

the Ordinance for trial before such Courts varied from the

normal procedure prescribed by the Criminal Procedure Code

in two material respects, viz., there was no provision for

trial by jury or with the aid of assessors, or for enquiry

before commitment to sessions. In exercise of the powers

conferred by this Ordinance the Government, by a notifica-

tion, constituted a Special Court for certain areas and

empowered that Court to try offences under sees. 183, 189,

302, 304, 307, 392 and certain other sections of the Indian

Penal Code which were specified in the notification.

It was contended on behalf of the appellant who had been

convicted by the Special Court under secs. 302, 307 and 392

of the Indian Penal Code read with sec. 34, that the Ordi-

nance of 1949 and the notification above-mentioned contra-

vened Art. 14 of the Constitution and were therefore ultra

vires and void:

Held, per PATANJALI SASTRI C.J, FAZL ALI, MUKHERJEA and

DAS JJ.--(MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR and Bose

JJ. dissenting)--That the impugned Ordinance in so far as it

authorised the State Government to direct offences or class-

es of offences or classes of cases to be tried by the Spe-

cial Court did not contravene the provisions of Art. 14 and

was not ultra vires or void. The notification issued under

the Ordinance was also not void.

PATANJALI SASTRI C.J.-- All legislative differentation

is not necessarily discriminatory. Discrimination involves

an element of unfavourable bias, and it is in that sense

that the expression has to be understood in the context.

Equal protection claims under Art. 14 are examined with the

presumption that the State action is reasonable and. justi-

fied. Though differing procedures might involve disparity

in treatment of persons tried under them, such disparity is

not. in itself sufficient to outweigh this presumption and

establish discrimation unless the degree of disparity goes

beyond what the reason for its existence demands, e.g., when

it amounts to a denial of a fair and impartial trial. The

impugned Ordinance having been passed to combat the increas-

ing tempo of certain types of regional crime, the two-fold

classification on the lines of type and territory adopted by

the said Ordinance read with the notification issued there-

under was reasonable, and the degree of disparity of treat-

ment involved was in no way in excess of what the situation

demanded.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 28

While on the one hand it cannot be said that any

variation of procedure which operates materially to the

disadvantage of the accused is discriminatory and violates

Art. 14, the other extreme view that Art. 14 provides no

further constitutional protection to personal liberty than

what is afforded by Art. 21 is also wrong,

FAZL ALI J.--A distinction must be drawn between "dis-

crimination without reason" and "discrimination with reason"

437

The whole doctrine of classification is based on this dis-

tinction and on the well-known fact that the circumstances

which govern one set of persons or objects may not neces-

sarily be the same as those governing another set of persons

or objects so that the question of unequal treatment does

not really arise as between persons governed by different

conditions and different sets of circumstances. The clear

recital of a definite objective in the earlier Ordinance and

the impugned Ordinance which amended it, furnished a tangi-

ble and rational basis of classification and the Ordinance

and the notification did not violate Art. 14. [The Legisla-

ture should however have recourse to legislation like this

only in very special circumstances.]

MUKHERJEA J.--Where the legislative policy is clear

and definite and as an effective method of carrying out that

policy a discretion is vested by the statute upon a body of

administrators or officers to make selective application of

the law to certain classes or groups of persons, the statute

itself cannot be condemned as a piece of discriminatory

legislation. In such cases, the power given to the execu-

tive body would import a duty on it to classify the subject

matter of legislation in accordance with the objective

indicated in the statute. If the administrative body pro-

ceeds to classify persons or things on a basis which has no

rational relation to the objective of the legislature, its

action can certainly be annulled as offending against the

equal protection clause.

The preamble of the main Ordinance (IX of 1948) taken

along with the surrounding circumstances disclosed a defi-

nite legislative policy and objective, and the impugned

Ordinance cannot therefore be held to be unconstitutional

merely because it vested in the Government the authority to

constitute Special Courts and to specify the classes

of,offences to be tried by such courts with a view to

achieve that objective. The notification issued by the

Government was also not void as it did not proceed on any

unreasonable or arbitrary basis but on the other hand there

was a reasonable relation between the classification made

b.y the notification and the objective that the legislation

had in view.

Though it is a sound and reasonable proposition that

when the nature of two offences is intrinsically the same

and they are punishable in the same manner, a person accused

of one should not be treated differently from a person

accused of the other, yet in determining the reach and scope

of a particular legislation it is not necessary for the

legislature to provide abstract symmetry. A too rigid

insistence on anything like scientific classification is

neither practicable nor desirable.

DAS J.--The relevant part of sec. 11 properly construed

and understood does not confer an uncontrolled and unguided

power on the State Government; on the contrary, the power

is controlled by the necessity of making a proper classifi-

cation

438

which is to be guided by the preamble in the sense that the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 28

classification must have a rational relation to the object

of the Ordinance as recited in the preamble. The classifica-

tion effected by the impugned Ordinance and the notification

thus satisfied the two conditions necessary for a valid

classification, viz., that it must not be arbitrary but must

be rounded on an intelligible differentia, and that differ-

entia must have a rational relation to the object sought to

be achieved by the Act. The Ordinance and the notification

did not therefore contravene Art. 14 of the Constitution.

MAHAJAN J.--Section 11 of the Ordinance suggests no

reasonable basis for classification either in respect of

offences or in respect of cases, nor has it laid down any

measure for the grouping either of persons or of cases or of

offences, by which measure these groups could be distin-

guished from those outside the purview of the Ordinance.

The words used in the preamble to the main Ordinance and the

fact that sec. 9 of the impugned Ordinance provides that the

power can be exercised for any particular area cannot limit

the plain and unambiguous language of sec. 11, and the said

section is therefore unconstitutional.

CHANDRASEKHARA AIYAR J.--Sections 9 and 11 do not lay

down any classification. The preamble to the earlier Ordi-

nance also indicates no classification as the object stated

there is a general one which has to be kept in view by every

enlightened Government or system of administration. The

classification adopted in the notification also is not a

rational one.

BOSE J.--The differentiation effected by the impugned

Ordinance and the notification issued thereunder travels

beyond bounds which are legitimate and the Ordinance there-

fore offends Art. 14 and is invalid.

Held also, per curiam, that the Ordinance was not in-

valid on the ground that it involved delegation of legisla-

tive powers.

The State of West Bengal v. Anwar Ali Sarkar

([1952] S.C.R. 284), In re Delhi Laws Act, 1912, etc.

([1951] S.C.R. 7471 and King Emperor v. Benoarilal Sarma [72

I.A. 57] referred to.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

15 of 1951.

Appeal under Arts. 132(1) and 134(1)(c) of the Constitu-

tion of India against the Judgment and Order dated 28th

February, 1951, of the High Court of Saurashtra at Rajkot

(Shah C.J. and Chhatpar J.) in Criminal Appeal No. 162 of

1950, The material facts appear in the Judgment.

S.L. Chibber (amicus curia ), for the appellant, B. Sen,

for the respondent.

439

1952. February 27. The following Judgments were

delivered.

PATANJALI SASTRI C.J.--This appeal raises questions

under article 14 of the Constitution more or less

similar to those dealt with by this Court in Criminal Appeal

No. 297 of 1951, The State of West Bengal v. Anwar Ali

Sarkar(1), and it was heard in part along with that appeal

but was adjourned to enable the respondent State to file an

affidavit explaining the circumstances which led to the

enactment of the Saurashtra State Public Safety Measures

(Third Amendment) Ordinance, 1949 (No. XLVI of 1949),

hereinafter referred to as the impugned Ordinance.

As in the West Bengal case, the jurisdiction of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 28

Special Court of Criminal Jurisdiction, which tried and

convicted the appellant, was challenged on the ground that

the impugned Ordinance, under which the Court was constitut-

ed, was discriminatory and void. The Objection was overruled

by the Special Judge as well as by the High Court of Sau-

rashtra on appeal and the appellant now seeks a decision of

this Court on the point.

The impugned Ordinance purports to amend the Saurashtra

State Public Safety Measures Ordinance (No. IX of 1948)

which had been passed "to provide for public safety, mainte-

nance of public order and preservation of peace and tran-

quillity in the State of Saurashtra", by the insertion of

sections 7 to 18 which deal with the establishment of Spe-

cial Courts of criminal jurisdiction in certain areas to try

certain classes of offences in accordance with a simplified

and shortened procedure. Section 9 empowers the State by

notification to constitute Special Courts for such 'areas as

may be specified in the notification and section 10 provides

for appointment of Special Judges to preside over such

courts. Section 11 enacts that the Special Judge shall try

"such offences or classes of offences or such cases or

classes of cases as the Government may, by general or

special order in writing; direct",

(1) Since reported as [1952] S.C.R. 284. 57

57

440

Then follow provisions prescribing the procedure applicable

to the trial of such offences. The only variations in

such procedure from the normal procedure in criminal trials

in the State consist of the abolition of trial by jury or

with the aid of assessors and the elimination of the inquiry

before commitment in sessions cases. Even under the normal

procedure trial by jury is not compulsory unless the Govern-

ment so directs (sections 268 and 269 (1)). while assessors

are not really members of the court and their opinion is not

binding on the judge with whom the responsibility for the

decision rests. Nor can the commitment proceeding in a

sessions case be said to be an essential requirement of a

fair and impartial, trial, though its dispensation may

involve the deprivation of certain advantages which an

accused person may otherwise enjoy. Thus the variations from

the normal procedure are by no means calculated to imperil

the chances of a fair and impartial trial.

In exercise of the power conferred by sections 9, 10

and 11, the Government issued the notification No. H/35-5-C

dated 9/11 February, 1950, directing that a Special Court

shall be constituted for certain special areas and that it

shall try certain specified offences which included offences

under sections 302, 307 and 392 read with section 34 of the

Indian Penal Code (as adapted and applied to the State of

Saurashtra) for which the appellant was convicted and sen-

tenced.

It is contended on behalf of the appellant that section

11 and the notification referred to above are discriminatory

in that the offences alleged to have been committed by the

appellant within the specified areas are required to be

tried by the Special Judge under the special procedure,

while any person committing the same offences outside those

areas would be tried by the ordinary courts under the ordi-

nary procedure. It is also urged that sections 9 and 11 by

empowering the State Government to establish a Special Court

and to direct it to try under a special procedure such

offences as may be notified by the Government, in effect,

authorise the Government to

441

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 28

amend section 5 of the Criminal Procedure Code read with the

Second Schedule (as adapted and applied to the State of

Saurashtra), which provides that "all offences under the

Indian Penal Code shall be investigated, enquired into,

tried and otherwise dealt with according to the provisions

hereinafter contained", and that delegation of such power to

the executive Government was beyond the competence of a

legislature and was, therefore, void.

On the first point, many of the considerations which

weighed with me in upholding the constitutionality of sec-

tion 5 (1) of the West Bengal Special Courts Act, which is

in identical terms with section 11 of the impugned Act,

apply a fortiori to the present case. The West Bengal case

(1) arose out of a reference by the State Government of

certain individual cases to the Special Court for trial and

1 there expressed the view that it was wrong to think that

classification was something that must somehow be discovera-

ble in every piece of legislation or it would not be legis-

lation. That way of regarding classification, I pointed out,

tended only to obscure the real nature of the problems for

which we have to find solution. In the present case, howev-

er, the State Government referred not certain individual

cases but offences of certain kinds committed in certain

areas and so the objection as to discriminatory treatment is

more easily answered on the line of reasoning indicated in

my judgment in the West Bengal case (1). Again, the varia-

tions from the normal procedure authorised by the impugned

Ordinance are less disadvantageous to the persons tried

before the Special Court than under the West Bengal Act. It

was, however, said that any variation in procedure which

operates materially to the disadvantage of such persons was

discriminatory and violative of article 14. On the other

hand, it was contended on behalf of the respondent State

that, in the field of personal liberty, the only constitu-

tional safeguards were those specifically. provided in

articles 20 to 22, and 'this Court having held in

(1) [1952] S.C.R.284.

442

Gopalan's case (1) that any procedure prescribed by law

satisfies the requirements of article 21 (the only article

relevant here) the impugned Ordinance which prescribes a

special procedure for trial of offences falling within its

ambit could not be held to be unconstitutional. Reliance

was placed on a decision of a Full Bench of the Hyderabad

High Court (Abdur Rahim and others v. Joseph A. 'Pinto and

others (2) which seems to lend some support to this view. I

am, however, of opinion that neither of these extreme con-

tentions is sound.

All legislative differentiation is not necessarily dis-

criminatory. In fact, the word "discrimination" does not

occur in article 14. The expression "discriminate against"

is used in article 15 (1) and article. 16(2), and it means,

according to the Oxford Dictionary, "to make an adverse

distinction with regard to; to distinguish unfavourably from

others". Discrimination thus involves an element of unfa-

vourable bias and it is in that sense that the expression

has to be understood in this context. If such bias is

disclosed and is based on any of the grounds mentioned in

articles 15 and 16, it may well be that the statute will,

without more, incur condemnation as violating a specific

constitutional prohibition unless it is saved by one or

other of the provisos to those articles. But the position

under article 14 is different. Equal protection claims

under that article are examined with the presumption that

the State action is reasonable and justified. This pre-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 28

sumption of constitutionality stems from the wide power of

classification which the legislature must, of necessity,

possess in making laws operating differently as regards

different groups of persons in order to give effect to its

policies. The power of the State to regulate criminal

trials by constituting different courts with different

procedures according to the needs of different parts of its

territory is an essential part of its police power--

(cf. Missouri v. Lewis)(3). Though the differing

(1) [1950] S.C.R. 88. (3) 101 U.S.22

(2) A.I.R. 1951 Hyderabad ll.

443

procedures might involve disparity in the treatment of the

persons tried under them, such disparity is not by itself

sufficient, in my opinion, to outweigh the presumption and

establish discrimination unless the degree of disparity goes

beyond what the reason for its existence demands as, for

instance, when it amounts to a denial of a fair and impar-

tial trial. It is, therefore, not correct to say that arti-

cle 14 provides no further constitutional protection to

personal liberty than what is afforded by article 21.

Notwithstanding that its wide general language is greatly

qualified in its practical application by a due recognition

of the State's necessarily wide powers of legislative clas-

sification, article 14 remains an important bulwark against

discriminatory procedural laws.

In the present case, the affidavit filed on behalf of

the respondent State by one of its responsible officers

states facts and figures relating to an increasing number

of incidents of looting, robbery, dacoity, nosecutting and

murder by marauding gangs of dacoits in certain areas of the

State, and these details support the claim that "the securi-

ty of the State and public peace were jeopardised and that

it became impossible to deal with the offences that were

committed in different places in separate courts of law

expeditiously." The statement concludes by pointing out that

the areas specified in the notification were the "main zones

of the activities of the dacoits as mentioned above." The

impugned Ordinance having thus been passed to combat the

increasing tempo of certain types of regional crime, the

two-fold classification on the lines of type and territory

adopted in the impugned Ordinance, read with the notifi-

cation issued thereunder, is, in my view, reasonable and

valid, and the degree of disparity of treatment involved is

in no way in excess of what the situation demanded.

On the second point, the appellant's learned counsel

claimed that the majority view in In re The Delhi Laws Act,

1912, etc.(1) supported his contention. He attempted to make

this out by piecing together certain dicta

(1) [1951] S.C.R. 747.

444

found in the several judgments delivered in that case. While

undoubtedly certain definite conclusions were reached by the

majority of the Judges who took part in the decision in

regard to the constitutionality of certain specified enact-

ments, the reasoning in each case was different and it is

difficult to say that any particular principle has been laid

down by the majority which can be of assistance in the

determination of other cases. I have there expressed my

view that legislatures in this country have plenary authori-

ty to delegate their power to make laws to subordinate

agencies of their choice and such delegation, however inex-

pedient or undesirable politically, is constitutionally

competent. I accordingly reject this contention. It follows

that the Special Judge had jurisdiction to try the appellant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 28

and the persons accused along with him.

As the majority concur in overruling the preliminary

objection the appeal will be heard on the merits.

FAZL ALI J.--This is an appeal by one Kathi Raning

Rawat, who has been convicted under sections 302, 307 and

392. read with section 34 of the Indian Penal Code and

sentenced to death and to seven years' rigorous imprison-

ment. The appellant was tried by a Special Court constitut-

ed under the Saurashtra State Public Safety Measures(Third

Amendment) Ordinance, 1949 (Ordinance No. LXVI of 1949),

which was issued by the Rajpramukh of Saurashtra on the 2nd

November, 1949, and his conviction and sentence were upheld

on appeal by the State High Court. He has preferred an

appeal to this Court against the decision of the High Court.

The principal question which arises in this appeal is

whether the Ordinance to which reference has been made is

void under article 13(1) of the Constitution on the ground

that it violates the provisions of article 14. It appears

that on the 5th April, 1948, the Rajpramukh of Saurashtra

State promulgated an Ordinance called the Criminal Proce-

dure Code, 1898 (Adaptation) Ordinance, 1948 (Ordinance No.

XII of

445

1948), by which "the Criminal Procedure Code of the Dominion

of India as in force in that Dominion on the 1st day of

April, 1948" was made applicable to the State of Saurashtra

with certain modifications. In the same month, another

Ordinance called the Saurashtra State Public Safety Measures

Ordinance (Ordinance No. IX of 1948) was promulgated, which

provided among other things for the detention of persons

acting in a manner prejudicial to public safety, maintenance

of public order and peace and tranquillity in the State.

Subsequently, on the 5th November, 1949, the Ordinance with

which we are concerned, namely, the Saurashtra State Public

Safety Measures (Third Amendment) Ordinance, 1949, was

promulgated, which purported to amend the previous Ordinance

by inserting in it certain provisions which may be summa-

rised as follows :--

Section 9 of the Ordinance empowers the State Government

by notification in the Official Gazette to constitute Spe-

cial Courts of criminal jurisdiction for such area as may be

specified in the notification. Section 11 provides that a

Special Judge shall try such offences or classes of offences

or such cases or classes of cases as the State Government

may, by general or special order in writing, direct. Sec-

tions 12 to 18 lay down the procedure for the trial of cases

by the Special Judge, the special features of which are as

follows :--

(1) The Special Judge may take cognizance offences

without the accused being committed to his court for trial;

(2) There is to be no trial by jury or with the aid of

assessors;

(3) The Special Judge should 'ordinarily record a memo-

randum only of the substance of the evidence of each wit-

ness; and

(4) The person convicted has to appeal to the High Court

within 15 days from the date of the sentence.

446

The Ordinance further provides that the provisions of

sections 491 and 526 of the Code of Criminal Procedure shall

not apply to any person or case triable by the Special

Judge, and the High Court may call for the record of the

proceedings of any case tried by a Special Judge and may

exercise any of the powers conferred on an appellate court

by sections 423, 426, 427 and 428 of the Code.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 28

From the foregoing summary of the provisions of the

Ordinance, it will appear that the difference between the

procedure laid down in the Criminal Procedure Code and the

procedure to be followed by the Special Judge consists

mainly in the following matters:-

(1) Where a case is triable by a court of session, no

commitment proceeding is necessary, and the Special Judge

may take cognizance without any commitment;

(2) The trial shall not be by jury or with the aid of

assessors;

(3) Only a memorandum of the substance of the evidence

of. each witness is ordinarily to be recorded;

(4) The period of limitation for appeal to the High Court

is curtailed; and

(5) No court has jurisdiction to transfer any case from

any Special Judge, or to make an order under section 491 of

the Criminal Procedure Code.

It appears that pursuant to the provisions contained in

sections 9, 10 and 11 of the Ordinance, the State Government

issued a Notification No. H/35-5-C, dated the 9/11th Febru-

ary, 1951, directing the constitution of a Special Court for

certain areas mentioned in a schedule attached to the Noti-

fication and empowering such court to try the following

offences, namely, offences under sections 183, 189, 190,

212, 216, 224, 302, 304, 307, 323-335, 341-344, 379-382,

384-389 and 392-402 of the Indian Penal Code, 1860, as

adapted and applied to the State of Saurashtra, and most of

t, be offences under the. Ordinance of 1948.

447

In the course of the hearing, an affidavit was filed by

the Assistant Secretary in the Home Department of the Sau-

rashtra Government, stating that since the integration of

different States in Kathiawar in the beginning of 1948 there

had been a series of crimes against public peace and that

had led to the promulgation of Ordinance No. IX of 1948,

which provided among other things for detention of persons

acting in a manner prejudicial to public safety and mainte-

nance of public order in the State. Notwithstanding this

Ordinance, the crimes went on increasing and there occurred

numerous cases of dacoity, murder, nosecutting, ear-cutting,

etc. for some of which certain notorious gangs were respon-

sible, and hence Ordinance No. LXVI of 1949 was promulgated

to amend the earlier Ordinance and to constitute Special

Courts for the speedy trial of cases arising out of the

activities of the dacoits and other criminals guilty of

violent crimes.

As has been already indicated, the main contention

advanced before us on behalf of the appellant is that the

Ordinance of 1949 violates the provisions of article 14 of

the Constitution, by laying down a procedure which is dif-

ferent from and less advantageous to the accused than the

ordinary procedure laid down in the Criminal Procedure Code,

and thereby discriminating between persons who are to be

tried under the special procedure and those tried under the

normal procedure. In support of this argument, reliance is

placed on the decision of this court in The Slate of West

Bengal v. Anwar Ali Sarkar and Gajen Mali (Cases Nos. 297

and 298 of 1951) (1), in which certain provisions of the

West Bengal Special Courts Act, 1949, have been held to be

unconstitutional on grounds similar to those urged on behalf

of the appellant in the present ease. A comparison of the

provisions of the Ordinance in question with those of the

West Bengal Act will show that several of the objectionable

features in the latter enactment do not appear in the Ordi-

nance,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 28

(1) [1952] S.C.R. 284.

58

448

but, on the whole, I am inclined to think that that circum-

stance by itself will not afford justification for upholding

the Ordinance. There is however one very important differ-

ence between the West Bengal Act and the present Ordinance

which, in my opinion, does afford such justification, and I

shall try to refer to it as briefly as possible.

I think that a distinction should be drawn between"dis-

crimination without reason" and' 'discrimination with rea-

son". The whole doctrine of classification is based on this

distinction and on the well-known fact that the circum-

stances which govern one set of persons or objects may not

necessarily be the same as those governing another set of

persons or objects, so that the question of unequal treat-

ment does not really arise as between persons governed by

different conditions and different sets of circum-

stances. The main objection to the West Bengal Act was

that it permitted discrimination "without reason" or with-

out any rational basis. Having laid down a procedure which

was materially different from and less advantageous to the

accused than the ordinary procedure, that Act gave uncon-

trolled and unguided authority to the State Government to

put that procedure into operation in the trial of any case

or class of cases or any offence or class of offences.

There was no principle to be found in that Act to control

the application of the discriminatory provisions or to

correlate those provisions to some tangible and rational

objective, in such a way as to enable anyone reading the Act

to say :--If that is the objective, the provisions as to

special treatment of the offences seem to be quite suitable

and there can be no objection to dealing with a particular

type of offences on a special footing. The mere mention of

speedier trial as the object of the Act did not cure the

defect, because the expression "speedier trial" standing by

itself provided no rational basis of classification. It

was merely a description of the result sought to be

achieved by the application of the special procedure laid

down in the Act' and afforded no help in determining what

cases required speedier trial.

449

As regards the present Ordinance, we can discover a

guiding principle within its four corners, which cannot but

have the effect of limiting the application of the special

procedure to a particular category of offences only and

establish such a nexus (which was missing in the West Bengal

Act) between offences of a particular category and the

object with which the Ordinance was promulgated, as should

suffice to repel the charge of discrimination and furnish

some justification for the special treatment of those of-

fences. The Ordinance, as I have already stated, purported

to amend another Ordinance, the object of which was to

provide for public safety, maintenance of public order and

preservation of peace and tranquillity in the State. It was

not disputed before us that the preamble of the original

Ordinance would govern the amending Ordinance also, and

the object of promulgating the subsequent Ordinance was the

same as the object of promulgating the original Ordinance.

Once this is appreciated, It is easy to see that there is

something in the Ordinance itself to guide the State Govern-

ment to apply the special procedure not to any and every

case but only to those cases or offences which have a ra-

tional relation to, or connection with, the main object

and purpose of the Ordinance and which for that reason

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 28

become a class by themselves requiring to be dealt with on

a special footing. The clear recital of a definite objective

furnishes a tangible and rational basis of classification to

the State Government for the purpose of applying the provi-

sions of the Ordinance and for choosing only such offences

or cases as affect public safety, maintenance of public

order and preservation of peace and tranquillity. Thus,

under section 11, the State Government is expected to

select only such offences or class of offences or class of

cases for being tried by the special court in accordance

with the special procedure, as are calculated to affect

public safety, maintenance of public order, etc., and under

section 9, the use of the special procedure must necessarily

be confined to only disturbed areas or those areas where

adoption of

450

public safety measures is necessary. That this is how the

Ordinance was intended to be understood and was in fact

understood, is confirmed by the Notification issued on the

9/11th February by the State Government in pursuance of the

Ordinance. That Notification sets out 49 offences under the

Indian Penal Code as adapted and applied to the State and

certain other offences punishable under the Ordinance, and

one can see at once that all these offences directly

affect the maintenance of public order and peace and tran-

quillity. The Notification also specifies certain areas

in the State over which only the special court is to

exercise jurisdiction. There can be no dispute that if the

State Legislature finds that lawlessness and crime are

rampant and there is a direct threat to peace and tranquil-

lity in certain areas within the State, it is competent to

deal with offences which affect the maintenance of public

order and preservation of peace and tranquillity in those

areas as a class by themselves and to provide that such

offences shall be tried as expeditiously as possible in

accordance with a special procedure devised for the purpose.

This, in my opinion, is in plain language the rationale of

the Ordinance, and it will be going too far to say that in

no case and under no circumstances can a legislature lay

down a special procedure for the trial of a particular class

of offences, and that recourse to a simplified and less

cumbrous procedure for the trial of those offences, even

when abnormal conditions prevail, will amount to a violation

of article 14 of the Constitution. I am satisfied that

this case is distinguishable from the case relating to the

West Bengal Act, but I also feel that the legislatures

should have recourse to legislation such as the present only

in very special circumstances. The question of referring

individual cases to the special court does not arise in this

appeal, and I do not wish to express any opinion on it.

Certain other points were urged on behalf of the appel-

lant, namely, that the Ordinance suffers from excessive

delegation of legislative authority, and that

451

the Rajpramukh had exceeded his powers in amending the

provisions of the Criminal Procedure Code. These contentions

were found to be devoid of all force and have to be reject-

ed.

In the result, I would hold that the Saurashtra State

Public Safety Measures (Third Amendment) Ordinance is not

unconstitutional, and accordingly overrule the objection as

to the jurisdiction of the special court to try the appel-

lant.

MAHAJAN J.--The principal point for decision in the appeal

is whether section 11 of the Saurashtra State Public Safety

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 28

Measures (Third Amendment) Ordinance (No. LXVI), 1949. which

came into force on 2nd November, 1949, is hit by article 14

of the Constitution inasmuch as it mentions no basis for the

differential treatment prescribed in the Ordinance for trial

of criminals in certain cases and for certain offences.

Section 11 of the Ordinance is in these terms :--

"A Special Judge shall try such offences or classes of

offences or such cases or classes of cases as the Government

of the United State of Saurashtra may, by general or special

order in writing, direct."

This section is in identical terms with section 5(1) of

the West Bengal Special Courts Act (Act X of 1950). Section

5(1) of that Act provided as follows :--

"A Special Court shall try such offences or classes of

offences or cases or classes of cases, as the State Govern-

ment may, by general or special order in writing, direct."

The question whether section 5(1) of the Bengal Act (X of

1950) was hit by article 14 of the Constitution was an-

swered in the affirmative by this court in The State of

West Bengal v. Anwar Ali Sarkar etc.(1) In that case I was

of the opinion that even if the statute on the face of it

was not discriminatory, it was so in its effect and opera-

tion inasmuch as it vested in the executive government

unregulated official discretion and therefore had to be

adjudged unconstitutional. Section 11 of the Ordinance,

like section 5(1)

(1) [1952] S.C.R. 284.

452

of the West Bengal Act, suggests no reasonable basis or

classification either in respect of offences or in respect

of cases. It has laid down no measure for the grouping

either of persons or of cases or of offences by which meas-

ure these groups could be distinguished from those outside

the purview of the special Act. The State Government can

choose a case of a person similarly situate and hand it over

to the special tribunal and leave the case of another person

in the same circumstances to be tried by the procedure laid

down in the Criminal Procedure Code. It can direct that the

offence of simple hurt be tried by the special tribunal

while a more serious offence be tried in the ordinary way.

The notification in this case fully illustrates the point.

Offence of simple hurt punishable with two years' rigorous

imprisonment is included in the list of offences to be tried

by the Special Judge, while a more serious offence of the

same kind punishable with heavier punishment under section

308 is excluded from the list. It is the mischief of section

11 of the Ordinance that makes such discrimination possible.

To my mind, offences falling in the group of sections 302

to 308, Indian Penal Code. possess common characteristics

and the appellant can reasonably complain of hostile dis-

crimination. I am therefore of the opinion that section 11

of the Ordinance is unconstitutional and the conviction of

the appellant under the Ordinance by the special judge is

bad and must be quashed. There will be a retrial of the

appellant under the procedure prescribed by the Code of

Criminal Procedure.

The contention of the learned counsel for the State

that the provisions of the Ordinance are in some respects

distinguishable from the provisions of the West Bengal

Special Courts Act cannot be sustained. Reference was made

to section 9 of the Ordinance which is in these terms :-

"The Government of the United State of Saurashtra

may by notification in the official gazette constitute

Special Courts of criminal jurisdiction for such area as may

be specified in the notification."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 28

453

This section is in the same terms as section 3 of the West

Bengal Special Courts Act. It only empowers the State

Government to constitute Special Courts for any area or for

the whole of the State of Saurashtra in the like manner in

which section 3 empowered the West Bengal Government to

constitute special courts for the whole of the State or any

particular area, It does not in any way limit or curtail

the power conferred on the State Government by the provi-

sions of section 11. Reference was also made to the pream-

ble of the original Ordinance which uses the familiar con-

ventional phraseology:

"An Ordinance to provide for public safety, maintenance

of public order and preservation of peace and tranquillity

in the State of Saurashtra."

These words cannot limit the plain and unambiguous language

of section 11 of the Ordinance which authorises the State

Government to send any case or commit persons guilty of any

offence to the special judge for trial by the procedure

prescribed in the Ordinance.

MUKHERJEA J.--The appellant before us was tried,along with

two other persons, by the Special Judge, Court of Criminal

Jurisdiction, Saurashtra State, on charges of murder, at-

tempted murder and robbery under sections 302, 307 and 392

of the Indian Penal Code read with section 34. By his

judgment dated 20th December, 1950, the Special Judge con-

victed the appellant on all the three charges and sentenced

him to death under section 302 and to seven years' rigorous

imprisonment both under sections 307 and 392 of the Indian

Penal Code. The conviction and sentences were upheld by the

High Court of Saurashtra on appeal. The appellant has now

come to this court on the strength of a certificate granted

by the High Court under articles 132(1) and 134(1)(c) of the

Constitution.

The appeal has not been heard on its merits as yet. It was

set down for hearing on certain preliminary points of law

raised by the learned counsel for the appellant attacking

the legality of the entire trial on the ground that section

11 of the Saurashtra Public

454

Safety Measures Ordinance No. XLVI of 1949 passed by the

Rajpramukh of Saurashtra as well as the Notification issued

by the State Government on 9/11th February, 1951, under

which the Special Court was constituted and the trial held,

were void and inoperative. The first and the main ground

upon which the constitutional validity of the section and

the notification has been assailed is that they are in

conflict with the provision of article 14 of the Constitu-

tion. The other point raised is that the provision of

section 11

the Ordinance is illegal as it amounts to delegation

of essential legislative powers by the State Legislature to

the Executive.

So far as the first point is concerned, the learned

counsel for the appellant has placed great reliance upon the

majority decision of this court in two analogous appeals

from the Calcutta High Court (being cases Nos. 297 and 298

of 1951)(1), where a similar question arose in regard to the

validity of section 5 (1) of the West Bengal Special Courts

Act, 1950. In fact, it was because of our pronouncement in

the Calcutta appeals that it was considered desirable to

have the present case heard on the preliminary points of

law.

It is not disputed that the language of section 11 of

the Saurashtra Ordinance, with which we are now concerned,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 28

is identically the same as that of section 5 (1) of the West

Bengal Special Courts Act. The wording of the section is as

follows:

"11. Jurisdiction of Special Judges--A Special Judge

shall try such offences or classes of offences or such cases

or classes of cases as the Government of the United State of

Saurashtra may, by general or special order in writing,

direct."

In the West Bengal Act there is a further provision em-

bodied in clause (2) of section 5 which lays down that no

such direction as is contemplated by clause (1) could be

given in respect of cases pending before ordinary criminal

courts at the date when the Act came into force. No such

exception has been made in the Saurashtra Ordinance. In the

Calcutta cases referred

(1) Since reported as [1952] S.C.R. 284

455

to above, the notification under section 5(1) of the West

Bengal Act directed certain individual cases in which speci-

fied persons were involved to be tried by the Special Court

and it was held by the High Court of Calcutta that section 5

(1) of the West Bengal Special Courts Act to the extent that

it empowers the State Government to direct any case to be

tried by Special Courts was void as offending against the

provision of the equal protection clause in article 14 of

the Constitution; and this view was affirmed in appeal by a

majority of this court, With regard to the remaining part of

section 5(1), which authorises the State Government to

direct, "offences, classes of offences...or classes of

cases" for trial by Special Courts, the majority of the

Judges of the Calcutta High Court were of opinion that it

was not obnoxious to article 14 of the Constitution. In the

present case the notification, that was issued by the Sau-

rashtra State Government on 9/11th February, 1951, did not

relate to individual cases. The notification constituted in

the first place a Special Court in the areas specified in

the schedule. It appointed in the next place a judge to

preside over the Special Court and finally gave a list of

offences with reference to appropriate sections of the

Indian Penal Code which were to be tried by the Special

Judge. If the view taken by the Chief Justice of the Cal-

cutta High Court and the majority of his colleagues is

right, such notification and that part of section 11 of the

Ordinance, under which it was issued, could not be chal-

lenged as being in conflict with article 14 of the Constitu-

tion. This point did come up for consideration before us in

the appeals against the Calcutta decision with reference to

the corresponding part of section 5 (1) of the West Bengal

Act, but although a majority of this court concurred in

dismissing the appeals, there was no such majority in the

pronouncement of any final opinion on this particular point.

In my judgment in the Calcutta appeals I was sceptical

about the correctness of the view taken upon this point by

the learned Chief Justice of the Calcutta High Court and the

majority of his colleagues. The

59

456

consideration that weighed with me was that as the learned

Judges were definitely of opinion that the necessity of

speedier trial., as set out in the preamble, was too elusive

and uncertain a criterion to form the basis of a proper

classification, the authority given by section 5 (1) of the

Special Courts Act to the State Government to direct any

class of cases or offences' to be tried by the Special Court

would be an unguided authority and the propriety of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 28

classification made by the State Government that is said to

be implied in the direction could not be tested with refer-

ence to any definite legislative policy or standard. Mr.

Sen appearing for the State of Saurashtra, has argued be:

fore us that in this respect the Saurashtra Ordinance stands

on a different footing and he has referred in this connec-

tion to the preamble to the original ordinance as well as

the circumstances which necessitated the present one. As

the question is an important one and is not concluded by our

previous decision, it merits, in my opinion, a careful

consideration.

It may be stated at the outset that the Criminal

Procedure Code of India as such has no application to the

State of Saurashtra. After the State acceded to the Indian

Union, there was an Ordinance promulgated by the Rajpramukh

on 5th of April, 1948, which introduced the provisions of

the Criminal Procedure Code of India (Act V of 1898) with

certain modifications into the Saurashtra State. Another

ordinance, known as the Public Safety Measures Ordinance,

was passed on the 2nd of April, 1948, and this ordinance,

like similar other public safety measures obtaining in other

States, provided for preventive detention, imposition of

collective fines, control of essential supplies and similar

other matters. On 11th of November, 1949, the present

ordinance was passed by way of amendment of the Public

Safety Measures Ordinance and inter alia it made provisions

for the establishment of special courts. Section 9 of this

Ordinance empowers the State Government to constitute spe-

cial courts of criminal.jurisdiction for such areas as may

be specified in the notification. Section 10 relates to

appointment.

457

of Special Judges who are to preside over such courts and

section 11 lays down that the Special Judge shall try "such

offences or classes of offences......... or classes of

cases as the Government of United State of Saurashtra may,

by general or special order in writing, direct." The proce-

dure to be followed by the Special Judges is set out in

sections 12 to 18 of the Ordinance. In substance the Spe-

cial Court is given the status of a sessions court, although

committal proceeding is eliminated and so also is trial by

jury or with the aid of assessors. The Special Judge has

only to make a memorandum of the evidence and he can refuse

to summon any witness if he is satisfied after examination

of the accused that the evidence of such witness would not

be material. Section 16 (1) curtails the period of limita-

tion within which an accused convicted by the Special Judge

has to file his appeal before the High Court and clause (3)

of the section provides that no court shall have jurisdic-

tion to transfer any case from any Special Judge or make any

order under section 491 of the Criminal Procedure Code. The

ordinance certainly lacks some of the most objectionable

features of the West Bengal Act. Thus it has not taken away

the High Court's power of revision, nor does it expose the

accused to the chance of being convicted of a major offence

though he stood charged with a minor one. There is also no

provision in the ordinance similar to that in the West

Bengal Act which enables the court to proceed with the trial

in the absence of the accused. But although the ordinance in

certain respects compares favourably with the West Bengal

Act, the procedure which it lays down for the Special Judge

to follow does differ on material points from the normal

procedure prescribed in the Criminal Procedure Code; and as

these differences abridge the rights of the accused who are

to be tried by the Special Court, and deprive them of cer-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 28

tain benefits to which they would otherwise have been enti-

tled under the general law, the ordinance prima facie makes

discrimination and the question has got to be answered

whether such discrimination brings it in conflict with

article 14 of the Constitution.

458

The nature and scope of the guarantee that is implied in

the equal protection clause of our Constitution have been

explained and discussed in more than one decision of this

court and do not require repetition. It is well settled that

a legislature for the purpose of dealing with the complex

problems that arise out of an infinite variety of human

relations, cannot but proceed upon some sort of selection or

classification of persons upon whom the legislation is to

operate. The consequence of such classification would un-

doubtedly be to differentiate the persons belonging to that

class from others, but that by itself would not make the

legislation obnoxious to the equal protection clause. Equal-

ity prescribed by the Constitution would not be violated if

the statute operates equally on all persons who are included

in the group, and the classification is not arbitrary or

capricious, but bears a reasonable relation to the objective

which the legislation has in view. The legislature is given

the utmost latitude in making the classification and it is

only when there is a palpable abuse of power and the differ-

ences made have no rational relation to the objectives of

the legislation, that necessity of judicial interference

arises.

Section 11 of the Saurashtra Ordinance so far as it is

material for our present purpose lays down that a Special

Court shall try such offences or classes of offences...or

classes of cases as the State Government may....direct".

This part of the section undoubtedly contemplates a classi-

fication to be made of offences and cases but no classifica-

tion appears on the terms of the statute itself which merely

gives an authority to the State Government to determine what

classes of cases or offences are to be tried by the special

tribunal. The question arises at the outset as to whether

such statute is not on the face of it discriminatory as it

commits to the discretion of an administrative body or

officials the duty of making selection or classification for

purposes of the legislation; and there is a still further

question, namely, by what tests, if any, is the propriety of

the administrative action to be adjudged and what would be

the remedy of the aggrieved person if the

459

classification made by the administrative body is arbitrary

or capricious ?

It is a doctrine of the American courts which seems to

me to be well-founded on principle that the equal protection

clause can be invoked not merely where discrimination ap-

pears on the express terms of the statute itself, but also

when it is the result of improper or prejudiced execution of

the law (1). But a statute will not necessarily be condem-

ned as discriminatory, because it does not make the classi-

fication itself but, as an effective way of carrying out its

policy, vests the authority to do it in certain officers or

administrative bodies. Illustrations of one class of such

cases are to be found in various regulations in the U.S.A.

which are passed by States in exercise of police powers for

the purposes of protecting public health or welfare or to

regulate trades, business and occupations which may become

unsafe or dangerous when unrestrained. Thus there are regu-

lations where discretion is lodged by law in public officers

or boards to grant or withhold licence to keep taverns or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 28

sell spirituous liquors(2), or other commodities like

milk(3) or cigarettes(4). Similarly, there are regulations

relating to appointment of river pilots(5) and other

trained men necessary for particularly difficult jobs

and in such cases, ordinarily, conditions are laid down by

the statute, on compliance with which a candidate is consid-

ered qualified. But even then the appointment board has got

a discretion to exercise and the fact of the candidate for a

particular post is submitted to the judgment of the officer

or the board as the case may be. It is true that these cases

are of a somewhat different nature than the one we are

dealing with; but it seems to me that the principle underly-

ing all these cases is the same. The whole problem is one

of choosing the method by which the legislative policy is to

be effectuated. As has been observed by Frankfurter J. in

(1) Vide Weaver on Constitutional Law, p. 404.

(2)Crowley v. Uhristensen, 137 U.S. 86.

(3) People of the State of New York v. Job. E, Van De

Carr, 199 U.S.552.

(4) Gundling v. Chicago, 177 U.S. 183.

(5) Kotch v. Board of River Port Pilot Commissioners,

330 U.S.552.

460

Tinger v. Texas(1), "laws are not abstract

propositions...but are expressions of policy arising out of

specific difficulties addressed to the attainment of specif-

ic ends by the use of specific remedies." In my opinion, if

the legislative policy is clear and definite and as an

effective method of carrying out that policy a discretion is

vested by the statute upon a body of administrators or

officers to make selective application of the law to certain

classes or groups of persons, the statute itself cannot be

condemned as a piece of discriminatory legislation. After

all "the law does all that is needed when it does all that

it can, indicates a policy.... and seeks to bring within

the lines all similarly situated so far as its means

allow(2)''. In such eases, the power given to the executive

body would import a duty on it to classify the subject-

matter of legislation in accordance with the objective

indicated in the statute. The discretion that is conferred

on official agencies in such circumstances is not an un-

guided discretion; it has to be exercised in conformity with

the policy to effectuate which the direction is given and it

is in relation to that objective that the propriety of the

classification would have to be tested. If the administra-

tive body proceeds to classify persons or things on a basis

which has no rational relation to the objective of the

legislature, its action can certainly be annulled as offend-

ing against the equal protection clause. On the other hand,

if the statute itself does not disclose a definite policy or

objective and it confers authority on another to make selec-

tion at its pleasure, the statute would be held on the face

of it to be discriminatory irrespective of the way in which

it is applied. This, it seems to me, is the true principle

underlying the decision of the Supreme Court of America in

Yick Wo v. Hopkins(3). The object of the ordinance of the

City and County of San Francisco, which came up for consid-

eration in that case, was, as found by the court, not to

regulate laundry business in that locality in the interests

of the general public(4). The business was

(1) 310 U.S. 141 at 147.

(2) Vide Buck v. Belt, 274 U.S. 200, 208.

(3) 118 U. S. 356.

(4) Vide the observations of Field J. in Crowley v. Chris-

tensen, 137 U.S. 86,94.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 28

461

harmless in itself and useful to the community. No policy

was indicated or object declared by the legislature, but an

uncontrolled discretion was given to the Board of Supervi-

sors who could refuse license at their pleasure to anybody

carrying on laundry business in wooden buildings. The

classification contemplated by the statute was an arbitrary

classification depending on the caprice of the Board, and

consequently it was condemned as discriminatory on the face

of it;its application against the Chinese was a confirmation

of the discriminatory character and the really hostile

intention of the legislation. I would be inclined to think

that the West Bengal case, which we have decided already,

comes within the purview of this principle, as the desira-

bility of "speedier trial", which is hinted at in the pream-

ble to the West Bengal Act, is too vague, elusive and uncer-

tain a thing to amount to an enunciation of a definite

policy or objective on the basis of which any proper classi-

fication could be made. the matter has been left to the

unfettered discretion of the State Government which can

classify offences or cases in any way they like without

regard to any objective and as such the statute is open to

the challenge of making arbitrary discrimination. The point

that requires consideration is, whether the Saurashtra

Ordinance presents any distinguishing features or occupies

the same position as the West Bengal Act ?

As has been stated already, section 11 of the Saurash-

tra Ordinance is worded in exactly the same manner as sec-

tion 5(1) of the West Bengal Special Courts Act; and that

part of it, with which we are here concerned, authorises the

State Government to direct any classes of offences or cases

to be tried by the special tribunal. The State Government,

therefore, has got to make a classification of cases or

offences before it issues its directions to the Special

Court. The question is, on what basis is the classification

to be made ? If it depends entirely upon the pleasure of the

State Government to make any classification it likes, with-

out any guiding principle at all. it cannot certainly be a

proper classification, Which requires that a reasonable

relation must exist

462

between the classification and the objective that the legis-

lation has in view. On the other hand, if the legislature

indicates a definite objective and the discretion has been

vested in the State Government as a means of achieving that

object, the law itself, as I have said above, cannot be held

to be discriminatory, though the action of the State Govern-

ment may be condemned if it offends against the equal pro-

tection clause, by making an arbitrary selection. Now, the

earlier ordinance, to which the present one is a subsequent

addition by way of amendment, was passed by the Rajpramukh

of Saurashtra on 2nd April, 1948. It is described as an

ordinance to provide for the security of the State, mainte-

nance of public order and maintenance of supplies and serv-

ices essential to the community in the State of Saurashtra.

The preamble to the ordinance sets out the objective of the

ordinance in identical terms. It is to be noted that the

integration of several States in Kathiawar which now form

the State of Saurashtra, was completed some time in Febru-

ary, 1948. It appears from the affidavit of an officer of

the Home Government of the Saurashtra State that soon after

the integration took place, an alarming state of lawlessness

prevailed in some of the districts within the State. There

were gangs of dacoits operating at different places and

their number began to increase gradually. As ordinary law

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 28

was deemed insufficient to cope with the nefarious activi-

ties of those criminal gangs, the Saurashtra Public Safety

Measures Ordinance was promulgated by the Rajpramukh on 2nd

April, 1948. The ordinance, as stated already, provided

principally for preventive detention and imposition of

collective fines'; and it was hoped that armed with these

extraordinary powers the State Government would be able to

bring the situation under control. These hopes, however,

were belied, and the affidavit gives a long list of offences

in which murder and nose-cutting figure conspicuously in

addition to looting and dacoity, which were committed by the

dacoits during the years 1948 and 1949. In view of this

ugly situation in the Star, the new Ordinance was

463

passed on 11th of November, 1949, and this ordinance pro-

vides inter alia for the establishment of Special Courts

which are to try offenders under a special procedure.

Acting under section 11 of the Ordinance, the Government

issued a notification on 9/11th February, 1950, which Con-

stituted a Special Court for areas specified in the sched-

ule. and here again the affidavit shows that all these areas

are included in the districts of Gohilwad, Madhya Saurashtra

and Sorath, where the tribe of marauders principally flour-

ished. The object of passing this new ordinance is identi-

cally the same for which the earlier ordinance was passed,

and the preamble to the latter, taken along with the sur-

rounding circumstances. discloses a definite legislative

policy which has been sought to be effectuated by the dif-

ferent provisions contained in the enactment. If Special

Courts were considered necessary to cope with an abnormal

situation. it cannot be said that the vesting of authority

in the State Government to select offences for trial by such

courts is in any way unreasonable.

In the light of the principles stated already, I am

unable to hold that section 11 of the Ordinance in so far as

it authorises the State Government to direct classes of

offences or cases to be tried by the Special Court offends

against the provision of the equal protection clause in our

Constitution. If the notification that has been issued by

the State Government proceeds on any arbitrary or unreasona-

ble basis, obviously that could be challenged as unconstitu-

tional. It is necessary, therefore, to examine the terms of

the notification and the list of offences it has prescribed.

The notification, as said above, constitutes a Special

Court for the areas mentioned in the Schedule and appoints

Mr. P.P. Anand as a Special Judge to preside over the Spe-

cial Court. The offences triable by the Special Court are

then set out with reference to the specific sections of the

Indian Penal Code. Mr. Chibber attacks the classification of

offences made in this list primarily on the ground that

while it mentions offences of a particular character, it

excludes at the same time other offences of a cognate char-

acter in reference to

60

464

which no difference in treatment is justifiable. It is

pointed out that while section 183 of the Indian Penal Code

is mentioned in the list, sections 184, 186 and 188 which

deal with similar offences are excluded. Similarly the list

does not mention section 308, Indian Penal Code, though it

mentions section 307. The learned counsel relies in this

connection upon the decision of the Supreme Court of America

in Skinner v. Oklahoma(1). In that case the question for

consideration related to the constitutionality of a certain

statute of Oklahoma which provided for sterilization of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 28

certain habitual criminals who were convicted two or more

times in any State of felony involving moral turpitude. The

statute applied to persons guilty of larceny, which was a

felony, but not to embezzlement, and it was held that the

legislation violated the equal protection clause. It is

undoubtedly a sound and reasonable proposition that when the

nature of two offences is intrinsically the same and they

are punishable in the same manner, a person accused of one

should not be treated differently from a person accused of

the other, because it is an essential principle underlying

the equal protection clause that all persons similarly

circumstanced shall be treated alike both in privileges

conferred and liabilities imposed. At the same time it is

to be noted as Douglas J. observed in the very case that in

determining the reach and scope of particular legislation it

is not necessary for the legislature to provide abstract

symmetry. "It may mark and set apart the classes and types

of problems according to the needs and as dictated or sug-

gested by experience." A too rigid insistance therefore on

a thing like scientific classification is neither practica-

ble nor desirable. It is true that the notification men-

tions section 183 of the Indian Penal Code, though it omits

section 184; but I am unable to hold that the two are iden-

tically of the same nature. Section 183 deals with resist-

ance to the taking of property by the lawful authority of

public servant; while section 184 relates to obstructing

sale of property offered for sale

(1) 316 U. S. 535.

465

by authority of public servant. Section 186 on the other

hand does not relate to the taking of property at all, but

is concerned with obstructing a public servant in the dis-

charge of his public duties. Then again I am not sure that

it was incumbent upon the State Government to include

section 308, Indian Penal Code, in the list simply

because they included section 307. It is true that culpable

homicide as well as attempt to murder are specified in the

list; but an attempt to commit culpable homicide is certain-

ly a less heinous offence and the State Government might

think it proper, having regard to all the facts known to

them, that an offence of attempt to commit culpable homicide

does not require a special treatment.

Be that as it may, I do not think that a meticulous

examination of the various offences specified in the list

with regard to their nature and punishment is necessary for

purposes of this case. The appellant before us was accused

of murder punishable under section 302 of the Indian Penal

Code. There is no other offence, I believe, described in

the Indian Penal Code, which can be placed on an identical

footing as murder. Even culpable homicide not amounting to

murder is something less heinous than murder, although it

finds a place in the list. In my opinion, the appellant can

have no right to complain if he has not been aggrieved in

any way by any unjust or arbitrary classification. As he is

accused of murder and dacoity and no offences of a similar

nature are excluded from the list, I do not think that it is

open to him to complain of any violation of equal protection

clause in the notification. There are quite a number of

offences specified in the notification and they are capable

of being grouped under various heads. Simply because cer-

tain offences which could have been mentioned along with

similar others in a particular group have been omitted

therefrom, it cannot be said that the whole list is bad.

The question of inequality on the ground of such omission

can be raised only by the person who is directed to be tried

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 28

under the special

466

procedure for a certain offence, whereas for commission of a

similar offence not mentioned in the list another person has

still the advantages of the ordinary procedure open to him.

In my opinion, therefore, the first point raised on behalf

of the appellant cannot succeed.

The other point urged by the learned counsel for the

appellant which relates to the question of delegation of

legislative authority by the Rajpramukh to the State Govern-

ment admits, I think, of a short answer. It is conceded by

the learned counsel that the facts of this case are identi-

cal with those of King Emperor v. Benoarilal Sarma (1) which

was decided by the Privy Council. In fact, the language of

section 5 of the Special Criminal Courts Ordinance (No. II

of 1942) which came up for consideration in that case is

almost the same as that of section 11 of the Saurashtra

Ordinance. It was held by the Privy Council that it was not

a ease of delegated legislation at all, but merely an exam-

ple of the not uncommon legislative arrangement by which the

local application of the provision of a statute is deter-

mined by the judgment of a local administrative body as to

its necessity. In other words, it was a case of conditional

legislation coming within the rule of Queen v. Burah (2).

The pronouncement of the Judicial Committee in Benoarilal's

case (2) has been accepted and acted upon by this court in

more than one case and it is too late now to question its

correctness. My conclusion, therefore, is that both the

preliminary points must be disallowed and the appeal should

be heard on its merits.

DAS J. --The appellant before us was tried by a Special

Court constituted under the Saurashtra Public Safety Meas-

ures (Third Amendment) Ordinance No. LXVI of 1949 for of-

fences alleged to have been committed by him under sections

302, 307 and 392 of the Indian Penal Code. On December 20,

1950, he was found guilty of the offences charged against

him and was convicted and sentenced to death under section

302,

(1) 72 I.A. 57. (2) 3 App. Cas. 889.

467

Indian Penal Code, and to seven years rigorous imprisonment

under each of the charges under sections 307 and 392, Indian

Penal Code, the sentences of imprisonment running concur-

rently- He appealed to the High Court of Saurashtra but the

High Court, by its judgment pronounced on February 28, 1951,

rejected his appeal and confirmed his conviction and the

sentences passed by the Special Court. By its order made on

March 21, 1951, however, the High Court granted him a cer-

tificate for appeal to this Court both under article 132 and

article 134 (1) (c) of the Constitution. This appeal has

accordingly been filed in this Court.

A preliminary point has been raised by learned counsel

for the appellant, namely, that the Special Court had no

jurisdiction to try this case and the whole trial and con-

viction have been illegal and void ab initio and should be

quashed in limine. It is necessary, for the disposal of the

preliminary objection, to refer to the provisions of the

Ordinance and the circumstances in which the Special Court

came to be constituted.

In the beginning of 1948 the different States in Kathia-

war were integrated into what is now the State of Saurash-

tra. About that time different dacoits indulged in lawless

activities in Kathiawar and in particular in the area now

known as the districts of Gohilwad and Madhya Saurashtra and

on the outskirts of Sorath that was formerly a district in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 28

Junagadh State. Their activities gathered such strength and

virulence that the security of the State and the maintenance

of public peace became seriously endangered. In order to

check their nefarious activities the Rajpramukh of the State

of Saurashtra on April 2, 1948, promulgated Ordinance No. IX

of 1948. The preamble of the Ordinance recited that 'it was

"expedient to provide for public safety, maintenance of

public order and preservation of peace and tranquillity in

the State of Saurashtra." that Ordinance gave power to the

State Government to make orders, amongst other things, for

detaining or restricting the movements or

468

actions of persons and impose collective fines. The Rajpra-

mukh on April 5, 1948, promulgated another Ordinance No. XII

of 1948 which extended to the State of Saurashtra the provi-

sions of the Code of Criminal Procedure (Act V of 1898)

subject to certain adaptations and modifications mentioned

in the Schedule thereto. It appears from the affidavit of

Ramnikrai Bhagwandas Vesavada, Assistant Secretary in the

Home Department, Government of Saurashtra, that the Ordi-

nance was not sufficient to cope with the activities of the

gangs of dacoits and that cases of looting, dacoity, rob-

bery, nose-cutting and murder continued as before and indeed

increased in number, frequency and vehemence and it became

impossible to deal with the offences at different places in

separate Courts of law expeditiously. In view of the seri-

ous situation prevailing in those districts the State of

Saurashtra considered it necessary to constitute Special

Courts and to provide for a special procedure of trials so

as to expedite the disposal of cases in which offences of

certain specified kinds had been committed. The Rajpramukh

of Saurashtra accordingly, on November 2, 1949, promulgat-

ed Ordinance No. LXVI of 1949 called "The Saurashtra State

Public Safety Measures (Third Amendment) Ordinance, 1949",

whereby it amended the Saurashtra State Public Safety Meas-

ures Ordinance (No. IX of 1948). By section 4 of the Ordi-

nance No. LXVI of 1949 several sections were added to Ordi-

nance No. IX of 1948. Three of the sections thus added,

which are material for our present purposes, were sections

9, 10 and 11 which run as follows :--

"9. Special Courts.--The Government of the United State

of the Saurashtra may by notification in the Official Ga-

zette constitute Special Courts of Criminal Jurisdiction for

such area as may be specified in the notification.

10. Special Judges.--The Government of the United State

of Saurashtra may appoint a Special Judge to preside over a

Special Court constituted under section 9 for any area any

person who has been

469

a Sessions Judge for a period of not less than 2 years under

the Code of Criminal Procedure, 1898, as applied to the

United State of Saurashtra.

11. Jurisdiction of Special Judges.--A Special Judge

shall try such offences or classes of offences or such cases

or classes of cases as the Government of the United State of

Saurashtra may, by general or special order in writing,

direct."

Pursuant to the provisions of the Ordinance as amended

the State of Saurashtra issued a notification, the material

part of which is as follows :-

"No. H/35-5-C--In exercise of the powers conferred by

sections 9, 10 and 11 of the Saurashtra State Public Safety

Measures Ordinance, 1948, (Ordinance No. IX of 1948), here-

inafter referred to as the said Ordinance), Government is

pleased to direct-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 28

(i) that a Special Court of a Criminal Jurisdiction,

(hereinafter referred to as the said Court) shall be consti-

tuted for the areas, mentioned in the schedule hereto an-

nexed, and that the headquarters of the said Court shall be

at Rajkot,

(ii) that Mr. P.P. Anand shall be appointed as a Spe-

cial Judge to preside over the said Court and

(iii) that the Special Judge hereby appointed shall try

the following offences, viz.....

(a) offences under sections 183, 189, 190, 212, 216 224,

302, 304. 307,323 to 335, 341 to 344, 379 to 382 384 to 389

and 392 to 402 of the Indian Penal Code 1860 (XLV of 1860),

as adapted and applied to the United State of Saurashtra,

and

(b) all offences under the said Ordinance, except an

offence punishable under sub-section (6) of section 2 of the

said Ordinance, in so far as it relates to the contravention

of an order made under clause (a) of subsection (1) of the

said section."

The appellant having been charged with offences included

in the Notification he was tried by the Special Court with

the result I have mentioned. The preliminary objection

raised on his behalf is that section

470

11 of the Ordinance is invalid in that (a) it offends

against article 14 of our Constitution, and (b) it autho-

rises illegal delegation of legislative power to the State

Government.

In support of the first ground on which the preliminary

objection is rounded reliance is placed by learned coun-

sel for the appellant on the judgment of this Court in Case

No. 297 of 1951 (The State of West Bengal v. Anwar Ali

Sarkar). That case was concerned with the validity of the

trial of the respondent therein by a Special Court consti-

tuted under the provisions of the West Bengal Special Courts

Act, 1950 (West Bengal Act X of 1950). The preamble to that

Act recited that it was "expedient to provide for the

speedier trial of certain offences". Sections 3, 4 and 5

(1) of the West Bengal Special Courts Act, 1950, reproduced

substantially, if not verbatim, the provisions of sections

9, 10 and 11 of the Saurashtra Ordinance of 1948 as subse-

quently amended. The notification issued by the State of

West Bengal under that Act was, however, different from the

notification issued by the State of Saurashtra in that the

West Bengal notification directed certain specific "cases"

to be tried by the Special Court constituted under the West

Bengal Special Courts Act. That notification had obviously

been issued under that part of section 5 (1) of the West

Bengal Special Courts Act which authorised the State Govern-

ment to direct particular "cases" to be tried by the Special

Court. A majority of this court held that at any rate

section 5 (1) of the West Bengal Special Courts Act in so

far as it authorised the State to direct "cases" to be tried

by the Special Court and the notification issued thereunder

offended against the provisions of article 14 of the Consti-

tution and as such were void under article 13. The Saurash-

tra notification, however, has been issued quite obviously

under that part of section 11 which authorises the State

Government to direct "offences' ', "classes of offences" or

"classes of cases" to be tried by the Special Court and the

question before us on the present appeal is whether that

part of section 11 under

471

which the present notification has been issued offends

against the equal protection clause of our Constitution. It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 28

is contended that the opinion expressed by the majority of

this Court in' the West Bengal case on the corresponding

part of section S (1) of the West Bengal Special Courts Act

was not necessary for the purposes of that appeal and re-

quires reconsideration.

After referring to our previous decisions in

Chiranjit Lal Choudhury v. The Union of India and Others

(1) and The State of Bombay v.F.N. Balsara (2), I summarised

the meaning, scope and effect of article 14 of our Constitu-

tion, as I understand it, in my judgment in the West

Bengal case which I need not repeat but to which I fully

adhere. 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 classifi-

cation must be rounded on an intelligible differentia which

distinguishes persons or things that are grouped together

from others left out of the group, and (ii)that that differ-

entia must have a rational relation to the object sought to

be achieved by the Act. What is necessary is that there

must be a nexus between the basis of classification and the

object of the Act.

It will be noticed that section 11 of the Saurashtra

Ordinance, like section 5 (1) of the West Bengal Special

Courts Act, refers to four distinct categories, namely,

"offences", "classes of offences", "cases" and "classes of

cases" and empowers the State Government to direct any one

or more of these categories to be tried by the Special Court

constituted under the Act. The expressions "offences",

"classes of offences" and "classes of cases" clearly indi-

cate and obviously imply a process of classification of

offences or cases.

(1) [1950] S.C,R. 869.

(2) A.I.R. (1951),S,C, 318 at p. 326 ; [1951] S.C.R. 682.

61

472

Prima facie those words do not contemplate any particular

offender or any particular accused in any particular case.

The emphasis is on "offences", "classes of offences" or

"classes of cases." The classification of "offences" by

itself is not calculated to touch any individual as such,

although it may, after the classification is made, affect

all individuals who may commit the particular offence. In

short, the classification implied in this part of the sub-

section has no reference to, and is not directed towards,

the singling out of any particular person as an object of

hostile State action but is concerned only with the grouping

of "offences", "classes of offences" and "classes of cases"

for the purposes of the particular legislation as recited in

its preamble.

An argument was raised, as in the West Bengal ease, that

even this part of the section gave an uncontrolled and

unguided power of classification which might well be exer-

cised by the State Government capriciously or "with an evil

eye and an unequal hand" so as to deliberately bring about

invidious discrimination between man and man although

both of them were situated in exactly the same or similar

circumstances. I do not accept this argument as sound, for,

the reasons I adopted in my judgment in the West Bengal case

in repelling this argument apply with equal, if not with

greater, force to the argument directed against the validity

of the Saurashtra Ordinance. It is obvious that this part

of section 11 of the Ordinance which, like the corresponding

part of section 5 (1) of the West Bengal Special Courts Act,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 28

confers a power on the State Government to make a classifi-

cation of "offences", "classes of offences" or "classes of

cases", makes it the duty of the State government to make a

proper classification, that is to say, a classification

which must fulfil both conditions, namely, that it must be

based on some intelligible differentia distinguishing the

offences grouped together from other offences and

that that differentia must have a reasonable relation to the

object of the Act as recited in the preamble. A

473

classification on a basis which does not distinguish one

offence from another offence or which has no relation to the

object of the Act will be wholly arbitrary and may well be

hit by the principles laid down by the Supreme Court of the

United States in Jack Skinner v. Oklahoma(1). On the other

hand, as I observed in the West Bengal case, it is easy to

visualise a situation when certain offences, by reason of

the frequency of their perpetration or other attending

circumstances, may legitimately call for a special treatment

in order to check the commission of such offences. Are we

not familiar with gruesome crimes of murder, arson, loot and

rape committed on a large scale during communal riots in

particular localities and are they not really different from

a case of a stray murder, arson, loot or rape in another

district which may not be affected by any communal upheaval

? Does not the existence of the gangs of dacoits and the

concomitant crimes committed on a large scale as mentioned

in the affidavit filed on behalf of the State call for

prompt and speedier trial for the maintenance of public

order and the preservation of peace and tranquillity in the

State and indeed of the very safety of the community ? Do

not those special circumstances add a peculiar quality to

the offences or classes of offences specified in the notifi-

cation so as to distinguish them from stray cases of similar

crimes and is it not reasonable and even necessary to the

State with power to classify them into a separate group and

deal with them promptly ? I have no doubt to' my mind that

the surrounding circumstances and the special features

mentioned in the affidavit referred to above furnish a very

cogent and reasonable basis of classification, for they do

clearly distinguish these offences from similar or even same

species of offences committed elsewhere and under ordinary

circumstanceS. This differentia quite clearly has a reason-

able relation to the object sought to be achieved by the

Act, namely, the maintenance of public order, the preserva-

tion of public safety, the peace and tranquillity of the

State. Such a classification

(1) 216 U.S. 535; L. Ed. 1655.

474

will not be repugnant to the equal protection clause of

our Constitution, for there will be no discrimination, for

whoever may commit the specified offence in the specified

area in the specified circumstances will be treated alike

and sent up before a Special. Court for trial under the

special procedure. Persons thus sent up for trial by a

Special Court cording to the special procedure cannot point

their fingers to the other persons who may be charged before

an ordinary Court with similar offences alleged to have been

committed by them in a different place and in different

circumstances and complain of unequal treatment, for those

other persons are of a different category and are not their

equals. In my judgment, this part of the section, properly

construed and understood, does not confer an uncontrolled

and unguided power on the State Government. On the con-

trary, this power is controlled by the necessity for making

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 28

a proper classification which is to be guided by the pream-

ble in the sense that the classification must have a ration-

al relation to the object of the Act as recited in the

preamble. It is, therefore, not an arbitrary power. The

Legislature has left it to the State Government to classify

offences or classes of offences or classes of cases for the

purpose of the Ordinance, for the State Government is in a

better position to judge the needs and exigencies of the

State and the Court will not lightly interfere with the

decision of the State Government. If at any time, however,

the State Government classifies offences arbitrarily and

not on any reasonable basis having a relation to the object

of the Act, its action will be either an abuse of its power

if it is purposeful, or in excess of its powers even if it

is done in good faith, and in either case the resulting

discrimination will encounter the challenge of the Constitu-

tion and the Court will strike down, not the law which is

good, but the abuse or misuse or the unconstitutional admin-

istration of the law creating or resulting in unconstitu-

tional discrimination. In this case, however, the facts

stated in the affidavit filed on behalf of the State make it

abundantly

475

clear that the situation in certain parts of the State was

sufficient to add a particularly sinister quality to certain

specified offences committed within those parts and the

State Government legitimately grouped them together in the

notification. The criticism that the State Government in-

cluded certain offences but excluded certain cognate of-

fences has been dealt with by my learned brother Mukherjea

and I have nothing more to add thereto.

In my opinion, lot reasons given in my judgment in the

West Bengal case and referred to above, section 11 of the

Saurashtra Ordinance in so far as it authorises the State

Government to direct offences or classes of offences or

classes of cases to be tried by the Special Court does not

offend against the equal protection clause of our Constitu-

tion and the notification which has been issued under that

part of the section cannot be held to be invalid or ultra

vires.

On the question of delegation of legislative power the

matter appears to be concluded by the decision of the Privy

Council in Benoarilal's case(1) and the section may well be

regarded as an instance of conditional legislation. Fur-

ther, I would be prepared to say, for reasons stated in my

judgment in the President's Reference(2) that there has been

no illegal delegation of legislative power.

For reasons stated above, I agree that the preliminary

point should be rejected and the appeal should be heard on

its merits.

CHANDRASEKHARA AIYAR J.--Mr. Sen tried his best to

distinguish this case from our decision on the West Bengal

Special Courts Act, 1950, The State of West Bengal v. Anwari

Ali Sarkar and Gajan Mali (3). But in my view he has not

succeeded in his attempt.

Sections 9 and 11 of the Ordinance in question do not

lay down any classification in themselves. The preamble to

the earlier Ordinance of 1948, which is still intact as the

later one is only an amending

(1) L.R. 72 I.A. 57. (3) Cases Nos. 297 & 298 of 1951.

Since

(2) [1951] S.C.R. 747. reported as [1952] S.C.R. 284.

476

measure, merely refers to the need to provide for public

safety, maintenance of public order, and the preservation of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 28

peace and tranquillity in the State of Saurashtra. This by

itself indicates no classification, as the object is a

general one, which has to be kept in view by every enlight-

ened government or system of administration. Every law

dealing with the commission and the punishment of offences

is based on this need. The notification under which the

Special Court was established no doubt deals with "offences"

as distinguished from "cases" or "groups of cases," but here

also, there is no rational classification. Offences present-

ing the same characteristic features, and cognate in this

sense, have been separately dealt with; some of them are to

go before the Special Court, while others are left to be

tried by the ordinary courts. The circumstance that the

deviations from normal procedure prescribed in the Ordinance

are not so many or vital, as in the Bengal case, does not in

nay humble opinion, affect the result, as the defect of the

absence of a reasonable or rational classification is still

there. The negation of committal proceedings is a matter of

much moment to the accused, as it deprives him of the un-

doubted advantage of knowing the evidence for the prosecu-

tion and discrediting it by cross-examination, leading

possibly to his discharge even at that early stage.

The argument for the respondent that there has been no

discrimination as against the appellant visa vis other

persons charged with the same offences is unacceptable.

Cognate offences have been left over for trial by the ordi-

nary courts. It is no answer to the charge by A of discrim-

inatory legislation to say that B & C have also been placed

in the same category as himself, when he finds that D, E & F

also liable for the same or kindred offences have been left

untouched and are to be tried by ordinary courts under the

normal procedure. Much importance cannot be attached to the

affidavit of the Assistant Secretary to the Government. It

may be that all the facts stated by him as regards the

frequency and locale of the particular

477

offences are true. But no such grounds for the classifica-

tion are indicated, much less stated, either in the impugned

Ordinance or notification. This is certainly not a legal

requirement; but a wise prudence suggests the need for such

incorporation, as otherwise the ascertainment of the reasons

for the classification from extraneous sources may involve

the consideration of what may be regarded as after-thoughts

by way of explanation or justification.

In my. view, the West Bengal Special Courts Act deci-

sion governs this case also, and section 11 is bad.

It is unnecessary to deal with the other point raised by

the learned counsel for the appellants as regards the dele-

gation of legislative powers involved in the pro tanto

repeal of some of the provisions of the Criminal Procedure

Code, viz., sections 5 and 28 and the Schedule, especially

as it seems concluded against him by the decision in King

Emperor v. Benoari Lal Sarma and Others(1).

The convictions of the appellant and the sentences

imposed on him are set aside, and there will be a retrial

under the ordinary procedure.

Boss J.--I agree with my brothers Mahajan and Chandra-

sekhara Aiyar that the Saurashtra State Public Safety Meas-

ures (Third Amendment) Ordinance, offends article 14. As

I explained in my judgment in The State of West Bengal v.

Artwar Ali Sarkar(2), I prefer not to base my decision on

the classification test. For the reasons given there I am

of opinion that the differentiation here travels beyond.

bounds which are legitimate. It is true the points of

differentiation are not as numerous here as in the other

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 28

case but the ones which remain are, in my judgment, of a

substantial character and cut deep enough to attract the

equality clauses in article 14. I would hold the Ordinance

invalid.

Preliminary objection overruled.

Agent for the respondent: P.A. Mehta.

(1) (1945) 72 I.A. 57. (2) [1952] S.C.R. 284.

62

478