Divatia, J.:—

(The Governor-General could have extended the Ordinance in its initial stage to the Provinces.)

That could have been done but when he delegates his function to another body, as in the present ordinance, he is not complying with the terms of s. 72. Validity of the Ordinance has to be judged by reference to s. 72. Under that s. 72 the judgment being that of the Governor-General he has to decide the state of emergency and he cannot say to Provincial Governments that if in their opinion the emergency arises the Ordinance may be applied. In fact here the Ordinance was passed on January 2, 1942. At that time there was no necessity for any drastic and immediate action. It was on October 26, 1942, that the ordinance was applied to the Province as in the opinion of Provincial Government emergency then arose.

(C.J: One cannot wait till an emergency has arisen. The Governor-General may forestall the emergency and has got to arm the local Governments with special powers.)

We submit the Governor-General cannot say that there is a possibility of emergency. Under the terms of s. 72, the Governor-General cannot legislate in cases of possible or threatened emergency. In order to provide for Proclamation of Emergency in the case of threatened emergency either by war or by internal disturbance, an amendment was effected by adding sub-cl. 5 to s. 102 of the Government of India Act by II and III, Geo. VI, Ch. 66, s. 1(3).

We submit that the argument regarding the validity of the Ordinance realizes itself into three parts: (1) The Ordinance is not in compliance with the terms of s. 72, inasmuch as by s. 1(3) of the Ordinance nothing was to be done till the Provincial Governments concerned were of opinion that an emergency had arisen and issued a notification to that effect; (2) The Viceroy being the sole judge to decide whether or not an actual emergency exists, it was not for him to abdicate his functions and this delegation of his discretion to the Provincial Governments rendered the Ordinance invalid; (3) As regards the constitution and organization of courts in the Provinces, that is a matter only under the jurisdiction of the Provincial Government as will be found by reference to item No. 1 in the Provincial Legislative List II. Jurisdiction and powers of the court are matters for item No. II of the list. Jurisdiction and powers of courts are different from their constitution and organization, e.g, a court may have jurisdiction in respect of certain matters but that is different from its constitution and organization. If a new tribunal is to be constituted then it is a question of constitution and organization. If the scheme of all three lists is analysed it will be found that jurisdiction is treated separately from constitution. Item No. 15 in the Concurrent Legislative List III and item No. 53 in the Federal Legislative List I speak only of jurisdiction and powers of courts. Therefore in dealing with jurisdiction and powers of the courts in Provinces, the Governor-General may assume powers but when it is purely a question of constitution and organisation of courts within the Provinces, it is a matter entirely within the jurisdiction of the Provincial Government. See s. 100, sub-cl. (3).

We may point out that the Allahabad, Patna and Nagpur High Courts have examined this contention and have found against it on various grounds. They held in favour of the validity of the Ordinance. In Salig Ram v. Emperor, it was held that the Ordinance was intra vires of the Governor-General but the Court there did not specifically deal with the restricted power of the Governor-General under s. 72, Schedule IX of the Government of India Act.

Secondly, we submit that even if the Ordinance was valid, it was not applicable to this case because, in the absence of express words to that effect, it could not be given retrospective operation. All Legislation in the absence of specific provision is prospective. See, Maxwell on Interpretation of Statutes, 8th Edition, pages 189, 190. That being the principle, it must follow that in the absence of express terms, the Ordinance will not apply to offences committed before the Ordinance was applied to the Province.

There is a difference between the matters of procedure and vested rights. All the rights which an accused person obtains are not matters of procedure. There are certain vested rights e.g right to obtain bail, or trial by jury or right to apply under s. 491, of the Criminal Procedure Code for directions of the nature of a habeas corpus, which is a right affecting the liberty of the subject. He cannot be deprived of these rights unless it is so stated. The leaning of the Court should be against giving retrospective effect.

There are three positions, first is the extreme view that if the offence is committed before the Ordinance such an offence cannot be tried under the Ordinance; second view is based on the commencement of investigation by the Police and third based on commencement of judicial proceedings on taking cognizance. The last position is accepted by all the three High Courts (Allahabad, Patna and Nagpur) in cases: Salig Ram v. Emperor, Sitao Jholia v. Emperor, and Banwari Gope v. Emperor.

(C.J: What authority is there to say that the principle of interpretation of Parliamentary statutes applies to Ordinances.)

We submit that the principle is the same in the case of Parliamentary legislation and emergency legislation. In the case of Liversidge v. Sir John Anderson, the House of Lords applied the same principle in a case arising under the Defence (General) Regulations, 1939 which was an emergency legislation. Counsel also cited In re School Board Election for Parish of Pulborough: Bourke v. Nutt which applies the principle of not giving retrospective effective to a Statute.

(C.J: Is it applicable to criminal statutes?)

Criminal statutes are to be construed strictly and no distinction exists between civil and criminal matters in this respect. For example the right to be tried by a jury is a substantive right and a prisoner cannot be deprived of it. In the case of Hari v. The King Emperor, it is held by the Privy Council that an accused could not be deprived of a right of trial by jury by transferring the case to a court which could proceed without jury. See also: The Crown v. Fitzmaurice. We submit that the language of s. 5 gives no indication to include pending cases. If the expression is neutral and if both constructions are possible, the law is that no retrospective effect should be given.

(C.J: You have to see what is the object in promulgating the Ordinance and what were the causes that led for constituting special Courts?)

The whole object of the Ordinance was to give speedy remedy in cases arising after emergency. There was no intention to take away the pending cases. No such intention could be gathered from the sections in the Ordinance.

(Divdtia, J.: The magisterial inquiry will be different in a case exclusively triable by a Court of Session. In such a case the trial commences when the plea of the accused is recorded.)

Even if the magistrate is dealing with a case exclusively triable by a Court of Session, he is performing his function as a Court. For example, he may discharge an accused person or commit him to the Court of Sessions. The offence becomes a case as soon as the Court takes cognizance.

Engineer, Advocate General. In construing the Ordinance, we have to bear in mind the following principles:—

(1) Whether the Ordinance a fleets procedural rights or substantive rights. By changing procedural rights incidentally substantive rights may be affected.

(2) In construing an instrument, whether an act or an Ordinance, it may be considered whether it is a war measure or a peace measure. The inference that the instrument is not intended to affect vested rights is Weakened considerably in war-time.

(3) If the enactment is procedural, it applies to pending cases unless excluded.

(4) It is a fallacy to say that by making an act applicable to past transactions or pending proceedings, Courts thereby give it a retrospective effect.

(5) Such interpretation should be given as would be in accordance with the plain intention of those responsible for the measure.

(6) The Court has to look to the words of the measure itself and see what it means.

In construing the Ordinance, we find that sufficient importance has not been given by the applicants' counsel to the words and their meaning and the clear implications of the Ordinance have not been gone into. The Ordinance begins by stating “whereas an emergency has arisen which makes it necessary to provide for setting up of special Criminal Courts”, and it extends to the whole of British India, and came into force throughout British India and its applicability in particular provinces was left to Provincial Governments. A similar ordinance was considered in Balkrishna Hari Phansalkar v. Emperor.

(Divatia, J.: If the Governor-General is to determine the emergency how can he delegate his powers to Governors!)

The two emergencies are different. The Governor-General's emergency resulted in making the law, while the second emergency is one arising in the Provinces. The object of the Ordinance is to give guidance to Provincial Governments to apply the Ordinance on an emergency arising in the provinces. It is not a delegation of power.

(C.J The Ordinance of the Governor-General armed the Provincial Governments to issue notifications. That power does not invalidate the Governor-General's Ordinance on the ground that no emergency existed in the province when the Ordinance was passed.)

The emergency contemplated is that of war which was a sufficient emergency for the Governor-General to arm the Provincial Governments with these powers.

Dealing with the applicability of the Ordinance, we submit that the Ordinance was an emergency legislation intended as a war-time measure for public safety and in such a case personal liberty could be encroached upon. Section 26 of the Ordinance even restricts the powers of ordinary Courts to make any order for habeas corpus, under s. 491 of the Criminal Procedure Code and provides for exclusion of interference of other Courts. In Liversidge v. Sir John Anderson, the House of Lords applied the same principle. They stated “In a time of emergency when the life of the whole nation is at stake it may well be that a regulation for the defence of the realm may quite properly have a meaning which because of the drastic invasion of the liberty of the subject the Courts will be slow to atribute to a peace-time measure. The purpose of the regulation is to ensure public safety, and it is right to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm”.

Regarding retrospective effect of a statute we may draw attention to Halsbury's Laws of England, Vol. 31, pages 513, 515. It is observed as follows: “A statute is prima facie prospective, and does not interfere with existing rights, unless it contains express words, or there is the plainest implication to that effect. The fact of a statute being remedial, or designed to protect public interest, is matter to which great weight is to be attached, and a different principle prevails where the statute is one that introduces a new remedy.” We rely on the latter observations.

In the case of The Queen v. Vine, the question was whether a person who had been convicted of felony before the Act (Wine and Beer Amendment Act, 1870, 33 and 34 Vict. C. 29) was passed became disqualified on the passing of the Act. It was held that he did, because the object of the enactment was not to punish offenders, but to protect the public against public houses in which the spirits were retailed being kept by persons of doubtful character. It was on this ground held that the licenses held by a person convicted before the Act, became void on the passing of the Act.

Counsel referred to Welby v. Parkar and Rex v. Chandra Dharma these authorities show that alterations in the form of procedure were always retrospective unless it was clearly provided that they were not so. Further if on the statute which was being construed the intention was clear that it applied to all proceedings, then the fact that certain vested rights were taken away should not interfere with that construction. Counsel further relied on Quilter v. Mapleson, Wright v. Sole, Kimbray v. Draper, and Craies on Statute Law, 337. We submit that in a measure of this kind the presumption that vested rights were not intended to be affected does not apply.

We submit that the view taken by the Patna High Court that judicial proceedings begin when cognizance is taken by the Magistrate is wrong. There is nothing to prevent the Government under s. 5 from directing the trial of a particular case of which cognizance has already been taken by an ordinary tribunal, by a Special Judge. When a Magistrate takes cognizance of a case no vested rights are created in the accused. After all what are the rights involved in this case. It is a right to be tried by a jury. It is not an absolute right. We, therefore, submit that considering the time when the measure was passed and the circumstances under which the ordinance was promulgated, it was within the power of Government to direct that certain class of cases pending before ordinary tribunals be tried by Special Judges or Special Magistrates. In all cases to which the Ordinance applies, the rights under the Criminal Procedure Code arising from a trial before an ordinary tribunal are modified by this Ordinance.

Setdlvad, in reply. Dealing with the second point, we submit that the whole thing rests mainly on the construction of ss. 5 and 10 because if the words of those sections either expressly or by necessary implication mean that even pending actions or cases are to be included, no other question arises; then all that the Court has to see is whether there is express or necessary intendment. The presumption only arises in the absence of express provision or necessary intendment. It was submitted that the use of the words “cases or class of cases” showed an intention to apply the Ordinance retrospectively to pending cases. No such inference can follow from the words at all, and they do not indicate that the intention was to apply to matters of which cognizance was taken. If the contention that “cases” include pending proceedings is correct then there is no warrant for limiting it to cases in which trial has not commenced.

Referring to cases cited by the Advocate General, counsel submitted that those cases mostly dealt with procedural rights while here we were concerned with substantive rights. The object of the Ordinance was to penalise people and to deprive them of substantive rights and the principle is that if a statute is penal and if there are no words to show that is retrospective in operation, the Court should presume that it is not retrospective.

(Divatia, J.: Section 5 empowers the Provincial Government to make any order they choose. It applies to all cases even though the rights may be there).

The whole question is whether s. 5 was so framed as to enable Government to make orders which would affect vested rights. In this case undoubtedly the right to trial by a jury was vested notwithstanding the existence of the Ordinance. Once that position is accepted, there is no escape from the other position that you do interfere with vested rights.

As regards the validity of the Ordinance, the case of Balkrishna Hari Phansalkar v. Emperor was referred to. That case has no application to the present facts. The whole of the argument on the invalidity of the Ordinance has been on the basis that the terms of the Ordinance itself showed that there was no emergency in existence, emergency in the sense laid down by the Privy Council in Bhagat Singh's case. That point is not affected by the decision in Phansalkar's case.

Beaumont, C.J:—The first application (No. 431 of 1942) raises questions, first, as to the validity of the Special Criminal Courts Ordinance (II of 1942), and, secondly, as to the applicability of the Ordinance if valid to the case of the petitioners. Cases raising similar points have come before the High Courts of Allahabad, Patna and Nagpur, and we have considered the judgments delivered in those cases, either as reported in the All India Reporter or in manuscript, as the cases have not yet found their way into the official reports.

The facts in this case are that the petitioners were arrested on September 6, 1942, and on October 5 a charge-sheet was placed against their names; and, some of the charges being exclusively triable by a Court of Session, on October 31, the Magistrate committed the accused for trial in the Court of the Sessions Judge of Thana, where cases are triable with a jury. On December 7, the Government of Bombay made an order, under s. 5 of the Special Criminal Courts Ordinance, directing Mr. Honawar, who was the Assistant Judge of Thana and a Special Judge appointed under the Ordinance, to try the petitioners' case, the order referring to the petitioners' case by its number and by the names of the accused. The Ordinance had been applied to the Province of Bombay on October 26, that is five days before the committal order.

The Special Criminal Courts Ordinance (II of 1942) was promulgated by the Governor General under s. 72 in the Ninth Schedule of the Government of India Act, 1935, which Schedule incorporates various provisions of the Government of India Act, 1915, which were to apply until Federation was introduced, and s. 72 enables the Governor General in cases of emergency to make and promulgate Ordinances for the peace and good government of British India or any part thereof. Under the section the Ordinance was only to remain in force for six months, but that limitation has been removed for the present under an Act of the Imperial Parliament.

The Ordinance recites that an emergency has arisen which makes it necessary to provide for the setting up of Special Criminal Courts. Sub-section (3) of s. 1 provides:

“It shall come into force in any Province only if the Provincial Government, being satisfied of the existence of an emergency arising from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the official Gazette, declares it to be in force in the Province, and shall cease to be in force when such notification is rescinded.”

Section 3 enables Courts of criminal jurisdiction to be constituted, and one class of such Courts is to consist of Special Judges. That is the only one with which we are concerned in this case. Then s. 4 directs that—

“The Provincial Government may appoint to be a Special Judge for such area as it may think fit any person who has acted for a period of not less than two years in the exercise of the powers of a Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure.”

Section 5 deals with the jurisdiction of Special Judges and is the really relevant section in this case. It provides:

“A Special Judge shall try such offences or classes of offences, or such cases or classes of cases as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct.”

Section 6 deals with the procedure of Special Judges. Putting it broadly, the procedure under the Code is to apply with certain exceptions, the idea being to make trials more summary and rapid than under the normal procedure. Section 8 enables proceedings before a Special Judge to be reviewed by one of the High Court Judges nominated by the Provincial Government in cases in which a sentence of death, or transportation for life, or imprisonment for a term of seven years or more, is imposed, and other cases may be brought up on a certificate of the Special Judge. I need not refer to the provisions as to the Special Magistrates and Summary Courts, because they do not arise in this case. Section 26 excludes appeals or revision applications against any sentence of a Special Judge, or any transfer application, or an application under s. 491 of the Criminal Procedure Code. Under the Ordinance the result will be that the trial is by a Special Judge, who is duly qualified as a Judge, but who proceeds by a more summary process than in an ordinary trial. The right of appeal is taken away, though there is a limited right of review, and there will be no trial by jury.

On August 19, 1942, the Ordinance was amended by an Ordinance (XLII of 1942) reciting that an emergency had arisen which made it necessary to amend the Special Criminal Courts Ordinance (II of 1942). The substantial amendment is in sub-s. (3) of s. 1 of the original Ordinance in which, after the words “arising from” the words “any disorder within the Province or from” are inserted, the effect being that after that date the Provincial Government can introduce the Ordinance on being satisfied of the existence of an emergency arising from any disorder within the Province, and not merely from the danger of an attack by outside enemies.

The validity of the Ordinance has been challenged on three grounds. The first ground is that, although it is admitted that the Governor General is the sole authority for determining whether an emergency exists or not, and although in this case the Ordinance recites that an emergency has arisen, nevertheless the Ordinance shows on its face that in fact an emergency had not arisen. The argument is that, after the promulgation of the Ordinance, no action is to be taken unless and until the Provincial Government brings the Ordinance into operation under s. 1, sub-s. (3). In my opinion, there is no force whatever in that contention. The Governor General has said that an emergency exists; and to say that there cannot be an emergency, unless it is necessary instantly to bring the terms of the Ordinance into operation, is to suggest that there can be no emergency with which the Governor General can deal before it arises. It suggests that the Governor General can never exercise any foresight in the protection of the State. It is perfectly possible to suppose that in January, 1942, owing to the approach of the Japanese army, there was an emergency which made it necessary to look to possible future events, and to arm the Provincial Governments with powers which they could bring into operation as and when they thought fit.

The second ground on which the Ordinance is attacked is that the Governor General has delegated his authority to declare that an emergency exists to Provincial Governments. I must say that I think the use of the expression “existence of an emergency” in sub-s. (3) of s. 1 is rather unfortunate, because it leads to the suggestion that there were really two emergencies; first, an emergency which had arisen and made it necessary to arm Provincial Governments with powers, and, secondly, an emergency which might arise and require that those powers should be used, and that as to the second emergency it is the Provincial Government, and not the Governor General, who is to be the arbiter. I think, however, that is not the true construction. In my view the emergency, which justified the promulgation of the Ordinance, justified the Governor General in leaving it to the Provincial Governments to bring the Ordinance into operation as part of the machinery for carrying out of the Ordinance. This point is really concluded, so far as this High Court is concerned, by a decision of a full bench in Balkrishna Hari Phansalkar v. Emperors. No doubt, in that case words similar to those in sub-s. (3) of s. 1 of the present Ordinance did not call for consideration. The position in that case was that the Governor General had promulgated an Ordinance under s. 72 of the Government of India Act, 1915, and as to a part of the Ordinance he had left it to the Local Governments to determine when the Ordinance would be brought into operation. But that case is really a stronger one than the present case, because the discretion left to the Provincial Government was general, whereas in the present case the grounds on which the Provincial Government can bring the Ordinance into operation are limited by the terms of the Ordinance. In my opinion the second ground also fails.

The third ground is that the subject-matter dealt with in this Ordinance falls within item 2 of List II of the Seventh Scheldule of the Government of India Act, 1935, that is to cay, the Provincial List, which includes jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in the List, and it is said, therefore, that the Governor-General, exercising the functions of the Central Government, could not deal with the matter. Other High Courts have answered that point by saying that the subject-matter also falls within items 1 and 2 of the Concurrent List, but a more conclusive answer to the point seems to be s. 102 of the Government of India Act, which provides:

“Notwithstanding, anything in the preceding sections of this chapter, the Federal Legislature shall, if the Governor-General has in his discretion declared by proclamation that a grave emergency exists whereby the security of India is threatened, whether by War or internal disturbance, have power to make laws for a province or any part thereof with respect to any of the matters enumerated in the Provincial Legislative List.”

A Proclamation, such as is referred to in that section, was made by the Governor General immediately on the outbreak of the present War, and that disposes of the third objection to the Ordinance. Section 316 of the Government of India Act, 1935, substitutes the Indian Legislature for the Federal Legislature. The other High Courts have held that the Ordinance is valid and I agree with their decision on that point.

The next question is as to the applicability of the Ordinance to the case of the petitioners, their position being, as I have pointed out, that their case had been committed to trial by the Sessions Court at Thana, though the trial had not commenced when the case was placed before the Special Judge. The argument is that there is a presumption that statutes are not intended to have retrospective effect, and accordingly a statute will be so construed as not to take away vested rights, unless a contrary construction is imposed by express words or necessary intent. It is admitted that principle does not apply to statutes dealing merely with the procedure of Courts, but it is contended that the Ordinance in question interferes with substantive rights by depriving accused persons of their right of appeal, and in the present case of a right to trial by jury, as well as rights to apply for bail and for an order under s. 491 of the Criminal Procedure Code. It is said that in respect of a right of appeal, at any rate, the authority of the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irwing shows that such a right is a substantive right, and not a mere matter of procedure. It is then said that the rule that a right of appeal is a substantive right not to be taken away retrospectively has been applied to criminal trials in the case of The Crown v. Fitzmaurice. Then the final stage in the argument is that on the commission by the petitioners of their alleged offences, or possibly when the Magistrate took cognizance of such offences, the accused acquired a vested right to be tried under the normal procedure, and that the Ordinance must be so construed as not to take away that vested right, since there are no words in the Ordinance providing that it shall apply retrospectively. I will assume for the purposes of my judgment that the Special Criminal Courts Ordinance deals with something more than procedure, and that the decision of the Privy Council that a right of appeal is a substantive right in a civil suit, applies to criminal trials, though I do not wish to be considered as expressing an opinion on either of those two points.

Now, the other High Courts have discussed this argument at very considerable length. The Patna High Court has held that the accused acquired a vested right to be tried under the normal procedure when the Magistrate took cognizance of the case. The other High Courts have held that accused persons did not acquire such a vested right at the moment when they committed an offence, and that seems to me to be obvious. A person cannot acquire rights by committing an offence. But the other High Courts have intimated that they would agree with the decision of the Patna High Court, and hold that vested rights were acquired by the accused to be tried under the normal procedure as soon as the Magistrate took cognizance of the offence. With great respect to the learned Judges, I feel constrained to say that their judgments seem to me to be somewhat lacking in a sense of reality. All the learned Judges seem to assume that a rule of construction adapted in the first instance to statutes passed by the British Parliament applies to an Ordinance promulgated to deal with an emergency under s. 72 in the Ninth Schedule of the Government of India Act, 1935. Further, none of the learned judges seem to me to notice that this Ordinance was passed for the preservation of the public safety, and that it must be construed in the light of that paramount object. In my opinion, there is no justification for assuming that a rale of construction applicable to Acts of Parliament passed in normal times applies to an emergency Ordinance passed in time of war. The language of a Bill can be discussed and altered in the Legislative Assembly, but the language of an Ordinance cannot be discussed. In Liversidge v. Sir John Anderson Viscount Maugham in his speech says this (p. 218):

“The applicant's counsel truly say that the liberty of the subject is involved. They refer in emphatic terms to Magna Carta and the Bill of Rights, and they contend that legislation dealing with the liberty of the subject must be construed, if possible, in favour of the subject and against the Crown. Adopting the language of Lord Finlay, L.C, in this House in the case of Rex v. Halliday, I hold that the suggested rule has ‘no relevance in dealing with an executive measure by way of preventing a public danger’ when the safety of the state is involved.”

The House of Lords in that case were dealing with a Regulation enabling the Home Secretary to arrest a man and detain him, without any trial, without any right of appeal, and without any limitation to the period of detention. As far as I can see, the Regulation in that case was not expressly made retrospective, but nobody had the temerity to challenge it on that ground. If emergency legislation is not to be construed with a presumption in favour of preserving the liberty of the subject, I fail to see why it should be construed with a presumption in favour of preserving vested rights. In my opinion the normal presumption that a statute is not intended to interfere with vested rights has no application to the construction of this Ordinance. I may also observe that this rule as to the construction of statutes does not apply even to statutes passed for the protection of the public. In Halsbury's Laws of England, 2nd edn., Vol. XXXI, at p. 513, paragraph 670, the rule is stated in these terms:—

“A statute is prima facie prospective, and does not interfere with existing rights, unless it contains express words, or there is the plainest implication to that effect. The fact of a statute being remedial, or designed to protect the public interest, is matter to which great Weight is to be attached, and a different principle prevails where the statute is one that introduces a new remedy.”

The case, which is cited for the proposition that public safety is of paramount importance, is The Queen v. Vine. In that case a statute provided that:—

“Every person convicted of felony shall for ever be disqualified from selling Spirits by retail, and no licences to sell spirits by retail shall be granted to any person who shall have been so convicted; and if any person shall, after having been so convicted as aforesaid, take out or have a licence to sell spirit by retail, the same shall be void to all intents and purposes; and every person who, after having been so convicted as aforesaid, shall sell any spirits by retail in any matter whatever shall incur the penalty for doing so without a licence.”

The accused in that case had been convicted of felony before the passing of the statute, but nevertheless it was held that the statute applied to him, that is to say, that it had retrospective effect. Cockburn, C.J based his opinion on the view that the object of the enactment is not to punish offenders, but to protect the public against public-houses in which spirits are retailed being kept by persons of doubtful character, and the majority of the Judges held that, as the object of the statute was to protect the public, it must be given retrospective effect.

I would further hold that even if the presumption in question is to apply to this Ordinance, it is clear from the circumstances in which the Ordinance was passed that such Ordinance was intended to apply retrospectively.

In January, 1942, when the Ordinance was first promulgated, the Japanese armies were approaching the borders of India, and it is clear from the terms of sub-s. (3) of s. 1 that the emergency which the Governor General had in mind was in connection with danger from a hostile power. Now, if a hostile power had invaded any Province of India, it might have been quite impracticable to conduct criminal trials by the normal process. The ordinary number of judges might not be available, and it might, and probably would, be quite impracticable to secure juries and assessors to take part, in criminal trials; and it is impossible to suppose that, if it became necessary to abrogate the normal criminal procedure for any such reasons, it was intended to preserve such procedure in pending cases. Again, it might be necessary in the case of a hostile invasion to deal with a larger number of persons accused of, what is generally called, “fifth columnist activity”, and it seems to me impossible to suppose that, if it was thought necessary in the interest of public safety that such persons should be tried expeditiously by Special Courts, the Governor General intended to exclude from the operation of the Ordinance persons whose offences had been committed before the date when the Ordinance was promulgated, or whose offences had been inquired into before that date. It is unlikely that any sympathy would be felt for the vested rights of such persons.

In August, 1942, when the Ordinance was amended by a further Ordinance and applied to internal disorders, it is notorious that the action of certain political leaders in India, and the counteraction taken by Government, had made it practically certain that serious disorders would take place, and it must have been apparent to the Governor General that Provincial Governments would very probably not introduce the Ordinance until disorders had started. That in fact is what happened in this Province and in the other Provinces in which these matters have been discussed. It seems to me almost fantastic to suggest that the Governor General intended that, if the misconduct of certain persons rendered it necessary to introduce special criminal Courts, those persons themselves should not be tried by such special criminal Courts, because they had committed an offence before the Ordinance was made applicable. In construing the Ordinance we have, according to the ordinary canons of construction, to ascertain what was the intention of the authority promulgating the Ordinance. We have to ascertain that intention from the language used, giving to such language its natural meaning, we must have regard to the context in which the particular words are found, and we must also have regard to the circumstances in which the Ordinance was passed. In my judgment, it is a profound mistake for Courts of Justice, in construing emergency legislation introduced for the protection of public safety, to refuse to give effect to the plain and natural meaning of the words used on some supposed reluctance of the enacting authority to interfere with individual liberties and vested rights. In point of fact it is of the essence of most emergency legislation in war time that it does interfere, often very drastically, with individual rights and liberties, the justification being that the rights of individuals must yield to considerations of public safety. I cannot imagine a presumption better calculated to defeat the intention of the authors of emergency war time legislation than a presumption that such legislation was not intended to interfere with vested rights and the liberty of the individual.

I propose, therefore, to construe s. 5 of the Ordinance free from the supposition that it was not intended to interfere with possible vested rights. Now, the words are perfectly plain. The section says:

“A Special Judge shall try such offences or classes of offences, or such cases or classes of cases as the Provincial Government,…. may, by general or special order in writing, direct.”

Offences, no doubt, mean alleged offences, or offences charged, and the direction of the Government may be by reference to offences, that is to any, offences of murder, or arson, or as the case may be, or by reference to particular cases as happened with the petitioners' case. Their case was transferred by reference to its number and the names of the accused. But why is it not a case? To my mind, any case or offence which is awaiting trial can be placed for trial before a Special Judge. If the trial had commenced difficulty might arise, but in the present case the trial had not commenced. It is not necessary to express any opinion as to whether a case can be put before a Special Judge, the trial of which has already commenced in one of the ordinary Courts. But if the trial has not commenced, it seems to me plain, that, under s. 5, the case can be placed before a Special Judge, and I see no reason why this Court should not give effect to the plain and natural meaning of the words used. The view of the Patna High Court, with which the other High Courts seem to agree, that a case cannot be transferred after the Magistrate has taken cognizance, is based on the ground that the Ordinance must be construed so as not to interfere with vested rights, and if that view is wrong as I think it is, the basis of the decision falls to the ground.

In my judgment, therefore, this Ordinance was valid and was applicable to the accused's case which has been validly transferred to a Special Judge in the Thana District. Therefore, the application fails. Rule discharged.

Divatia, J.:—Two points have been urged before us, the first relating to the alleged invalidity of the Special Criminal Courts Ordinance, and the second to its applicability to the present case. On the first point I agree with the conclusion as well as the reasons given by the learned Chief Justice, and need not therefore, dwell upon it.

On the second point about the applicability of the Ordinance to the present case, the contention on behalf of the petitioners is that although the Ordinance relates to criminal procedure, it cannot divest the accused of certain vested rights which they had when the Government order applying the Ordinance to the present case was made. The contention is that certain rights relating to the trial, viz. trial by jury, the right of appeal in case of conviction, and even the right of bail throughout the pendency of the criminal proceedings, are substantive and vested rights in the accused which could not be taken away by changing the procedure after the commencement of the criminal proceedings. On this point reliance has been placed not only in the arguments before us but also in the several judgments recently given by other High Courts on the analogy between civil actions and criminal proceedings. It may be taken as established that a right of appeal, a right to be tried by jury and even a right to get bail are substantive rights. The question, however, is at what stage they would come into existence in the sense of being such vested rights as cannot be taken away by subsequent legislation. The analogy of trial of civil cases on that point does not seem to me to be quite appropriate. As held in Colonial Sugar Refining Company v. Irving it is quite true that the right to appeal would begin on the date of the trial of the civil suit, and to the same effect is the decision of the Calcutta High Court in Sadar Ali v. Dalimuddin, in which it is observed that a suit, appeal and second appeal are really but steps in a series of proceedings connected by an intrinsic unity. When we come, however, to the application of this principle to criminal cases, the difficulty is that it is not in every criminal case that the trial begins when cognizance of the complaint is taken by a Magistrate. In cases which could be tried by a Magistrate, the trial may begin when cognizance was taken but in cases which are exclusively triable by a Court of Session the trial does not begin mu less and until an order of commitment is made. All the previous proceedings before the commitment are stages of enquiry at the end of which the accused may or may not be committed. The provisions of the Criminal Procedure Code with regard to cases exclusively triable by a Court of Session are that during the pendency of the Magisterial enquiry the accused may be discharged under s. 209 of the Criminal Procedure Code, and even if a charge is framed against him under s. 210, the Magistrate may, under s. 212, examine the defence witnesses whose names might have been given by the accused in the list under s. 211, and after such examination the Magistrate may, under s. 213, sub-s. (2), cancel the charge and discharge the accused if he is satisfied that there are not sufficient grounds for committing him. It is only if the accused, is not thus discharged either under s. 209 or under s. 213, sub-s. (2), that the order of commitment to the Sessions Court is made, and thereafter the trial takes place. It is really when the trial begins that the right to be tried by a jury and the right of appeal might arise. Till then they are not acquired rights, because at any stage the accused might be discharged by the Magistrate. That being so, if the law relating to the procedure of the trial is changed before the date of the trial, the accused is liable to be tried by the amended procedure as he has not acquired any vested right to be tried by the original law. It is only if the law is changed after the trial begins that an accused might claim to be tried by the original law as the right had vested in him. The general principle is that a statute is not to be construed to have a greater retrospective operation than its language renders necessary, and that no person has a vested right in any course of procedure, and therefore, alterations in procedure are to be retrospective unless there is some good reason against it. That good reason would be the possession of the right in the accused when the trial begins. In all the cases before us it is admitted that the offences with which the accused have been charged are exclusively triable by the Court of Session. In the first case the order of commitment was passed on October 31, 1942, after the Ordinance was promulgated in the Bombay Province on October 26 and the trial began on December 16. In the rest of the cases no order of commitment was even made before the cases were directed to be sent to the Special Judge. In my view, even in the first case the accused had not acquired any vested right at the date of the commitment inasmuch as the Ordinance had already been applied to the Bombay Province five days earlier, and under s. 5 of the Ordinance the case of the accused was liable to be sent to a Special Judge by the order of the Government.

It is, however, contended by Mr. Setalvad that the rights were vested in the accused on the date of the commitment in spite of the Ordinance having been applied to our Province before that date because the order of the Government sending the case to the Special Judge was passed on December 7 after the commitment and therefore the order cannot take away the right which had vested in the accused. In my opinion, the material date is the date of the trial, but even taking it that the date for determining whether the rights have been acquired is the date of commitment, the Government under s. 5 acquired the power of sending any case, which had not yet been tried, to a Special Judge before the commitment was made. As the liability of the accused to be tried, by a Special Judge came into existence when the Ordinance was applied to our Province, it cannot be said that the rights had remained vested in them at the date of commitment. The rights ceased to exist at the date when the law of procedure was changed in our Province and not at the date when the administrative order of sending the case to the Special Judge was passed. The general principle is that once the trial proceeds under the existing law and if the law is amended during the pendency of the trial, the accused cannot be tried to his detriment under the new law. But that has not taken place even in the first case before us. With respect to the right to apply for bail, the accused had that right under the Criminal Procedure Code till the Ordinance was applied and also till it was ordered that the trial was to take place before the Special Court. Even thereafter the right was not taken away, but s. 24A, which was added to the Ordinance before it was promulgated here, allows the right to apply for bail to the special Courts and bail may be granted if the Court is satisfied that there were reasonable grounds for believing that the accused is not guilty of the offence. With respect to the right to apply to the High Court under s. 491 of the Criminal Procedure Code, which is taken away by s. 26 of the Ordinance, that right could be exercised only if the Ordinance is invalid or does not apply to the case against the accused, but if it does, as we have held, there is no question of the exercise of the right.

In my opinion, therefore, even on the basis that the Ordinance was not meant to be retrospective in the sense of depriving the accused of their existing and substantial rights, in none of these cases were the accused in possession of such rights at the date of their trial. It is, therefore, not necessary to go into the question as to whether the Ordinance was, by its nature as an emergency war time measure, retrospective in its operation. It is sufficient to say that the accused had not any vested rights in them at the date when their trial began.

I, therefore, agree that the applications should be dismissed.

Weston, J.:—I agree with the judgment given by Lord the Chief Justice, and have very little to add. On the question of the applicability of the Ordinance to the facts of this case, once it is held that the principle of construction that what are called vested rights have not been intended to be disturbed will not apply to emergency legislation, such as Ordinance No. 11 of 1942, it seems to me that there is no good ground, in view of the wide terms of s. 5 of the Ordinance, which states:—

“A Special Judge shall try such offences or classes of offences, or such cases or classes of cases as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct.”

to exclude from the application of this section offences or classes of offences, or cases or classes of cases which have been the subject of preliminary enquiry, but which have not yet come to the stage of trial. There seems to be abundant authority in Liversidge v. Sir John Anderson that, when interpreting emergency legislation designed to ensure the safety of the State, the ordinary presumption that no interference is contemplated with rights of the subject should not be drawn. Lord Macmillan in the opinion delivered by him says (p. 251):

“In the first place, it is important to have in mind that the regulation in question is a war measure. This is not to say that the Courts ought to adopt in war time canons of construction different from those which they follow in peace time. The fact that the nation is at war is so justification for any relaxation of the vigilance of the Courts in seeing that the law is duly observed, especially in a matter so fundamental as the liberty of the subject—rather the contrary. But in a time of emergency when the life of the whole nation is at stake it may well be that a regulation for the defence of the realm may quite properly have a meaning which because of its drastic invasion of the liberty of the subject the Courts would be slow to attribute to a peace time measure. The purpose of the regulation is to ensure public safety, and it is right so to interpret emergency legislation as to promote rather than to defeat its efficiency for the defence of the realm. That is in accordance with a general rule applicable to the interpretation of all statutes or statutory regulations in peace time as well as in war time.”

Agreeing, as I do, that no presumption exists that individual rights are not to be affected by the Ordinance, in my opinion the wording of s. 5 is sufficiently wide to cover the order made by the Provincial Government in this case directing that it should be tried by a Special Judge. I agree, therefore, that this application must be dismissed.

M.C Setalvad applied for leave to appeal to the Federal Court. This case involves a substantial question as to the interpretation of the Government of India Act. That question is whether the expression “cases of emergency” in s. 72 in the ninth schedule to the Act means a threatened emergency or an actual emergency. No question of an Order in Council is involved here. An Ordinance is not an Order in Council. We have here an instrument purporting to be made under s. 72. The question is. Is it validly made? When the Governor General makes an Ordinance saying that an emergency has arisen, the question is. Is there an emergency for the purposes of s. 72? What is the authority of the Governor General and to what extent can he part with his powers? There is also a question about the interpretation of the items in the Legislative Lists appended to the Act.

N.P Engineer. The question about the interpretation of items in the lists becomes irrelevant in view of the terms of s. 102 of the Government of India Act. There is no question of interpretation of any section of the Act. In the Allahabad case the Court refused leave to appeal to the Federal Court.

Per Curiam. The other Applications Nos. 433, 435, and 436 of 1942 and No. 2 of 1943, being on similar facts, are also rejected.

In Application Nos. 431 and 436 of 1942 leave to appeal to the Federal Court is refused, as no substantial question of law as to the interpretation of the Government of India Act, 1935, arises.

Rules discharged.

J.G.R