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Santosh Kumar Bhattacharjee Accused, v. King-Emperor Opposite Party.
Court Opinion Summary: Santosh Kumar Bhattacharjee
Factual and Procedural Background
On 2 November 1942 Santosh Kumar Bhattacharjee was observed by policemen distributing leaflets in Calcutta. Two kinds of leaflets were found on him: one not regarded as objectionable and the other described by the Magistrate as a "prejudicial report" within the meaning of rule 34 of the Defence of India Rules. The police reported the matter and it was placed before Mr. J. Ahmad, Additional Chief Presidency Magistrate of Calcutta, who had been designated as a Special Magistrate under Ordinance No. II of 1942.
A chalan was issued under sections 38(5), 38(1)(c), 39(6) and 39(1)(6) of the Defence of India Rules and the hearing was fixed for 5 December 1942, with bail granted in the meantime. On 5 December the Magistrate noted that he took the case up as a Special Magistrate, heard prosecution witnesses, explained the charge and recorded the accused's plea, and adjourned to 12 December for cross-examination. On 12 December cross-examination and defence evidence took place, a written statement was put in by the accused, argument followed, and the Magistrate convicted the accused under rule 39(6) of the Defence of India Rules and sentenced him to rigorous imprisonment for six months.
The accused moved the High Court under its revisional jurisdiction and obtained a Rule calling on the Chief Presidency Magistrate to show cause why the conviction and sentence should not be set aside. The accused proposed to challenge the validity (ultra vires) of Ordinance No. II of 1942. The Government of Bengal was represented by the Advocate-General; the accused was represented by Mr. H.D. Bose.
Legal Issues Presented
- Whether Ordinance No. II of 1942 (Special Criminal Courts Ordinance, 1942) was ultra vires the powers of the Governor-General, in particular in light of sec. 72 of the Government of India Act and sec. 14 of the Defence of India Act, 1939.
- Whether the Magistrate had validly exercised jurisdiction as a Special Magistrate throughout the proceedings, given that he recorded taking the matter up as a Special Magistrate only on 5 December 1942.
- Whether the High Court's revisional jurisdiction over the conviction and sentence was barred by sec. 26 of the Ordinance (i.e., whether sec. 26 ousted ordinary courts from revisional jurisdiction and appeals).
Arguments of the Parties
Accused / Appellant (Mr. H.D. Bose)
- Contended that Ordinance No. II of 1942 was ultra vires the Governor-General's powers and therefore invalid.
- Relied on the Defence of India Act (Act XXXV of 1939), noting provisions for Special Tribunals (sec. 8 and sec. 10) and especially sec. 14 which provides that, "Save as otherwise expressly provided by or under this Act, the ordinary criminal and Civil Courts shall continue to exercise jurisdiction." He argued that the Defence of India Act did not provide for Special Magistrates sitting alone and thus ordinary criminal courts retained jurisdiction over the offence charged.
- Contended that the Magistrate did not act throughout the proceedings as a Special Magistrate (he recorded doing so only on 5 December), and that if the Ordinance were valid the Magistrate ought to have acted as a Special Magistrate from the outset.
- Sought revisional jurisdiction of the High Court to review conviction and sentence on the ground that the Ordinance and its ouster of ordinary jurisdiction were invalid.
Respondent / Crown (Government of Bengal)
The opinion does not contain a detailed account of the Crown's or Advocate-General's specific arguments in response; it is recorded only that the Advocate-General appeared for the Crown and the Government was put on notice. No further detailed submissions by the Crown are set out in the provided opinion.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court's analysis proceeds in two principal strands corresponding to the two main challenges raised by the accused: (A) validity of Ordinance No. II of 1942; and (B) whether the Magistrate's mode of acting as a Special Magistrate vitiated the proceedings.
(A) Validity of the Ordinance
- The Ordinance was enacted under powers said to be conferred by sec. 72 of the Government of India Act (as set out in the Ninth Schedule to the Government of India Act, 1935). The Ordinance itself recites an emergency and provides for Special Criminal Courts (Special Judges, Special Magistrates and Summary Courts), prescribes their powers and procedure, and contains an ouster clause in sec. 26 removing appeals and revisional jurisdiction in most cases dealt with under the Ordinance.
- Mr. Bose relied on sec. 14 of the Defence of India Act, 1939 (which preserves ordinary criminal and civil courts "save as otherwise expressly provided") and argued that because the Defence of India Act did not provide for Special Magistrates sitting alone, the ordinary criminal courts retained jurisdiction and thus controlled or superseded the Ordinance.
- The court considered the meaning of the clause in sec. 72 of the earlier Act that an ordinance "may be controlled or superseded by any such Act" (i.e., an Act of the Indian legislature). The court rejected an automatic application of the Defence of India Act as controlling the Ordinance simply because it was an earlier Act dealing with defence measures. Instead, the court interpreted "may be controlled by such Act" to mean controlled by an Act passed with an evident intention to control the Ordinance in question.
- The court emphasized the factual and temporal differences between the two enactments: the Defence of India Act (1939) addressed the wartime situation present in 1939 (war with Germany) while Ordinance No. II of 1942 was enacted to meet a "vastly different" emergency arising after 9 December 1941 (Japanese entry into Burma and proximity of a hostile army to India), a different and more serious set of circumstances. Because the Ordinance arose from materially different circumstances and was of equal authority, the court concluded that sec. 14 of the Defence of India Act did not control or invalidate Ordinance No. II of 1942.
- On that basis the court concluded that the Governor-General acted within legislative competence in making the Ordinance and the ultra vires contention must fail.
(B) Whether the Magistrate sufficiently acted as a Special Magistrate
- The court examined sec. 10 of the Ordinance which provides that a Special Magistrate shall try such offences as the Provincial Government may direct. There was no dispute that the magistrate had been appointed a Special Magistrate and that the offence charged was one that the Special Magistrate was directed to try.
- The court observed that the Ordinance requires a Special Magistrate, when taking up his duties as such, to make it clear to everyone (including the accused) that he is acting as a Special Magistrate; doing so ensures the accused understands his rights. Although the Magistrate recorded on 5 December that he took the case up as a Special Magistrate rather than having declared it from the very outset, the court held that this did not render the proceedings invalid where the appointment and jurisdictional direction were otherwise satisfied.
- Given the above the court found the Magistrate's proceedings valid under the Ordinance.
(C) Effect on revisional jurisdiction and appeals
- The accused's sentence (six months) fell within the limits where, under the Ordinance's provisions (secs. 13 and 26), he had no right of appeal. Section 26 contains an explicit ouster of appeals and revision from orders or sentences of courts constituted under the Ordinance, subject only to the exceptions in the Ordinance itself.
- The court held that sec. 26 removed the High Court's revisional jurisdiction in respect of the proceedings before the Special Magistrate, thereby barring the Rule sought by the accused.
(D) Additional procedural determinations
- The court stated it had no authority to deal with the question of bail in this matter.
- The court granted a certificate under section 205 of the Government of India Act (as recorded at the end of the opinion).
Holding and Implications
Holding: The court DISCHARGED the Rule obtained by the accused. It held (1) Ordinance No. II of 1942 was within the legislative competence of the Governor-General and was not ultra vires; (2) the Magistrate's proceedings were valid under that Ordinance; and (3) section 26 of the Ordinance barred the High Court's revisional jurisdiction in this case. The court also recorded that it had no authority to deal with bail and granted a certificate under sec. 205 of the Government of India Act.
Implications:
- Direct effect on the parties: The conviction and six-month sentence imposed by the Special Magistrate remain in force; the accused's application for revision in the High Court is dismissed because the Ordinance's ouster clause (sec. 26) removes revisional jurisdiction in respect of the proceedings before Special Criminal Courts constituted under the Ordinance.
- Broader implications: The opinion bases its result on the statutory interpretation of the Ordinance and its relationship with the Defence of India Act and sec. 72 of the Government of India Act. The opinion does not purport to set out or announce a general precedent beyond the statutory interpretation applied to the facts of this case; accordingly, no new judicial principle beyond the court's construction and application of the cited statutory provisions is stated in the provided opinion.
Certificate under sec. 205 of the Government of India Act was granted as recorded in the judgment.
Derbyshire, C.J:— On November 2nd, 1942, Santosh Kumar Bhattacharjee was observed by policemen distributing certain leaflets in Calcutta. He was arrested and, according to the Magistrate who dealt with the matter, two kinds of leaflets were found on him— one of which was not regarded as objectionable and the other was said to be a prejudicial report within the meaning of r. 34 of the Defence of India Rules. The matter was reported to the police who placed it before Mr. J. Ahmad, Additional Chief Presidency Magistrate of Calcutta. Mr. Ahmad had been designated by the Government of Bengal as a Special Magistrate to exercise powers conferred on Special Magistrates by Ordinance No. II of 1942.
2. A Chalan was issued under secs. 38(5), 38 (1) (c), 39 (6) and 39 (1) (6) of the Defence of India Rules and December 5th, 1942, was fixed for the hearing of the charge, the accused being granted bail in the meantime. On December 5th, 1942, the Magistrate made a note in his file that he took the case up as a Special Magistrate. He heard three prosecution witnesses, explained the charge and recorded the plea of the accused. Thereafter the Magistrate adjourned the case to December 12th for cross-examination.
3. On December 12th, 1942, prosecution witnesses were cross-examined and certain defence witnesses were examined. The accused put in a written statement and after argument the Magistrate convicted the accused Santosh Kumar Bhattacharjee and santenced him to undergo rigorous imprisonment for six months. The conviction was under r. 39 (6) of the Defence of India Rules which provided a maximum punishment of imprisonment up to three years or a fine or both. The accused thereupon moved this Court under its revisional jurisdiction for a Rule and obtained a Rule upon the Chief Presidency Magistrate of Calcutta to show cause why the conviction and sentence referred to should not be set aside. It was intimated to the Court that the accused wished to raise a question as to whether Ordinance No. II of 1942 was ultra vires the powers of the Governor-General. Accordingly the matter is brought before this Bench on notice to the Government of Bengal and the learned Advocate-General has appeared on behalf of the Crown. The accused is represented by Mr. H.D Bose.
4. Mr. Bose complained that the Ordinance is ultra vires and also contended that the Magistrate had not acted throughout in the exercise of his jurisdiction as a Special Magistrate, in that it was only when he sat on December; 5th, 1942, that he recorded that he took the matter up as a Special Magistrate. He contended that the Magistrate ought throughout from the commencement of his dealing with the case have acted as a Special Magistrate if the Ordinance which created Special Magistrates was valid.
5. The Ordinance was made on December 31st, 1941, and published in the Gazette of India on January 2nd, 1942. The Ordinance recites that a special emergency has arisen which makes it necessary to provide for the setting up of special Criminal Courts and that in exercise of the powers conferred by sec. 72 of the Government of India Act as set out in the Ninth Schedule to the Government of India Act, 1935, the Governor-General makes and promulgates the Ordinance which is called the Special Criminal Courts Ordinance, 1942. Sec. 1 provides that the Ordinance 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 from the imminence of such an attack, by notification in the Official Gazette, declares it to be in force in the province.
6. By sec. 3, Courts of Criminal Jurisdiction are constituted as follows, (i) Special Judges; (ii) Special Magistrates; and (iii) Summary Courts.
7. Secs. 4, 5, 6 and 7 deal with the appointment, jurisdiction, procedure and powers of the Special Judges.
8. Sec. 8 deals with the review of such convictions.
9. Sec. 9 provides that a Presidency Magistrate or Magistrate of the first class who has exercised powers as such for a period of not less than two years may be invested with the powers of a Special Magistrate under the Ordinance.
10. Sec. 10 directs that a Special Magistrate shall try such offences or classes of offences, or such cases or classes of cases other than offences or cases involving offences punishable under the Indian Penal Code with death, 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.
11. Sec. 11 (1) provides that in the trial of any case a Special Magistrate shall follow the procedure laid down in sub-sec. (1) of sec. 6 for the trial of cases by a Special Judge.
12. It may be noted here that sec. 6(1) provides that a Special Judge, in trying an accused person, shall follow the procedure prescribed by the Code for the trial of warrant cases by Magistrates.
13. Sec. 12 provides that a Special Magistrate may pass any sentence authorised by law, except a sentence of death or of transportation or imprisonment exceeding seven years.
14. Sec. 13 (1) provides that where a Special Magistrate passes a sentence of transportation or imprisonment for a term exceeding two years, an appeal shall lie to the Special Judge having jurisdiction in the area or if there is no Special Judge for the area, to the High Court in a Presidency town and elsewhere to the Court of Session.
15. Other provisions follow, but the only ones with which we are concerned are secs. 26 and 27.
16. Sec. 26 provides:
“Notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall, save as provided in this Ordinance, be no appeal from any order or sentence of a Court constituted under this Ordinance and, save as aforesaid, no Court shall have authority to revise such order or sentence, or to transfer any case from any such Court, or to make any order under sec. 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such Court.”
17. Sec. 27 provides:
“The provisions of the Code and of any other law for the time being in force, in so far as they may be applicable and in so far as they are not inconsistent with the provisions of this Ordinance, shall apply to all matters connected with, arising from or consequent upon a trial by special criminal Courts constituted under this Ordinance.
The accused has been sentenced to six months' imprisonment by a Presidency. Magistrate and, therefore, he has no right of appeal under the provisions of secs. 13 and 26 of the Ordinance. Under sec. 411 of the Code of Criminal Procedure he would have no right of appeal to the ordinary Courts against his conviction as it does not exceed six months. He therefore has moved this Court in its Revisional Jurisdiction, in order to have his case considered both as to conviction and sentence; but there is the bar to revisional jurisdiction being exercised by this Court contained in sec. 26. The accused however contends that the provisions of the Ordinance are invalid and that the jurisdiction of Special Magistrates and the prohibitions against recourse to the ordinary Courts are illegal; that being so he is entitled to come to this Court in its revisional jurisdiction.
18. Mr. Bose has drawn our attention to the provisions of the Defence of India Act (Act XXXV) of 1939, which provides in sec. 8 of Chap. III for the setting up of Special Tribunals which shall consist of three members appointed by the Provincial Government, and also to sec. 10 of that Act which deals with the procedure of Special Tribunals. He relies especially upon the provisions of sec. 14 of the Defence of India Act which are as follows:
“Save as otherwise expressly provided by or under this Act, the ordinary criminal and Civil Courts shall continue to exercise jurisdiction.”
19. He says that Special Magistrates are not set up and provided for under the Defence of India Act and that therefore ordinary Criminal Courts alone have jurisdiction to deal with the offence with which the accused has been charged and of which he has been convicted.
20. Mr. Bose also referred to the provisions of sec. 317 of the Government of India Act, 1935, under which the Ordinance was made. Sec. 317 continues the powers given to the Government in certain sections of the Government of India Act, 1915, and provides that the provisions of the Government of India Act set out, with amendments consequential on the provisions of this Act, in the Ninth Schedule to this Act shall, subject to those amendments, continue to have effect, notwithstanding the repeal of the 1915 Act by the Act of 1935. In the Ninth Schedule of the Government of India Act, 1935, sec. 72 of the Government of India Act, 1915, is set out and it provides as follows:
“The Governor-General may, in cases of emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof; and any ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian legislature; but the power of making ordinances under this section is subject to the like restrictions as the power of the Indian legislature to make laws; and any ordinance made under this section is subject to the like disallowance as an Act passed by the Indian legislature, and may be controlled or superseded by any such Act.”
21. It is conceded that by the Act of Parliament styled India and Burma (Emergency Provisions) Act of 1940— sec. 1 (3)— that particular provision is to be read as if the words “for the space of not more than six months from its promulgation” were omitted. That removes the time-limit to the Ordinance.
22. Mr. Bose refers to the last passage in sec. 72, namely, the words “and may be controlled or superseded by any such Act.” Such an Act is an Act of the Indian legislature and Mr. Bose says that sec. 14 of the Defence of India Act of 1939 controls the powers of the Ordinance and that except as regards Special Tribunals of three persons set up under the Defence of India Act, the ordinary Criminal Courts shall continue to exercise their jurisdiction. He says that that is the control over the Ordinance that is referred to in sec. 72 of the Government of India Act, 1915.
23. It is quite true that in the Defence of India Act no mention is made of Special Magistrates sitting alone. However, that is not the whole matter. In my view the words “may be controlled by such Act” may mean “may be controlled by such an Act as is passed with an evident intention to control the Ordinance.” It cannot be that an Act passed in 1939, dealing with a position which had arisen in 1939, can be deemed to control a piece of legislation which for the time being is of equal authority, passed to meet another different and more serious set of circumstances arising some 2¼ years afterwards in 1941.
24. The position when the Defence of India Act was passed was that Great Britain and India were at war with Germany. It was necessary to take precautions to deal with that situation. The situation which existed after December 9th, 1941, when Japan declared war on Great Britain and marched into Burma, territory adjoining India, was vastly different. There was in the country contiguous to India— a part of the country which had formerly been governed along with India and considered as one with India— a hostile army which was invading that territory (Burma) and marching towards the Indian frontier. There was also possibility of an attack both from sea and from the air upon Indian territory and the re-actions to those hostile conditions upon India might be and were vastly different from the re-action to the declaration of war in September, 1939.
25. Apart from matters of strict legal construction, it is clear to me that the Ordinance No. II of 1942 was passed to meet a situation vastly different from and never contemplated in 1939 when the Defence of India Act was passed. Under those circumstances, in my view, it is impossible to say that sec. 14 of the Defence of India Act controls in any way Ordinance No. II of 1942 which, as far as it goes, is of equal authority and arose from circumstances quite different from those in 1939. In my opinion the making of Ordinance No. II of 1942 was within the legislative competence of the Governor-General and the contention of ultra vires must fail.
26. As regards the second point raised by Mr. Bose that the Magistrate did not throughout these proceedings act as a Special Magistrate under the Ordinance, I am of the opinion that that too fails.
27. Sec. 10 of the Ordinance provides that “a Special Magistrate shall try such offences or classes of offences… as the Provincial Government…. may, by general or special order in writing, direct.” There is no question here that the Magistrate was appointed a Special Magistrate. There is no question that the offence with which the accused was charged and of which he was convicted was one that the Special Magistrate was directed to deal with. All that the Ordinance says is that the Special Magistrate shall try such offences. It is his duty, when he takes up his duties of Special Magistrate, to make it clear to everyone, including the accused, that he is doing so, and then no question can arise of the accused person not knowing what his rights are.
28. It follows from what I have said that I am of the opinion that the Ordinance is valid and that the proceedings of the Magistrate were valid within that Ordinance: that under the Ordinance the accused has no right to appeal as his sentence was six months only and that the Revisional Jurisdiction of this Court is taken away by the provisions of sec. 26 of the Ordinance.
29. I am therefore of the opinion that this Rule must be discharged.
30. I am of the opinion that we have no authority to deal with the question of bail.
31. Certificate is granted under sec. 205 of the Government of India Act in this case.
Lodge, J.— I agree.
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