minal Appeals Nos
25 27 of 1955
Appeals from the judgments and order dated February 1 1955 of the Punjab High Court Circuit Bench Delhi in Cr
Appeals Nos
5 D 6 D and 13 D of 1952 arising out of the judgments and orders dated December 22 1951 of the 1st Class Magistrate New Delhi in Criminal Cases Nos 2202 2212 and 2232 of 1949
89 Ram Lal Anand and section N Anand for the appellant
H J Umrigar and T M Sen for the respondent
January 20
The Judgment of the Court was delivered by GAJENDRAGADKAR J
These three appeals have been filed with certificates granted by the High Court of Punjab under article 1341 c of the Constitution and they arise from three criminal cases filed against the appellant
The appellant Gopi Chand was the chief cashier and Hukam Chand was an assistant cashier in the United Commercial Bank Ltd New Delhi
They were charged with the commission of offences under section 409 in three separate cases
In the first case No 2232 of 1949 the prosecution case was that on or about April 8 1948 both had agreed to commit or cause to be committed criminal breach of trust in respect of the funds of the Bank where they were employed and in pursuance of the said agreement they had committed criminal breach of trust in respect of the total amount of Rs 165000
They were thus charged under sections 408 409 and 120B of the Indian Penal Code
The appellant was convicted of the offence under section 409 read with section 120 and sentenced to rigorous imprisonment for seven years
Against this order of conviction and sentence he preferred an appeal to the High Court of Punjab No 5 D of 1952
The High Court confirmed his conviction but altered the sentence imposed on him by directing that he should suffer four year s rigorous imprisonment and pay a fine of Rs 10000 or in default suffer rigorous imprisonment for fifteen months
The order of conviction and sentence thus passed gives rise to Criminal Appeal No 25 of 1955 in this Court
In the second case No 2212 of 1949 the appellant was charged with having committed an offence under sections 408 and 409 of the Indian Penal Code in that he had committed criminal breach of trust in respect of an amount of Rs 23772 8 6
The trial magistrate convicted the appellant of the said offence and sentenced him to suffer rigorous imprisonment for five years
12 90 On appeal No 6 D of 1952 the order of conviction was confirmed but the sentence imposed on him was reduced to three years  rigorous imprisonment
This order has given rise to Criminal Appeal No 26 of 1955 in this Court
In the third case No 2202 of 1949 the appellant Hukam Chand and Ganga Dayal were charged with having committed an offence under section 409408 read with section 120B of the Indian Penal Code in that all of them had agreed to commit criminal breach of trust in respect of the sum of Rs 10000 belonging to the Bank and that in pursuance of the said agreement they had committed the criminal breach of trust in respect of the said amount
The trial magistrate convicted the appellant of the offence charged and sentenced him to four year s rigorous imprisonment
On appeal No 13 D of 1952 the High Court confirmed the conviction but reduced the sentence to two years  rigorous imprisonment
From this order arises Criminal Appeal No 27 of 1955 in this Court
The appellant has obtained a certificate from the High Court under article 1341 c of the Constitution because he seeks to challenge the validity of the order of conviction and sentence passe against him in the three cases on the ground that the proceedings in all the said cases are void
He contends that whereas the charges framed against him had to be tried according to the procedure prescribed for the trial of warrant cases the learned trial magistrate tried all the cases according to the procedure prescribed for the trial of summons cases and that makes void all the proceedings including the final orders of conviction and the sentences
The point arises in this way
The East Punjab Public Safety Act 1949 Punj
5 of 1949 hereinafter called the Act which came into force on March 29 1949 was passed to provide for special measures to ensure public safety and maintenance of public order
It is common ground that the offences with which the appellant was charged would normally have to be tried under the procedure prescribed by ch
XXI of the Code of Criminal Procedure for the trial of warrant 91 cases but in fact they have been tried under the procedure prescribed by ch
XX for the trial of summons cases
The summons procedure differs from the warrant procedure in some material points
Under the former procedure a charge is not to be framed while under the latter a charge has to be framed under section 254 of the Code
Similarly an accused person gets only one chance of cross examining the prosecution witnesses under the summons procedure whereas under the warrant procedure he is entitled to cross examine the said witnesses twice once before the framing of the charge and again after the charge is framed
The appellant concedes that the cases against him were tried according to the summons procedure by reason of section 36 of the Act and the notification issued under it but be contends that the relevant provisions of the Act are ultra vires and he alternatively argues that the proceedings in respect of a substantial part were continued under the summons procedure even after the Act had expired and the relevant notifications had ceased to be operative
That is how the validity of the trial and of the orders of conviction and sentence is challenged by the appellant
It would be relevant at this stage to refer to the material provisions of the Act and the relevant notifications issued under it
The Act came into force on March 29 1949
It was passed to provide for special measures to ensure public safety and maintenance of public order
Section  36 of the Act prescribes the procedure for the trial of specified offences under sub section
1 all offences under this Act or under any other law for the time being in force in a dangerously disturbed area and in any other area all offences under this Act and any other offence under any other law which the Provincial Government may certify to be triable under this Act shall be tried by the courts according to the procedure prescribed by the Code provided that in all cases the procedure prescribed for the trial of summons cases by ch
XX of the Code shall be adopted subject in the case of summary trials to the provisions of sections 263 to 265 of the Code
For the avoidance of doubt sub section 2 provided that 92 the provisions of sub section
1 shall apply to the trial of offences mentioned therein committed before the com mencement of this Act and in a dangerously disturbed area committed before the date of the notification under section 20 in respect of it
Under section 20 the Provincial Government is authorised by notification to declare that the whole or any part of the Province as may be specified in the notification to be a dangerously disturbed area
Four notifications were issued under section 20
By the first notification issued on July 8 1949 the whole of the Province of Delhi was declared to be a dangerously disturbed area by the competent authority
It appears that on September 28 1950 the said authority issued the second notification cancelling the first notification with effect from October 1 1950
This notification was followed by the third notification on October 6 1950 which purported to modify it by inserting the words  except as respect things done or omitted to be done before the date of this notification after the words  with effect from October 1 1950 in other words this notification purported to introduce an exception to the cancellation of the first notification caused by the second and in effect it purported to treat the Province of Delhi as a dangerously disturbed area in respect of things done or omitted to be done before the date of the said notification
The last notification was issued on April 7 1951
This notification was issued by the Chief Commissioner of Delhi in exercise of the powers conferred by sub section
1 of section 36 of the Act and by it he certified as being triable under the said Act in any area within the State of Delhi not being a dangerously disturbed area the following offences viz any offence under any law other than the aforesaid Act of which cognisance had been taken by any magistrate in Delhi before October 1 1950 and the trial of it according to the procedure prescribed in ch
4 of the said Act was pending in any court immediately before the said date and had not concluded before the date of the certificate issued by the notification
Let us now mention the facts about the trial of the 93 three cases against the appellant about which there is no dispute
 The First Information Report was filed against the appellant on June 30 1948
The trial commenced on July 18 1949 and it was conducted according to the procedure prescribed by ch
XX of the Code 
Some prosecution witnesses were examined and cross examined before January 26 1950 and the  whole of the prosecution evidence was recorded before August 14 1951
The evidence for the defence was recorded up to November 14 1951 and the learned magistrate pronounced his judgments in all the cases on December 22 1951
For the appellant Mr Ram Lal Anand contends that section 361 of the Act is ultra vires because it violates the fundamental right of equality before law guaranteed by article 14 of the Constitution
His argument is that since offences charged against the appellant were triable under the warrant procedure under the Code the adoption of summons procedure which section 361 authorised amounts to discrimination and thereby violates article 14
It is the first part of sub section
1 of section 36 which is impugned by the appellant
The effect of the impugned provisions is that after an area is declared to be dangerously disturbed offences specified in it would be tried according to the summons procedure even though they have ordinarily to be tried according to warrant procedure
The question is whether in treating the dangerously disturbed areas as a class by themselves and in providing for one uniform procedure for the trial of all the specified offences in such areas the impugned provision has violated article 14
The point about the construction of article 14 has come before this Court on numerous occasions and it has been consistently held that article 14 does not forbid reasonable classifications for the purpose of legislation
In order that any classification made by the Legislature can be held to be permissible or legitimate two tests have to be satisfied
The classification must be based on an intelligible differentia which distinguishes persons or things grouped together in one class from others left out of it and the differentia must have a 94 reasonable or rational nexus with the object sought to be achieved by the said impugned provision
It is true that in the application of these tests uniform approach might not always have been adopted or in dealing with the relevant considerations emphasis might have shifted but the validity of the two tests that have to be applied in determining the vires of the impugned statute under article 14 cannot be doubted
In the present case the classification has obviously been made on a territorial or geographical basis
The Legislature thought it expedient to provide for the speedy trial of the specified offences in areas which were notified to be dangerously disturbed areas  and for this purpose the areas in the State have been put in two categories those that are dangerously disturbed and others
Can it be said that this classification is not founded on an intelligible differentia In dealing with this question it would be relevant to recall the tragedy of the holocaust and the savage butchery and destruction of property which afflicted several parts of the border State of Punjab in the wake of the partition of India
Faced with the unprecedented problem
presented by this tragedy the Legislature thought that the dangerously disturbed areas had to be dealt with on a special footing and on this basis it provided inter alia for the trial of the specified offences in a particular manner
That obviously is the genesis of the impugned statute
That being the position it is impossible to hold that the classification between dangerously disturbed areas of the State on the one hand and the non_ disturbed areas on the other was not rational or that it was not based on an intelligible differentia
Then again the object of the Act was obviously to ensure public safety and maintenance of public order and there can be no doubt that the speedy trial of the specified offences had an intimate rational relation or nexus with the achievement of the said object
There is no doubt that the procedure prescribed for the trial of summons cases is simpler shorter and speedier and so when the dangerously disturbed areas were facing the problem of unusual civil commotion and strife the Legislature was justified 95 in enacting the first part of section 36 so that the cases against persons charged with the commission of the specified offences could be speedily tried and disposed of
We are therefore satisfied that the challenge to the vires of the first part of sub section
1 of section 36 cannot be sustained
In this connection we may refer to the recent decision of this Court in Ram Krishna Dalmia vs Justice Tendolkar 1
The judgment in that case has considered the previous decisions of this Court on article 14 has classified and explained them and has enumerated the principles deducible from them
The application of the principles there deduced clearly supports the validity of the impugned provisions
It is however urged by Mr Ram Lal Anand that the decision of this Court in Lachmandas Kewalram Ahuja vs The State of Bombay 2 supports his contention that section 361 is invalid
We are not impressed by this argument
In Ahuja s case 2 the objects of the impugned Act were the expediency of consolidating and amending the law relating to the security of the State maintenance of public order and maintenance of supplies and services essential to the community in the State of Bombay
These considerations applied equally to both categories of cases those referred to the Special Judge and those not so referred and so on the date when the Constitution came into force the classification on which section 12 was based became fanciful and without any rational basis at all
That is why according to the majority decision section 12 contravened article 14 of the Constitution and as such was ultra vires
It is difficult to see how this decision can help the appellant s case
The impugned provision in the present case makes no distinction between one class of cases and another much less between cases directed to be tried according to the summons procedure before January 26 1950 and those not so directed
The summons procedure is made applicable to all offences under the Act or under any other law for the time being in force in other words all criminal offences are ordered to be tried according to the summons procedure in the dangerously disturbed areas
That being 1  2   731
96 so we do not think that the decision in Ahuja s case 1 has any application at all
Thus we feel no difficulty in holding that the impugned provision contained in the first part of section 361 is constitutional and valid
Then it is urged that the Act which came into force on March 29 1949 was due to expire and did expire on August 14 1951 and so the proceedings taken against the appellant under the summons procedure after the expiration of the temporary Act were invaid
It is argued that in dealing with this point it would not be permissible to invoke the provisions of section 6 of the General Clauses Act because the said section deals with the effect of repeal of permanent statutes
This argument no doubt is well founded
As Craies has observed  as a general rule unless it contains some special provisions to the contrary after a temporary Act has expired no proceedings can be taken upon it and it ceases to have any further effect  2
This principle has been accepted by this Court in Krishnan vs The State of Madras 3
 The general rule in regard to a temporary statute is  observed Patanjali Sastri J  that in the absence of special provision to the contrary proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires
It is true that the Legislature can and often enough does avoid such an anomalous consequence by enacting in the temporary statute a saving provision and the effect of such a saving provision is in some respects similar to the effect of the provisions of section 6 of the General Clauses Act
As an illustration we may refer to the decision in Wicks vs Director of Public Prosecutions 4
In that case ail offence against Defence General Regulations made under the Emergency Powers Defence Act 1939 was committed during the currency of the Act and the offender was prosecuted and convicted after the expiry of the Act
The contention raised by the offender that his prosecution and conviction were invalid because at the relevant time the temporary 1   731
2 Craies on  Statute Law  5th Ed P 377
3   628
4 1947 AC 362
97 Act had expired was rejected in view of the provisions of
11 sub section
3 of the Act
This sub section had provided that the expiry of the Act shall not affect the operation thereof as respects things previously done or omitted to be done
The House of Lords agreed with the view expressed by the Court of Criminal Appeal and held that it was clear that Parliament did not intend sub section 3 to expire with the rest of the Act and that its presence in the statute is a provision which preserved the right to prosecute after the date of its expiry
Since the impugned Act does not contain an appropriate saving section the appellant would be entitled to contend that after the expiration of the Act the procedure laid down in it could no longer be invoked in the cases then pending against the appellant
We would like to add that in the present case we are not called upon to consider whether offences created by a temporary statute cease to be punishable on its expiration
For the respondent Mr Umrigar however contends that the appellant is wrong in assuming that the Act in fact expired on August 14 1951
He has invited our attention to the provisions of Act No I of 1951 by which the President extended some of the provisions of the earlier temporary Act in exercise of the powers conferred by section 3 of the Punjab State Legislature Delegation of Powers Act 1951 46 of 1951 The provisions of that Act extended to the whole of the State of Punjab and came into force on September 13 1951
Mr Umrigar relied on section 16 of Act 46 of 1951 which repealed the East Punjab Public Safety Act 1949 Punj
5 of 1949 and the East Punjab Safety Amendment Ordinance 1951 5 of 1951 but provided that notwithstanding such repeal any order made notification or direction issued appointment made or action taken under the said Act and in force immediately before the commencement of this Act shall in so far as it is not inconsistent therewith continue in force and be deemed to have been made issued or taken under the corresponding provisions of this Act
It must however be pointed out that this 13 98 Act does not continue the material provisions of the impugned Act such ass 20 and section 36  and so section 16 cannot be invoked for the purpose of validating the continuation of the subsequent proceedings against the appellant in the cases then pending against him
Besides it is necessary to recall that section 361 of the Act prescribed the application of the summons procedure in the trial of specified offences only in dangerously disturbed areas and so unless it is shown that the relevant area could be treated as a dangerously disturbed area at the material time section 361 would be inapplicable
In other words the adoption of the summons procedure would be justified only so long as the area in question could be validly treated as a dangerously disturbed area and it is therefore pertinent to enquire whether at the relevant time the area in question was duly and validly notified to be a dangerously disturbed area
We have already referred to the four notifications issued by the competent authority
The second notification purported to cancel with effect from October 1 1950 the first notification which had declared the whole of the Province of Delhi as a dangerously disturbed area
A week thereafter the third notification sought to introduce an exception to the cancellation as notified by the second notification
Apart from the question as to whether after the lapse of a week it was competent to the authority to modify the second notification it is difficult to understand how it was within the jurisdiction of the notifying authority to say that the whole of the Province of Delhi had ceased to be a dangerously disturbed area  except as respects things done or omitted to be done before the date of this notification 
Section 20 of the Act under which this notification has been issued authorised the Provincial Government to declare that the whole or any part of the Province was a dangerously disturbed area
The notification could declare either the whole or a part of the Province as a dangerously disturbed area but section 20 does not empower the notifying authority to treat any area as being dangerously disturbed in respect of certain things and not dangerously disturbed 99 in regard to others
Authority to  declare areas as dangerously disturbed has no doubt been validly delegated to the Provincial Government but no authority has been conferred on the delegate to treat any area as disturbed for certain things and not disturbed for others
We have therefore no doubt that in introducing the exception to the cancellation effected by the second notification the third notification has gone outside the authority conferred by section 20 and is clearly invalid
If that be so it must be held that the whole of the Province of Delhi ceased to be a dangerously disturbed area as from October 1 1950
It was probably realised that the third notification would be invalid and hence the fourth notification was issued on April 7 1951
This purports to be a certificate issued by the competent authority under the second part of section 36 sub section 1
This certificate seeks to achieve the same result by declaring that though the State of Delhi was not a dangerously disturbed area the offences specified in the notification would nevertheless continue to be tried according to the summons procedure
This notification is clearly not authorised by the powers conferred by the second part of section 36 sub section
What the Provincial Government is authorised to do by the second part of section 361 is to direct that in areas other than those which are dangerously disturbed all offences under the Act and any other offence under any other law should be tried according to the summons procedure
It is clear that the notification which the Provincial Government is authorised to issue in this behalf must relate to all offences under the Act and any other offence under any other law
In other words it is the offences indicated which can be ordered to be tried under the summons procedure by the notification issued by the Provincial Government
The Provincial Government is not authorised to issue a notification in regard to the trial of any specified case or cases and since it is clear that the notification in question covers only pending cases and has no reference to offences or class of offences under the Indian Penal Code it is outside the 100 authority conferred by the second part of section 361
It is obvious that the third and the fourth notifications attempted to cure the anomaly which it was apprehended would follow in regard to pending cases in the absence of a saving section in the Act
If through inadvertence or otherwise the Act did not contain an appropriate saving section the defect could not be cured by the notifications issued either under section 20 or under section 361 of the Act
In issuing the said notifications the competent authority was taking upon itself the functions of the Legislature and that clearly was outside its authority as a delegate either under section 20 or under section 361 of the Act
Mr Umrigar then argues that the competent authority was entitled to modify the notification issued by it because the power to issue a notification must also involve the power either to cancel vary or modify the same and in support of this argument Mr Umrigar relies on the provisions of section 19 of the Punjab General Clauses Act 1898 Punj 1 of 1898 which in substance corresponds to cl 21 of the 10 of 1897
In our opinion this argument is not well founded
Section 19 of the Punjab  like section 21 of the  embodies a rule of construction the nature and extent of the application of which must inevitably be governed by the relevant provisions of the statute which confers the power to issue the notification
The power to cancel the notification can be easily conceded to the competent authority and so also the power to modify or vary it be likewise conceded but the said power must inevitably be exercised within the limits prescribed by the provision conferring the said power
Now section 20 empowers the Provincial Government to declare the whole or any part of the Province to be a dangerously disturbed area and if a notification is issued in respect of the whole or any part of the Province it may be either cancelled wholly or may be modified restricting the declaration to a specified part of the Province
The power to cancel or modify must be exercised in reference to the areas of the Province which it is competent for the Provincial 101 Government to specify as dangerously disturbed
The power to modify cannot obviously include the power to treat the same area as dangerously disturbed for persons accused of crimes committed in the past and not disturbed for others accused of the same or similar A offences committed later
That clearly is a legislative function which is wholly outside the authority conferred on the delegate by section 20 or section 361
We must therefore hold that the third and the fourth notifications are invalid and as a result of the second notification the whole of the Province of Delhi ceased to be a dangerously disturbed area from October 1 1950
This position immediately raises the question about the validity of the proceedings continued against the appellant in the three cases pending against him under the summons procedure
So long as the State of Delhi was validly notified to be a dangerously disturbed area the adoption of the summons procedure was no doubt justified and its validity Could not be impeached but with the cancellation of the relevant notification section 361 of the Act ceased to apply and it was necessary that as from the stage at which the cases against the appellant then stood the warrant procedure should have been adopted and since it has not been adopted the trial of the three cases is invalid and so the orders of conviction and sentence imposed against him are void
That in brief is the alternative contention raised before us by Mr Ram Lal Anand
Mr Umrigar urges that since the trial had validly commenced under the summons procedure it was unnecessary to change the procedure after October 1 1950 and his case is that the trial is not defective in any manner and the challenge to the validity of the impugned orders of conviction and sentence should not be upheld
In support of his argument Mr
Umrigar has invited our attention to some decisions which may now be considered
In Srinivasachari vs The Queen 1 the accused was tried by a Court of Sessions in December 1882 on charges some of which were triable by assessors and others by jury
Before the trial was concluded the Code of Criminal Procedure 1882 came into force 1 Mad
336 102 and under section 269 of the Code all the said charges became triable by jury
Section 558 of the Code had provided that the provisions of the new Code had to be applied as far as may be to all cases pending in any criminal court on January 1 1883
The case against the accused which was pending on the date when the new Act came into force was submitted to the High Court for orders and the High Court directed that by virtue of section 6 of the the trial must be conducted under the rules of procedure in force at the commencement of the trial
It is clear that the decision of the High Court was based both on the specific provisions of section 558 which provided for the application of the new Code to pending cases only as far as may be and on the principles laid down in section 6 of the 
That is why that decision cannot assist the respondent since section 6 of the is inapplicable in the present case
The decision on Mukund vs Ladu 1 is also inapplicable for the same reasons
It was a case where one act was repealed by another and so the question as to the applicability of the provisions of the latter act had to be considered in the light of the provisions of section 6 of the 
The judgment in terms does not refer to section 6 but the decision is obviously based on the principles of the said section
Then MrUmrigar relied on Gardner vs Lucas 2
In that case section 39 of the Conveyancing Scotland Act 1874 with which the court was dealing affected not only the procedure but also substantive rights and so it was held that the said section was not retrospective in operation
This decision is wholly inapplicable and cannot give us any assistance in the present case
Mr Umrigar also placed strong reliance on a decision of the Full Bench of the Punjab High Court in Ram Singh vs The Crown 3
That decision does lend support to Mr Umrigar s contention that the continuation of the trial under the summons procedure did not introduce any infirmity and was in fact appropriate 1 2 3 AIR 1950 East Punjab 25 103 and regular
The case against Ram Singh had been sent to the Court of Session under the provisions of section 37 1 of the Punjab Public Safety Act 1948 Punj 2 of 1948 at a time when Luahiana District was declared to be a dangerously disturbed area before however the trial in the Court of Session actually commenced the District ceased to be a  dangerously disturbed area
Even so it was held that the Sessions Judge should continue with the trial under the provisions of section 37 1 of the Act and not under the ordinary provisions of the Code regarding sessions trial and should follow the procedure prescribed for the trial of summons cases
It appears that the judgment in the case proceeded on the assumption that the principles enacted by section 6 of the were applicable and so since at the commencement of the proceedings the adoption of the summons procedure was justified under section 37 1 of the Act the trial could continue under the same procedure even after the area had ceased to be a dangerously disturbed area
In our opinion it is erroneous to apply by analogy the provisions of section 6 of the to cases governed by the provisions of a temporary Act when the said Act does not contain the appropriate saving section
Failure to recognise the difference between cases to which section 6 of the applies and those which are governed by the provisions of a temporary Act which does not contain the appropriate saving section has introduced an infirmity in the reasoning adopted in the judgment
Besides the learned judges with respect were in error in holding that the application of the ordinary criminal procedure was inadmissible or impossible after the area ceased to be dangerously disturbed
No doubt the learned judges recognised the fact that ordinarily the procedural law is retrospective in operation but they thought that there were some good reasons against applying the ordinary procedural law to the case and that is what influenced them in coming to the conclusion that the summons procedure had to be continued even after the area ceased to be dangerously disturbed
In this connection the learned 104 judges referred to the observation in Maxwell that  the general principle however seems to be that alterations in procedure are retrospective unless there be some good reason against it 1  and they also relied on the decision of the Privy Council in Delhi Cloth and General Mills Co Ltd vs Income tax Commissioner Delhi 2 in which their Lordships have referred with approval to their earlier statement of the law in the Colonial Sugar Refining Co vs Irving 3 that  while provisions of a statute dealing merely with matters of procedure may properly unless that construction be textually inadmissible have retrospective effect attributed to them
The learned judges took the view that these principles justified their conclusion that where the provisions of a statute dealing with matters of procedure are inapplicable to a certain proceeding pending at the time the statute came into force they must be regarded as textually inadmissible so far as those proceedings are concerned 
We are disposed to think that this view is not sound
We do not think that the adoption of the ordinary warrant procedure was either inadmissible or inapplicable at the stage where the trial stood in the case against Ram Singh 4
It was wrong to assume that the ses sions procedure would be inapplicable for the reason that the provisions of the Code in regard to the commitment of the case to the Court of Session had not been complied with
With respect the learned judges failed to consider the fact that the procedure adopted in sending the case to the Court of Session under section 371 of the relevant Act was valid and the only question which they had to decide was what procedure should be adopted after Ludhiana ceased to be a dangerously disturbed area
Besides it was really not a case of retrospective operation of the procedural law it was in fact a case where the ordinary procedure which had become inapplicable by the provisions of the temporary statute became applicable as soon as the area in question ceased to be dangerously disturbed
1 Maxwell on  Interpretation of Statutes  9th Ed
P 226
2 3 4 AIR 1950 East Punjab 25 105 In this connection it is relevant to refer to the decision of this Court in Syed Qasim Razvi vs The State of Hyderabad 1
In that case this Court was dealing with the regulation called the Special Tribunal Regulation V of 1358 Fasli which had been promulgated by the Military Governor of the Hyderabad State
The said regulation had provided that the Military Governor may by general or special order direct that any offence or class of offences should be tried by such tribunal and the procedure for trial laid down by it differed from the provisions of the Hyderabad Criminal Procedure Code in several material particulars
The cases against the accused were directed to be tried by the Special Tribunal on October 6 1949
The accused were convicted in September 1950 and their conviction on some of the charges was upheld by the High Court in appeal in April 1951
The accused then appealed to this Court and also applied under article 32 of the Constitution for quashing the orders of conviction and sentence on the ground that the Special Tribunal Regulation became void on January 26 1950 as its provisions contravened articles 14 and 21 of the Constitution which came into force on that date and the continuation of the trial and conviction of the accused after that date was illegal
It is true that the final decision in the case according to the majority view proceeded on the footing that the accused had substantially the benefit of a normal trial though there were deviations in certain particulars and so his conviction could not be set aside merely because the Constitution of India came into force before the termination of the trial
As we will presently point out the relevant facts in this case in regard to the deviation from the normal procedure are different from those in Syed Qasim Razvi s case 1 but that is another matter
What is important for our purpose is the view expressed by this Court that the regulation issued by the Military Governor of Hyderabad State could not be impeached and so the Special Tribunal must be deemed to have taken cognisance of 1 14 106 the case quite properly and its proceedings up to the date of the coming in of the Constitution would also have to be regarded as valid
Dealing with this point Mukherjea J who delivered the judgment of the Court quoted with approval the observations made in Lachmandas Kewalram Ahuja vs The State of Bombay1 that as the Act was valid in its entirety before the date of the Constitution that part of the proceedings before the Special Judge which up to that date had been regulated by the special procedure cannot be questioned 
Unfortunately this aspect of the matter was not properly placed before the Full Bench of the Punjab High Court in the case of Ram Singh 2
If the learned judges had proceeded to deal with the question referred to them on the basis that the initial submission of the case to the Court of Session under section 371 of the Act was valid they would not have come to the conclusion that the sessions procedure was inadmissible or inapplicable to the continuation of the case after Ludhiana had ceased to be a dangerously disturbed area
That is why we think that the view taken by the Full Bench is erroneous
The position then is that as from October 1 1950 the three cases against the appellant should have been tried according to the warrant procedure
It is clear that at the stage where the trial stood on the material date the whole of the prosecution evidence had not been led and so there was no difficulty in framing charges against the appellant in the respective cases and thereafter continuing the trial accord ing to the warrant procedure
Having regard to the nature of the charges framed and the character and volume of evidence led it is difficult to resist the appellant s argument that the failure to frame charges has led to prejudice and it is not at all easy to accept the respondent s contention that the double opportunity to cross examine the prosecution witnesses which is available to an accused person under the warrant procedure is not a matter of substantive and valuable benefit to him
The denial of this opportunity must 1   731 2 AIR 1950 East Punjab 25
107 in the circumstances of the present cases be held to have caused prejudice to him
We must accordingly hold that the continuation of the trial of the three cases against the appellant according to the summons procedure subsequent to October 1 1950 has vitiated the trial and has rendered the final orders of conviction and sentence invalid
We must accordingly set aside the orders of conviction and sentence passed against the appellant in all the three cases
That takes us to the question as to the final order which should be passed in the present appeals
The offences with which the appellant stands charged are of a very serious nature and though it is true that he has had to undergo the ordeal of a trial and has suffered rigorous imprisonment for some time that would not justify his prayer that we should not order his retrial
In our opinion having regard to the gravity of the offences charged against the appellant the ends of justice require that we should direct that he should be tried for the said offences de novo according to law
We also direct that the proceedings to be taken against the appellant hereafter should be commenced without delay and should be disposed of as expeditiously as possible
Appeal allowed
Retrial ordered


Summary:
In the Application under Article 32 of the Constitution by 55 persons claiming the benefit of the scheme of pension for Freedom Fighters the petitioners contended that they had joined the Arya Samaj movement in the late 1930s within the erstwhile Nizam s State of Hyderabad and were convicted under different provisions of the criminal law and sentenced to various terms of imprisonment that the Arya Samaj move ment had been equated with the freedom struggle and the benefit of the pension scheme was admissible to those who had participated in the movement
The respondents while not disputing the assertion of the petitioners that the Union of India has accepted the Arya Samaj movement to be a part of the freedom struggle has disputed the entitlement of pension in the case of most of the petitioners
Allowing the petition this Court HELD 1
Freedom Fighters  Pension Scheme of 1972 which was renamed as Swatantrata Sainik Samman Pension Scheme 1980 indicates A person who has suffered a minimum im prisonment for six months in the mainland jails before independence in the struggle for independence is eligible to be admitted to the benefits of the pension
 Each of the petitioners had been convicted and was ordered to suffer imprisonment of more than six months
While they were under going sentence without their praying for any emission a general amnesty was declared by the then Nizam on his birth day and the sentence was reduced and the petitioners were set free
118 E FD 2
In the facts of the case it would be appropriate to hold that each of the petitioners satisfied the condition for earning the benefit of pension and the fact that while undergoing sentence which was for a period beyond 117 six months remission had been granted and they were let off earlier would not take away their right to earn pension
118F Duli Chand  Ors
vs Union of India  Ors
WPNo
119089 dated July 16 1991 by the Supreme Court of India followed