ases Nos 20 and 21 of 1950
Appeals under article 1321of the Constitution of India from the judgment and order dated the 19th May 1950 of the High Court of Judicature at Bombay Dixit and Shah JJ in Confirmation Case No 4 of 1950 and Criminal Appeals Nos 190 and 199 of 1950 arising out of judgment dated the 13th March 1950 of the Court of the Special Judge at Ahmedabad in Special Cases Nos 2 and 3 of 1949
NC Chatterjee and Ram Lal Anand Hardyal Hardy and SL Chibber with them for the appellants
712 MC Setalvad Attorney General for India G N Joshi with him for the respondent
AA Peerbhoy and JB Dadachanji lot the Intervener
May 20
The judgment of Mehr Chand Mahajan Mukherjea Das and Chandrasekhara Aiyar JJ
was deliv ered by Das J Patanjali Sastri delivered a separate dissenting judgment
PATANJALI SASTRI CJ
I regret I am unable to a gree with the reasoning and conclusion of my learned brother Das J whose judgment I have had the advantage of reading
The appellants were convicted and sentenced to death and varying terms of imprisonment by the Special Judge Ahmeda bad on charges of murder and other offences under the Indian Penal Code the Arms Act and the Bombay Police Act
The Special Judge was appointed by a notification issued under the Bombay Security Measures Act 1947 hereinafter referred to as the impugned Act and on August 6 1949 the State Government in exercise of the powers conferred by section 12 of the impugned Act directed the Special Judge to try the case of the appellants who were implicated in what was known as the Central Bank Robbery Case
Charges were framed on January 13 1950 without any preliminary enquiry and committal by a Magistrate which had been dis pensed with by the impugned Act and seventeen witnesses for the prosecution were examined before January 26 1950 when the Constitution came into force
The proceedings continued and after the examination of sixty witnesses in all ended in the conviction of the appellants on March 13 1950
Separate appeals were preferred by the present appel lants to the High Court which however confirmed the con viction and sentence in each case
An objection that the trial was illegal as the impugned Act was void under article 13 1 of the Constitution read with article 14 was over ruled on the ground that 713 those provisions had no retrospective operation and did not affect proceedings already started in the Court of the Special Judge
the learned Judges followed the decision of a Special Bench of their own Court in In re Keshav Madbar Menon1 which has since been affirmed by this Court in  It is urged on behalf of the appellants that the deci sion relied on by the High Court is distinguishable and that the present case is governed by the decision of this Court in The State of West Bengal vs Anwar Ali Sarkar2 to the effect that section 5 of the Bengal Act which is in identi cal terms with section 12 of the impugned Act is discrimi natory and void in so far a any rate as it empowers the State Government to direc cases to be tried by a Special Court under a special procedure
Accordingly it was claimed that the Special Judge had no jurisdiction to try the appellant applying the special procedure prescribed by the impugned Act
Granting however that section 12 of the impUgned Act must in view of the decision in Anwar Ali Sarkar  case 2 be held to be discriminatory and void in so far as it empow ers the State Government to refer individual cases to a Special Judge for trial it does no seem to me to follow that the trial of the appellants which had validly started before the Special Judge who had been duly empowered to try the case is vitiated by reason of the Constitution subse quently coming into force
It is to be noted that the West Bengal case2 was argued on the basis that article 12 of the Constitution was applicable to the proceeding from their inception although the notification directing the trial of some of the persons accused in that case was issued on the day before the commencement of the Constitution
The posi tion here is different The appellant s case was sent to the Special Judge for trial by notification dated 6th August 1949 and the Judge took cognisance of it framed the charges and proceeded with the trial to a considerable extend before the commencement of the Constitution on 26th 1 1950 52 Born
LR 540
2 5952 SCR 284
714 January 1950
There could be no question therefore of the appellants  fundamental right under article 14 being in fringed up to that point as it has been held by this Court in Keshavan Madhava Menon s case1 that the provisions of the Constitution relating to fundamental rights have no retrospective operation and do not affect a criminal prose cution commenced before the Constitution came into force
On and after 26th January 1950 the appellants no doubt had the right to the equal protection of the law but as has been repeatedly pointed out that right only meant that the State including the executive and the legis lature should apply the same law substantive and procedur al to all persons alike in the same situation without discrimination
It is said that after the commencement of the Constitution persons who commit the same offences with which the appellants stood charged would according to Anwar All Sarkar s case 2 not be liable to be tried by the Special Judge under the special procedure and if so the trial of the appellants too could not be continued by the Special Judge under such procedure after 26th January 1950 because such of the departures from the normal procedure of trial under the Criminal Procedure Code as were applied to the appellants during the rest of their trial being disad vantageous to them in some respects involved discrimination against them
It is therefore claimed that the continued application of such discriminatory procedure after the Constitution came into force rendered the trial and the resulting conviction illegal
I am unable to agree
In the first place as already pointed out equal protection of the laws postulates persons in the same situation and in the same circumstances claiming that the same law should be applied to them
Can it be said that the appellants whose trial by the Special Judge had been lawfully com menced and was pending at the commencement of the Constitu tion were in the same situation with persons who committed the same offences after the Constitution came into 1 2  715 force  It seems to me that the situation and circumstances are different in the two cases and no complaint of dis criminatory treatment by reason only of the trial having been continued under the special procedure can be sustained even assuming that the ordinary procedure under the Crimi nal Procedure Code became applicable to the appellants on and after 26th January 1950
Such assumption however seems to be open to ques tion
Section 1 sub section 2 of the Criminal Procedure Code enacts that Nothing herein contained shall affect   any special jurisdiction or power con ferred or any special form of procedure prescribed by any other law for the time being in force  
The juris diction conferred on the Special Judge by the impugned Act which as pointed out already was perfectly valid and fully operative down to the 26th January 1950 thus remained unaffected and application to the appellants of the ordinary procedure prescribed by the Code was excluded
It cannot therefore be said that on the 26th January 1950
the appellants were in a position to claim that they were enti tled to be tried under the ordinary procedure like those who committed the same offences after that date or who having committed them before such date had not been direct ed to be tried by the Special Judge
It was said that sec tion 1 2 of the Criminal Procedure  Code pre supposes a valid law conferring a special juris diction or prescribing a special form of procedure and inasmuch as such parts of the special procedure as could still be applied to trials continued after the commencement of the Constitution are void under article 131 read with article 14 section 12 of the Code could not stand in the way of the appellants being tried under the ordinary procedure
This argument seems to me to beg the question
It assumes that the special procedure is discriminatory and void to the extent to which it could have been applied to the trial of the appellants after 26th January 1950
But the assumption would not be valid unless the appellants could be tried 716 under the normal procedure after 26th January 1950 in which case alone they could say Why not try us under the Code why discriminate But having regard to section 1 2 of the Code the normal procedure would become applica ble only if the special procedure is excluded as being discriminatory and void
The argument thus proceeds in a circle
Again it is difficult to see on what principle the jurisdiction of the Special Judge validly created and exercised over the appellants  case could cease to continue on and after 26th January 1950
According to the appel lants  contention
the special procedure prescribed by the impugned Act became discriminatory and void after 26th Janu ary 1950 and therefore inapplicable to what remained of their trial
But could this circumstance affect the compe tence of the Special Judge to try their case of which he had validly taken cognisance  In Keshoram Poddar vs Nundo Lal Mullick1 the Judicial Committee of the Privy Council held that the cessation of the jurisdiction of a Rent Control Tribunal after 31st March 1924 over properties beyond a certain rental value did not affect its power to deal with a case after such cessation if the case was within its juris diction when it was filed and related to a period prior to such cessation
Their Lordships observed The application of the Act is when the parties begin to move under it
This was done in the present case before March 1924
The rest is merely the working out of the application
The position here seems to me to be closely analogous
The Special Judge was competent to try the appellants  case when the trial commenced before 26th January 1950 and the impugned Act was validly applied to the case
The rest was merely working out the application of the impugned Act
I find it diffi cult to see why the competency of the Special Judge to try the case should cease after 26th January 1950 any more than that of the Rent Control Tribunal to deal with a pend ing matter after 31st March 1924 when its jurisdiction was restricted
1 1927 54
IA152
717 If then the jurisdiction of the Special Judge to continue the trial of the appellants remained unaffected by the advent of the Constitution it would be impracticable for the Judge to switch the pending trials to a different procedure from 26th January 1950 so as to give effect to the equal protection claims of under trial prisoners
The impugned Act for instance enacts that Notwithstanding anything contained in the Code the trial of offences before a Special Judge shall not be by jury or with the aid of assessors section 20
The trials having been held so far without a jury or assessors as the case may be
it would obviously be impossible in such cases to continue them after 26th January 1950 with a jury or with the aid of asses sors where such trials are required to be so conducted under the ordinary procedure
Again the impugned Act provides that no case shall be transferred from any Special Judge a necessary consequence of the exclusive jurisdiction of the Special Judge and the special mode of proceeding prescribed for him
If a right of transfer under section 526 of the Code were to be recognised as accruing after 26th January 1950 to persons undergoing trial before the Spe cial Judge the scheme of trial by Special Courts may well break down
The alternative courses open to the Court would therefore seem to be either to hold that article 131 read with article 14 does not affect pending trials even in respect of procedural matters as it has been held not to affect such trials in respect of substantive rights and liabilities accrued before the date of the Constitution in Keshavan Madhava Menon s case1 or to go back on that decision and give those provisions of the Constitution retrospective effect
I am clearly of opinion that the principle of the above said decision must rule the present case
That principle has been stated thus Article 131 cannot be read as obliterating the entire operation of the inconsistent laws or to wipe them out altogether from the statute book for to do so will be to give them retrospec tive effect which we have said they do not possess
Such laws exist for all past transactions and for enforcing all 1  718 rights and liabilities accrued before the date of the Con stitution Italics mine
Indeed the last few words are apt to cover the present case though as a party to that decision I am sensible that we did not have in mind a case precisely like the one now before us
But it is well to remember that over fine distinctions sometimes lead to unsuspected traps
In the foregoing discussion I have assumed that such departures from the normal procedure as were still applica ble to what remained of the appellants  trial after the 26th January 1950 were so materially prejudicial to them as to amount to a denial of the equal protection of the laws within the meaning of article 14 of the Constitution
I am however by no means satisfied that that is the position
One of these deviations relates to the recording of evi dence 1 he SpeCial Judge is empowered to record only a memorandum of the substance of the evidence of each witness examined whereas the Criminal Procedure Code requires the evidence to be recorded in full
Another relates to the summoning of witnesses for the defence the Special Judge being given a discretion to refuse to summon a witness  if satisfied after examination of the accused that the evidence of such witness will not be material section 13 while under section 2571of the Code the Magistrate has the discretion to refuse to summon witnesses if he considers that the application for the issue of process for compelling the attendance of any witness is made for the purpose of vexa tion or delay or for defeating the ends of justice
And lastly the impugned Act provides that no court shall have jurisdiction to transfer any case from any Special Judge section 18 3 whereas transfers under section 526 of the Code are allowed on certain specified grounds
The more important departures from the procedure under the Code such as dispensation of preliminary enquiry and committal and the elimination of jury and assessors had already been applied and validly applied to the trial of the appellants before the Constitution came into force
and there can be no ques tion of such departures vitiating the trial
I am unable to regard the 719 procedural variations in the recording of evidence and the summoning of witnesses as so serious as to amount to a denial of the equal protection of the laws within the mean ing of article 14
Even if the appellants were to be tried under the normal procedure of the Code after 26th January 1950 the omission to record the evidence in full and the refusal to summon a witness in the circumstances mentioned in section 13 may well be regarded as mere irregularities curable under section 537 of the Criminal Procedure Code
As regards transfer it does not as already pointed out fit in with the scheme of trial before a Special Judge and unless any system of trials by Special Courts is to be condemned as violative of article 14 the decision of this Court in Kathi Raning Rawat vs The State of Saurashtra1 shows that it can be validly instituted in appropriate circumstances a prohibition of transfer cannot be regarded as falling within the inhibition of article 14
I have emphasised elsewhere and I do so again that in applying the dangerously wide and vague language of the equality clause to the concrete facts of life a doctrinaire approach should be avoided
In all the circumstances of this case I do not feel impelled to set aside the trial and conviction of the appel lants and I accordingly dismiss the appeals
DAs J
These two appeals are from the judgment of a Division Bench of the Bombay High Court Dixit and Shah JJ dated May 19 1950 dismissing the appeals preferred by the appellants against the order made by Shri MS Patti on March 13 1950 as the Special Judge appointed under the Bombay Public Security Measures Act 1947 whereby he con victed and sentenced them to death and to different terms of imprisonment under the different charges
The prosecution case is shortly as follows On the morning of May 26 1949 between the hours of 10 30 am and 11 am in the city of Ahmedabad the two appellants with another companion after injuring by gunshot the driver and a peon of the Central 1  720 Bank of India Ltd forcibly removed motor van No
BY 4388 belonging to the bank in which a large sum of money was being carried from its head office at Gandhi Road to its branch office at Maskati
After abandoning the motor van at a distance of threefourths of a mile the three gunmen forcibly took possession of the bicycles of some persons who were riding the same and continued their escape
In course of their flight they fired and injured several people
Eventually however the two appellants were arrested by the police but their companion made good his escape
The driver and the peon of the bank who had been injured succumbed to their injuries one dying on the spot and the other in the hospital on the next day
After investigation the Ahmedabad Police on July 19 1949 submitted to the City Magistrate Ahmedabad two charge sheets Nos 183 and 188 A against the two appellants and the then unknown absconder in respect of several of fences committed in course of the transaction that took place on May 26 1949
The charge sheet No 183 was in respect of offences under sections 394 397 302 307 read with section 84 of the Indian Penal Code section 19 e of the Arms Act and section 68 1 of the Bombay District Police Act
The charge sheet No 183 A was in respect of offences punishable under sections 307 392 read with sec tion 84 of the Indian Penal Code section 19 e of the Arms Act and section 68 1 of the Bombay District Police Act
In each of these charge sheets there was appended a note to the effect that the District Superintendent of Police Ahmedabad City had requested the District Magistrate
Ahmedabad to move the Government of Bombayor the constitu tion of a Special Court to hear the cases and that the said charge sheets might be transferred to the Special Court as and when one was so constituted
In view of this note the City Magistrate did not hold any enquiry but only re manded the appellants
By a Notification dated August 6 1949 the Government of Bombay exercising its powers under section 10 ofthe Bombay Public Security Measures Act 1947 721 constituted a Special Court of criminal Jurisdiction for the Ahmedabad District and under section 11 of that Act appoint ed Shri MS Patil District and Sessions Judge Ahmedabad as a Special Judge to preside over the Special Court
By another Notification made on the same date the Government of Bombay in exercise of powers conferred by section 12 the Act directed the Special Judge to try two particular cases namely the Postal Van dacoity case in which there were 9 accused and the Central Bank robbery with murder case in which the two appellants before us were the accused under the two charge sheets
In view of the above Notification the City Magistrate Ahmedabad transferred the two cases against the appellants to the Court of the Special Judge and they came to be numbered as cases Nos 2 and 3 respectively of 1949
On December 31 1949 the Government of Bombay directed that the trial of the appellants should be held by the Special Judge in the Ahmedabad Central Prison
There was no order of committal by any Committing Magistrate nor was there any preliminary enquiry by the Special Judge
On January 13 1950 the Special Judge consolidated the two cases against the appellants with a view to holding a joint trial
On the same day he framed five several charges namely four under different sections of the Indian Penal Code and one under section 19 e of the Indian Arms Act and section 68 1of the Bombay District Police Act
On January 19 1950 the first prosecution witness was examined and up to January 25 1950 seventeen prosecution witnesses were examined
The Constitution came into operation on January 26 1930
The hearing proceeded thereafter and the deposi tion of the last witness was recorded on February 9 1950
Altogether sixty two witnesses were examined
The two appellants were examined under section 342 of the Code of Criminal Procedure on February 10 1950
One handwriting expert was examined as a Court witness on February 13 1950 and arguments for the prosecution commenced on the following day
After the conclusion of the 722 arguments for the defence on February 23 1950 the Special Judge delivered his judgment on March 13 1950
According to his findings both the appellants had committed eleven different offences punishable under several penal provisions of law as specified by him and he convicted both the appel lants of the said eleven offences and sentenced both of them to death under section 30234 Indian Penal Code and to transportation for life under section 30734 Indian Penal Code and to various terms of imprisonment under various other sections of the Indian Penal Code Arms Act and Bombay District Police Act
The capital sentences were of course subject to the confirmation by the High Court
Both the appellants appealed to the Bombay High Court
The appeals along with the reference for the confirma tion of the sentences of death were heard together by Dixit and Shah JJ
who by their judgments dated May 19 1950 dismissed the appeals and confirmed the sentences of death
The appellants applied to the High Court for certificates under articles 132 1 and 134 1 c of the Constitution to enable them to appeal to this Court
The High Court Bhagwati and Dixit JJ however granted the appellants a certificate only under article 132 1 but declined to issue any under article 134 1 c
The appellants thereupon filed the present appeals pursuant to the certificate under article 132 1
A petition was filed before us under arti cle 132 3 for leave to urge as an additional ground that the trial was vitiated by reason of misjoinder of charges
No such ground was actually advanced before the High Court and as this Court did not think fit to permit the appellants to raise a new point at this stage it disallowed that peti tion
Accordingly these appeals must be limited to attack ing the judgment of the High Court on the ground that a substantial question of law as to the interpretation of the Constitution has been wrongly decided
The only substantial question of law as to the interpre tation of the Constitution urged before us is that 723 the Bombay Public Safety Measures Act 1947 or at any rate that part of section 12 of that Act which authorises the State government to direct specific cases to be tried by a Special Judge appointed under that Act offends against the equal protection of law guaranteed by article 14 of the Constitution and is as such void under article 13 on the principle laid down by this Court in the cases of The State of West Bengal vs Anwar Ali Sarkar1 and Kathi Raning Rawat vs The State of Saurashtra2
In order to appreciate the point in issue it is necessary to consider in some detail the provisions of the impugned Act
The Act came into force on March 23 1947
It was then instituted as An Act to consolidate and amend the law relating to public safety maintenance of public order and the preservation of peace and tranquillity in the Province of Bombay
The preamble recited the expediency of consoli dating and amending the law relating to those several mat ters
By section 9 3 the Act was to remain in force for a period of three years
The Act was amended by Bombay Act I of 1950 and amongst other things the words security of the State maintenance of public order and maintenance of supplies and services essential to the community in the State of Bombay were substituted for the words public safety maintenance of public order and the preservation of peace and tranquillity in the Province of Bombay occurring in the long title and preamble of the Act
The word six was substituted for the word three in section 23
The remaining sections of the Act are grouped under several heads
Thus sections 3 A1 to 5B are grouped under the heading Restrictions of movements etc
 A contravention of an order made under some of these sections is made an offence punishable as mentioned therein
The subject of collective fines is dealt with under that heading in section 6 Control of camps etc
and uniforms are covered by sections 7 and 8 each of which makes a contra vention 1  2  94 724 of any order made under it an offence
Section 9 prescribes whipping as a punishment for certain offences under certain Acts in addition to any other punishment to which the of fender may be liable under those Acts
Section 9A is set down under the heading Control of Publications etc and section 9B under the heading Control of Commodities etc
 Each of those sections makes a contravention of any order made thereunder an offence punishable as provided therein
Sections 10 to 20 which are collected under the heading Special Courts are material for the purposes of the point in issue before us and will have to be carefully noted
The rest of the sections are set out under the headings Miscel laneous and Amendments to Acts
Turning to the group of sections under the heading Special Courts it will be noticed that section 10 like section 3 of the West Bengal Special Courts Act
1950 and section 9 of the Saurashtra State Public Safety Measures Ordinance 1948 authorises the government by notification in the Official Gazette to constitute Special
Courts of criminal jurisdiction for such  area as may be specified in the notification
Section 11 which corresponds to section 4 of the West Bengal Act and section 10 of the Saurashtra Ordinance empowers the government to appoint as a Special Judge to preside over a Special Court any person possessing the requisite qualifications mentioned therein
Section 12 is expressed in precisely the same terms in which section 51of the West Bengal Act and section 11 of the Saurashtra Ordinance are  expressed namely A Special Judge shall try such offences or class of offences or such cases or class of cases as the Provincial Government may by general or special order in writing direct
 It will be noticed that the offences mentioned in the above section are not limited to offences created by this Act only but also cover offences under any other law eg the Indian Penal Code Section 13 runs thus 725 13
1 A Special Judge may take cognizance of of fences without the accused being committed to his Court for trial
2 A Special Judge shall ordinarily record a memoran dum only of the substance of the evidence of each witness examined may refuse to summon any witness if satisfied after examination of the accused that the evidence of such witness will not be material and shall not be bound to adjourn any trial for any purpose unless such adjournment is in his opinion necessary in the interests of justice
3 In matters not coming within the scope of sub sections 1 and 2 the provisions of the Code in so far as they are not inconsistent with the provisions of sections 10 to 20 shall apply to the proceedings of a Special Judge and for the purposes of the said provisions the Court of the Special Judge shall be deemed to be a Court of Session Under section 14 the Special Judge may in his discretion direct the evidence of a person who is not in a position to attend the Court to be recorded on commission
Enhanced punishments are provided for certain offences by section 15 as follows Notwithstanding anything contained in the Indian Penal Code whoever commits an offence of attempt to murder may in lieu of any punishment to which he is liable under the said Indian Penal Code be punishable with death and whoever commits an offence of voluntarily causing hurt by stabbing may
in lieu of any punishment to which he is liable under the said Indian Penal Code be punishable with death or transportation for life
 Section 16 authorises the Special Judge to pass any sentence authorised by law and section 17 prescribes a special rule of procedure for recovery of fines
Section 18 gives a right of appeal to a person convicted on a trial held by a Special Judge within a period of fifteen days from the date of sentence and also empowers the High Court to call for the records of the proceedings of any 726 case tried by a Special Judge and in respect of such case exercise any of the powers conferred on a Court of appeal by sections 423 426 and 428 of the Code
Sub section 3 of section 18 runs thus No Court shall have jurisdiction to transfer any case from any Special Judge or to make any order under section 491 of the Code in respect of any person triable by a Spe cial Judge or save as herein otherwise provided have jurisdiction of any kind in respect of proceedings of any Special Judge Thus the right to apply for transfer of the case and the right to apply for revision are denied to an accused who is tried by a Special Judge
Ordinary law is by section 19 made applicable in so far as it is not inconsistent with the provisions of sections 10 to 20
Section 20 provides as follows  Notwithstanding anything contained in the Code the trial of offences before a Special Judge shall not be by jury or with the aid of assessors
 Thus besides providing for enhanced punishment and whipping the Act eliminates the committal proceedings section 13 1 permits the Special Judge to record only a memorandum of the evidence confers on him a larger power to refuse to summon a defence witness than what is conferred on a Court by section 2571 of the Code of Criminal Proce dure and also deprives the accused of his right to apply for a transfer or for revision
That these departures from the ordinary law cause prejudice to persons subjected to the procedure prescribed by the Act cannot for a moment be denied
This Court has by its decisions in the State of West Bengal vs Artwar Ali Sarkar supra and in Kathi Raning Rawat v The State of Saurashtra supra
recognised that article 14 condemns discrimination not only by a sub stantive law but also by a law of procedure and that the procedure prescribed by the corresponding provisions in the West Bengal Special Courts Act and the Saurashtra Ordinance which introduced similar departures from the ordinary law of procedure constituted a discrimination 727 against persons tried by the Special Judge according to procedure prescribed by those pieces of legislation and finally that in any event section 5 1 of the West Bengal Act and section 11 of the Saurashtra Ordinance both of which corresponded to section 12 of the Bombay Public Secu rity Measures Act in so far as they authorised the govern ment to direct specific and particular cases to be tried by the Special Judge was unconstitutional and void
In view of the departures from the ordinary law brought about by the Bombay Public Safety Measures Act 1947 which are noted above it cannot but be held on a parity of reason ing that at any rate section 12 of the Act in so far as it authorises the Government to direct particular cases to be tried by a Special Judge is also unconstitutional
Learned Attorney General appearing for the State of Bombay does not controvert the legal position as discussed above but he points out that the offences were committed in May 1949 that the Special Court was constituted and the Special Judge was appointed in August 1949 and these cases were directed to be tried by the Special Judge in August 1949 that the Special Judge actually framed charges against the appellants on January 13 1950 and that the depositions of seventeen witnesses had been taken before the Constitution came into force and when the Bombay Public Safety Measures Act 1947 was valid in its entirety
He contends on the authority of the decision of this Court in Keshavan Madhava Menon vs The State of Bombay1
that the Constitution has no retroactive operation and that it does not affect the rights acquired or the liabilities incurred under laws which before the advent of the Constitution were valid and quoting from the jud ment of the majority of the Bench in that case that such laws exist for all past transactions and for enforcing all rights and liabili ties accrued before the date of the Constitution he urges that the legal proceedings commenced before the Constitution came into 1  728 operation are in no way affected by it and may well be proceeded with
In Keshavan Madhava Menon s case the appellant was the Secretary of People s Publishing House Ltd of Bombay
In September 1949 he was alleged to have published a pamphlet which according to the Bombay Government authorities was a news sheet within the meaning of section 2 6 of the Indian Press Emergency Powers Act 1931
On December 9 1949 he was arrested and a prosecution was started against him in the Court of the Chief Presidency Magistrate at Bombay for having published the pamphlet without the author ity required by section 151 of the Act and for having thereby committed an offence punishable under section 18 of that Act
During the pendency of the proceedings the Con stitution of India came into force on January 26 1950
On March 3 1950 the petitioner filed a written statement submitting inter alia that the definition of news sheet as given in section 26 of that Act and sections 15 and 18 thereof were inconsistent with article 191a and as such void under article 13 of the Constitution
This was followed up by a petition filed in the High Court on March 7 1950 under article 228 of the Constitution
The Bombay High Court considered it unnecessary to deal with the ques tion whether sections 15 and 18 were inconsistent with article 191a but held that Assuming that they were inconsistent the proceedings commenced under section 18 before the commencement of the Constitution could neverthe less be proceeded with
The High Court took the view that the word void was used in article 131 in the sense of repealed and that consequently it attracted section 6 of the General Clauses Act which by article 367 was made ap plicable for the interpretation of the Constitution
The High Court having dismissed the applicant the appellant came up on appeal before this Court after having obtained a certificate granted by the High Court under  article 132 1 of the Constitution
the majority of this Court held that the Constitution and no retrospective effect but was wholly prospective 729 in its operation and as the existing laws in so far as they were inconsistent with the fundamental rights were rendered void only to the extent of their inconsistency they were not void for all purposes but were void only to the extent they came into conflict with the fundamental rights
In other words the majority of this Court held that while on and after the commencement of the Constitution no existing law could by reason of article 13 1 be permitted to stand in the way of the exercise of any of the fundamental rights that article could not be read as wiping out the inconsistent law altogether from the statute book and as obliterating its entire operation on past transactions for to do so would be to give it retrospective effect which it did not possess
Such law it was held existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution
To the same effect were the observations of Mahajan J who delivered a separate but concurrent judgment namely that a provision that with effect from a particular date an existing law would be void to the extent of the repugnancy had no retro spective operation and could not affect pending prosecutions or actions taken under such law and there was in such a situation no necessity for introducing a saving clause and that it did not need the aid of a legislative provision of the nature contained in the Interpretation Act or the Gener al Clauses Act
According to him not being retrospective in its operation the Constitution could not therefore in any way affect prosecutions started for punishing offences that were complete under the law in force at the time they were committed
It will be noticed that in that case the prose cution was started according to the ordinary law of proce dure
The only question there was whether a criminal pro ceeding instituted for a contravention of the provisions of the Indian Press Emergency Powers Act which amounted to a completed offence before the date of the Constitution could be continued after the Constitution came into force where no change in procedure was involved
The result of that deci sion iS that although 730 the acts which before the Constitution constituted an of fence under that Act would not if done after the date of the Constitution amount to an offence nevertheless as the Constitution had no retrospective operation it did not obliterate the offence completed before the date of the Constitution and the offender could therefore be proceeded against after the Constitution came into force
It was in this sense that it was stated in Keshavan Madhava Menon s case that the law existed for the past transactions and for enforcing all rights acquired or liabilities incurred before the date of the Constitution
If the law did not exist the offence created by it would ipso facto disappear and no question of punishing the non existing offence could arise
The observations made in that case related to the substan tive rights acquired or liabilities incurred under the Act before the Constitution came into force
Under what proce dure the rights and liabilities would be enforced did not come up for consideration in that case as the procedure adopted throughout was the same
namely the procedure prescribed by the Code of Criminal Procedure
The law of procedure regulates legal proceedings gener ally from its inception up to its termination and usually connotes a continuous process he Bombay Public Safety Measures Act 1947 by sections 10 to 70 under the heading Special Courts prescribes a special procedure for the trial by the Special Judge of such offences or class of offences or cases or class of cases as the government may by general or special order in writing direct
The offences or cases so directed to be tried by the Special Judge need not be or relate to the special offences created by the Act itself but may be or relate to any offence under any law eg Indian Penal Code
Arms Act and the Bombay District Police Act
It has been seen that the special procedure prescribed by the impugned Act constitutes a departure from the ordinary law of procedure and is in some important respects detrimental to the interest of the persons subjected to it and as such is discriminatory
The 731 discrimination does not end with the taking of cognizance of the case by the Special Judge without the case being commit ted to him but continues even in subsequent stages of the proceedings in that the person subjected to it cannot even at those subsequent stages have the benefit of having the evidence for or against him recorded in extenso may not get summons for all witnesses he wishes to examine in defence only on the ground that the Special Judge does not consider that such evidence will be material and cannot exercise his right to apply to a superior Court for transfer
of the case even though the Special Judge has exhibited gross bias against him or to apply for revision of any order made by the Special Judge
As the Act was valid in its entirety before the date of the Constitution that part of the pro ceeding before the Special Judge which up to that date had been regulated by this special procedure cannot be questioned however discriminatory it may have been but if the discriminatory procedure is continued after the date of the Constitution surely the accused person may legitimately ask Why am I to day being treated differently from other persons accused of similar offences in respect of proce dure It is stated in Maxwell s Interpretation of Statutes 9th Edn p 232 No person has a vested right in any course of proce dure
He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which he sues and if an Act of Parliament alters that mode of procedure he has no other right than to proceed according to the altered mode
 If in the absence of any special provision to the con trary no person has a vested right in procedure it must follow as a corollary that nobody has a vested liability in matters of procedure in the absence of any special provision to the contrary
If this is the position when the law of procedure is altered by statute why should the position be different when the Act prescribing the discriminatory proce dure becomes 732 void by reason of its repugnancy to the equal protection clause of the Constitution Although the substantive rights and liabilities acquired or accrued before the date of the Constitution remain enforceable as held in Keshavan Madhava Menon s case nobody can claim after that date that those rights or liabilities must be enforced under that particular procedure although it has since that date come into con flict with the fundamental right of equal protection of laws guaranteed by article 14
It is said in reply that in this case there is in law no discrimination which can be said to be within the mischief sought to be prevented by article 14
The appel lants are persons whose cases had been properly sent for trial to the Special Court before the Constitution came into force and therefore they cannot complain if the procedure prescribed by the Act is continued to be applied to their cases although such procedure cannot be applied to cases which had not been referred to the Special Court up to that date for the appellants cannot claim to be similarly situ ated with persons whose cases had not been directed to be tried by the Special Court before the date of the Constitu tion or who committed similar offences after that date
In the circumstances
the continued application of the proce dure laid down in the impugned Act to the cases of the appellants cannot
it is contended amount to discrimination in the eye of the law and is therefore not within the inhibition of the equal protection clause of the Constitu tion
Article 14 being thus out of the way the procedure laid down in the impugned Act continues to be valid in law as regards the persons whose  cases had been subjected to it before the advent of the Constitution I and so far as those persons are concerned there has been no change in the procedure and therefore their cases must continue to be regulated by that procedure
We are unable to accept this argument as sound
It is now well established that while article 14 forbids class legislation it does not forbid reasonable Classification for the purposes of legis lation
In 733 order however to pass the test of permissible classifica tion two conditions must be fulfilled namely i that the classification must be founded on an intelligible dif ferentia which distinguishes persons or things that are grouped together from others who are left out of the group and ii that differentia must have a rational relation to the object sought to be achieved by the Act
What is necessary is that there must be a nexus between the basis of classification and the object of the Act
To take an exam ple Under section 11 of the Contract Act persons who have not attained majority cannot enter into a contract
The two categories are adults and minors
The basis of classifica tion is the age
That basis obviously has a relation to the capacity to enter into a contract
Therefore the section satisfies both the requirements of a permissible classifica tion
In the present case although the first part of section 12of the Bombay Act like section 5 1of the West Bengal Actor section 11 of the Saurashtra Ordinance may indicate and imply a process of classification the section in so far as it authorises the government to direct particu lar cases to be tried by the Special Court does not purport to proceed upon the basis of any classification at all
Further the supposed basis of the alleged classifica tion namely the fact of reference to the Special Court before the Constitution came into effect has no reasonable relation to the objects sought to be achieved by the Act
The avowed objects of the Act recited in the preamble are the expediency of consolidating and amending the law relat ing 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
If the consideration of the security of the State or the maintenance of public order requires the application of the special procedure there is no obvious reason why it should be applied to cases already referred and not to cases not yet referred at the date of the Constitution
The same consideration applies equally to both categories of cases
It is there fore clear that there is no nexus 734 which connects the basis on which the supposed classifica tion is founded with the objects of the Act for the object of the Act is wide enough to cover both categories of cases 
Therefore it is not a permissible classification
Indeed it is an instance of fanciful classification which has no rational basis at all
We see no particular reason why the special procedure should be applied to the appel lants  cases any more than it should be applied to cases not referred to the Special Court up to the 26th January 1950
No special or peculiar circumstances have been shown to exist which may make the appellants  cases specially suited to this special procedure
In the absence of a rational basis of classification as explained above there can be no justification after the advent of the Constitu tion for depriving the appellants of the right to move the Court for transfer or for revision or to obtain process for the attendance of defence witnesses or of having the evi dence of the witnesses recorded as in an ordinary trial which is available to other persons accused of similar offences and prosecuted according to the ordinary procedure laid down in the Code of Criminal Procedure
It is there fore clear that in this case the discrimination continued after the Constitution came into force and such continuation of the application of the discriminatory procedure to their cases after the date of the Constitution constituted a breach of their fundamental right guaranteed by article 14 and being inconsistent with the provisions of that article the special procedure became void under article 13 and as there is no vested right or liability in matters of proce dure the appellants are entitled to be tried according to the ordinary procedure after the date of the Constitution
Their complaint is not for something that had happened before 26th January 1950 but is for unconstitutional discrimination shown against them since that date
Their grievance their cause of action as it were is post consti tution and therefore must be scrutinised and examined in the light of their constitutional rights
So viewed there can be no doubt or 735 question that they have been discriminated against after the date of the Constitution in the matter of procedure
It has already been held in the West Bengal and the Saurashtra cases that discrimination can lie in procedure just as much as in a substantive law
Therefore the continuation of the trial after that date according to the discriminatory proce dure resulting in their conviction and sentence cannot be supported
Indeed in a sense the Special Judge s jurisdic tion came to an end for he was enjoined to proceed only according to the special procedure and that procedure having become void as stated above he could not proceed at all as a Judge of a Special Court constituted under the impugned Act
The learned Attorney General relied on the decision of the Privy Council in Keshoram Poddar vs Nundo Lal Mallick1
The Calcutta Rent Act 1920 enabled the land lord or tenant of premises in Calcutta to obtain from the Controller of Rents a certification of the standard rent of the premises and also gave a right to apply to the President of the Calcutta Improvement Tribunal for revision of the order of the Controller
The Act was originally to be in force for a period of three years which was subsequently extended until the end of March 1924 and finally the figure 1927 was substituted for 1924 with a proviso that after 31st March 1924 this Act shall cease to apply to any premises the rent of which exceeded Rs 250 a month
The appellant was let into possession on 1st June 1920 but the rent payable was not then fixed
He remained in possession until March 1923 and the question raised by the case was what rent ought to be paid for that period of occupation
Disputes having arisen the appellant applied to the Con troller and on 23rd October 1922 the Controller fixed the rent at Rs 4500 per month
On 25th November 1922 the appellant appealed to the President of the Improvement Tribunal to revise that decision
The revision application could not be taken up by the President until long after 31st March 1924 and when it was eventually 1 ILR  54 IA 152
736 posted before him on 3rd August 1924 he held that had no jurisdiction to determine the matter for the Act had ceased to apply to the premises
It will be observed that the application to the President was made long before 31st March 1924 and that the period for which the rent had to be determined was between June 1920 and March 1923
The Privy Council held that the application of the Act was when the parties began to move under it and that was done before March 1924 and that the President accordingly had jurisdiction to decide it
That decision appears to us to have no application to the facts of the present case for the problem before us does not relate to a period anterior to the Constitution when the Act was good and the Special Judge had authority to apply the special procedure
The point for decision now is whether the continuation of the procedure prescribed by the Act after the Constitution came into force operates to the prejudice of the appellants and as such offends against their newly acquired fundamental right of equal protection of law guaranteed by article 14
The Constitution has no retrospective operation to invali date that part of the proceedings that has already been gone through but the Constitution does not permit the special procedure to stand in the way of the exercise or enjoyment of post constitutional rights and must therefore strike down the discriminatory procedure if it is sought to be adopted after the Constitution came into operation
To that situation the decision of the Privy Council referred to above can have no application
For reasons Stated above the conviction of the appel lants on trial held by the Special Judge after the date of the Constitution according to the special procedure pre scribed by the impugned Act and the sentences passed on them cannot be supported and these appeals must therefore be allowed and the convictions and sentences must be set aside
The appellants are entitled after the Constitution not to be discriminated against in matters of procedure and are entitled to be tried according to law
We therefore 737 direct that they be tried for the offences alleged to have been committed by them according to law and in the meantime they be retained in custody as undertrial prisoners
Appeals allowed
Agent for the intervener Rajinder Narain


Summary:
The appellant a private limited company was assessed to income tax for the assessment years 1942 43 1943 44 and 1944 45 by three separate orders dated January 26 1944 February 12 1944 and February 15 1945 under section 233 of the Indian Income Tax Act on returns filed by it with statements of account
On March 28 1951 three notices under section 34 of the Act were issued calling upon it to submit fresh returns for the said assessment years
The appellant filed the returns but thereafter applied to the High Court under article 226 of the Constitution for writs restraining the Income tax Officer from initiating assessment proceedings on the basis of the said notices on the ground inter alia that he had no jurisdiction to issue the said notices
In his report to the Commissioner of Income tax for obtaining sanction to initiate the said proceedings the Income tax Officer had stated as follows   Profit of Rs 546002 on sale of shares and securities escaped assessment altogether
At the time of the original assessment the then I T O merely accepted the company s version that the sale of shares were casual transactions and were in the nature of mere change of investments
Now the results of the company s trading from year to year show that the company has really been systematically carrying out a trade in the sale of investments
As such the company had failed to disclose the true intention behind the sale of the shares as such section 341a may be attracted
The question for determination was whether in the circum stance the Income tax Officer was right in issuing notices on the assessee under section 341a of the Act
Held per section K Das K C Das Gupta and N R Ayyangar jj that before the Income tax Officer could issue a notice under  
341a of the Indian Income tax Act two conditions precedent must co exist namely that he must have reason to believe i that income profits or gains had been under assessed and 2 that such under assessment was due to non disclosure of material facts by the assessee
242 Although what facts would be necessary and material for the assessment in a particular case must depend on the facts of that case there could be no doubt that the burden of disclosing all the primary facts must invariably be on the assessee
The Explanation to section 341 made it clear that that burden could not be fully discharged by simply producing the account books and other documents but the assessee must also disclose such specific items or portions thereof as are relevant to the assessment
But once he has done so it is for the Income tax Officer to draw the proper inferences of fact and law therefrom and the assessee cannot further be called upon to do so for him
The Explanation does not enlarge the scope of the section so as to include  the disclosure  of such inferences
The question whether by the sale of shares the assessee in the instant case intended to change the form of investment or to make a business profit was one of an inferential fact and the failure to disclose such intention could not by itself amount to a failure or omission to disclose a material fact within the meaning of section 341a of the Act
Where however the Income tax Officer has prima facie reasonable grounds for believing that there has been a non disclosure of a primary material fact that by itself gives him the jurisdiction to issue a notice under section 34 of the Act and the adequacy or otherwise of the grounds of such belief is not open to investigation by the Court
It is for the assessee who wants to challenge such jurisdiction to establish that the Income tax Officer had no material for such belief
Since in the instant case there was no non disclosure of a primary material fact which the assessee was bound to disclose under section 341a of the Act the Income tax Officer had no jurisdiction to issue the notices in question
It is incorrect to say that the question of under assessment by reason of non disclosure of a material fact was relevant only for the purpose of applying either the longer or the shorter period of limitation prescribed by the section and not for jurisdiction and therefore not a proper matter for investigation under article 226 of the Constitution
The High Courts have ample powers under article 226 of the Constitution and are in duty bound thereunder to issue such appropriate orders or directions as are necessary in order to prevent persons from being subjected to lengthy proceedings and unnecessary harassments by an executive authority acting without jurisdiction
Alternative remedies such as are provided by the Income tax Act cannot always be a sufficient reason for refusing quick relief in a fit and proper case
Per Hidayatullah J The Explanation to section 341 of the Indian Income tax Act clearly indicates that the duty of the assessee thereunder does not end by merely producing evidence or disclosing the primary facts but also extends to the disclosure 243 of such other facts relating to status agency benami nature of the transaction the nature of the trading and the like which he knows but do not appear from the evidence and which may be necessary for interpreting the evidence
If the evidence produced hides nothing and discloses everything the assessee cannot be subjected to section 34 merely because the Income tax Officer misinterprets such evidence
But it is otherwise if the assessee raises a contention that is contrary to fact and requires the Income tax Officer to discover the truth for himself for that would be to suppress a material fact that would attract the section
Since in the present case an investment company dealing in stocks and shares not only knowingly suppressed that fact but contended otherwise there was non disclosure of a material fact necessary for its assessment and sufficient to attract section 341 a of the Act
Per Shah J
The expression  has reason to believe  in section 341a of the Indian Income tax Act does not mean a purely subjective satisfaction of the Income tax Officer but predicates the existence of reasons on which such belief has to be founded
That belief therefore cannot be founded on mere suspicion and must be based on evidence and any question as to the adequacy of such evidence is wholly immaterial at that stage
Whether all the material facts necessary for the assessment had or had not been fully and truly disclosed in a particular case has to be examined in the fight of the Explanation to section 341a
If there is disclosure of some facts but not all a tax payer cannot resist reassessment on the plea that such non disclosure was due to the negligence or inadvertence on the part of the Income tax Officer to scrutinise the materials before him
Where the existence of reasonable belief that there bad been under assessment due to non disclosure by the assessee which is a condition precedent to exercise of the power under section 341a is asserted by the assessing authority and the record prima facie supports its existence any enquiry as to whether the authority could reasonably hold the belief that the under assessment was due to non disclosure by the assessee of material facts necessary for the assessment must be barred