Meredith, J.These two connected applications u/s 491, Criminal P.C., have been preferred by two persons, Ram Pratap Mandal (in 791) and Mahabal Kuer (in 794) who have been convicted u/s 395, Penal Code, and sentenced to undergo five years rigorous imprisonment each by the Special Judge of Darbhanga appointed under the Special Criminal Courts Ordinance No. 2 of 1942. The petitioners were convicted at the same trial, and in each case we are asked to make an order for release upon the same grounds.

2. The offence for which the petitioners have been tried and convicted is said to have been committed on 2lst August 1942, that is to say, on the very day that the Governor of Bihar by Notification NO 90-C.C. declared the Special Criminal Courts Ordinance to be in force in the province. Ram Pratap Mandal was first sent up by the police to the Sub-divisional Officer, Madhubani, on 10th setember 1942, under Sections 395 and 435, Penal Code, and Section 19(f), Arms Act, but without any statement of the facts or evidence by the police. He was remanded to hajat until 25th September by an order over the initials "S.D.O." The petitioner Mahabal Kuer was similarly sent up in custody u/s 895, Penal Code, on 17th September, and was similarly remanded to hajat until the 25th. On 24th September all the accused sent up, including the two petitioners, were directed to be forwarded to the Sadar Jail, Darbhanga, for want of accommodation at Madhubani, and a further order was passed remanding them to hajat until 8th October. This order was also over the initials "S.D.O." Next day, the 25th, apparently by the same officer, an order was passed:

The Sub-Inspector prays for issue of warrant of arrest and process against the absconders. Produce accused on 9th October 1942. Issue returnable by 13th October 1942.

3. The same day a bail petition on behalf of one of the accused, Sundar Lal, was moved, but was rejected on the ground that the section of law involved was not bailable.

4. Then on 8th October this order was passed, again over the initials "S.D.O.":

Charge sheet received from S.I. Jainagar against Soni Lall Thakur and 6 others showing Gulab Jha and 10 others as absconders. Issue warrant of arrest and process against the absconders returnable by 31st October 1942. The S.I. prays for release of accused Jhakai Sahu, Sunder Sahu, Jagdeo, Anup, Dularchand, Pulkit, Jowach and Harkha for want of sufficient evidence. They are accordingly released from custody. The case involved is alleged u/s 395, Penal Code, which is triable by Special Judge. The record is submitted to the Special Judge u/s 12 of Ordinance of 1942 for favour of necessary action. The accused persons will be forwarded to Sadar, and are remanded to hajat as before till 22nd October 1942.

5. The next order in the order sheet is dated 26th October and reads:

Record received from the District Magistrate for trial. Fix 16th November 1942 for hearing. Summons to prosecution witnesses for the date fixed. Inform District Magistrate. Sd. A.K. Sahai, Special Judge.

6. It will here be convenient to set out certain dates in connexion with the ordinance. On 2nd February 1942, the ordinance was promulgated by the Governor-General for all India.

7. On 21st August 1942, as already stated, the Ordinance was declared by the Governor of Bihar to be in force in the province.

8. On 22nd August, in exercise of the powers conferred by section 4 of the Ordinance, the Governor of Bihar by Notification No. 392-C (p) appointed Special Judges for a number of areas including the district of Darbhanga. The particular Special Judge who tried the petitioners, Rai Saheb Anjani Kumar Sahai, was however appointed by a Supplementary Notification No. 457-C (P) on 3lst August.

9. On 22nd August also, by Notification No. 394-C (P) u/s 9 of the Ordinance the Governor of Bihar invested all First Class Magistrates of two years standing in the province with the powers of Special Magistrates.

10. On 22nd August also under Notification No. 395-C (p) u/s 10 of the Ordinance, the Governor of Bihar empowered all District Magistrates in the province to direct within their respective districts, by general or special order in writing, which offences or classes of offences or classes of cases should be tried by Special Magistrates, and issued a similar notification u/s 5 in respect of Special Judges.

11. On 31st August, the District Magistrate, Darbhanga, made an order directing, inter alia, that the Sub-divisional Officers of Samastipur and Madhubani would act as Special Magistrates under the Ordinance within their respective jurisdictions.

12. On 4th October, the District Magistrate, Darbhanga, made a formal order under Sections 5 and 10, specifying the various offences which were to be tried by Special Magistrates and Special Judges.

13. In the case of Sheo Baran Singh Vs. Emperor, a Full Bench of this Court has ruled that the Ordinance is not ultra vires. This decision is binding upon us, and the validity of the Ordinance has in fact not been challenged.

14. Reliance has, however, been placed upon another Full Bench decision of this Court in Banwari Gope and Others Vs. Emperor, to make a point on behalf of the petitioners. In this decision it was held that the Ordinance is not retrospective. It could not operate to take away from the subject vested rights which had come into existence before the Ordinance came into force. Where criminal proceedings had been initiated against any person before the Ordinance came into force, such person had thereby acquired vested rights, including for example the right of appeal in case of conviction. The promulgation of the Ordinance could not, the Full Bench held, affect such rights; and in such a ease the provisions of Section 26 of the Ordinance could not operate to bar interference by the High Court u/s 491, Criminal P.C. since, the Ordinance having no application at all to such a case, Section 26 itself could not apply to it. This Full Bench further held that the taking cognizance by a Magistrate of a case against any person marked the initiation of proceedings against that person, and consequently gave that person vested rights.

15. It is conceded both by Mr. Manuk and Mr. Mahabir Prasad, who have appeared for the petitioners respectively, that this ruling is not directly applicable, since the Ordinance was declared to be in force some time before cognizance had been taken, or indeed any steps had been taken, against the petitioners. It is, however, sought to apply the principle of the ruling by way of analogy.

16. The argument is this. No person could be tried under the Ordinance until Special Magistrates or Special Judges had been actually appointed and orders had been passed directing what cases they could try. Therefore, until those orders were passed the Ordinance was not in full operation, and that, it is said, should be regarded as the same thing as the Ordinance not being in force. The Special Judge was not empowered to try any cases in Darbhanga until 4th October. Therefore, so far as Darbhanga Special Judges are concerned, the Ordinance was not in force until 4th October. Cognizance had, however, been taken of the case against the petitioners prior to 4th October in the ordinary Courts. Therefore, the petitioners had acquired a vested right to be tried in the ordinary Courts by ordinary procedure, and the Special Judge had no jurisdiction to try them. The trial was in law no trial. Section 26 cannot apply to affect their rights. They are in unlawful detention, and this Court should release them.

17. The argument from analogy is always a dangerous one, and the danger is increased by the fact that it generally presents an appearance of plausibility. It is clear that the success of the argument depends upon the co-existence of three findings in favour of the petitioners, (1) that the Ordinance was not in force in Darbhanga until 4th October, (2) that prior to 4th October criminal proceedings were initiated against the petitioners giving them vested rights, and (8) that the proceedings initiated, were in the ordinary Courts, and not in the Special Courts. Should any one of these three points be decided against the petitioners, the contention put forward on their behalf must fail.

18. In my judgment, the first point must un-questionably be decided against the petitioners, and upon that finding the applications must fail.

(1) There is a wide difference between the coming into force of the Ordinance and its coming into operation. The Ordinance became the law on 2lst August when the Governor declared it to be in force in the Province. What happened subsequently was merely the setting up of the machinery for its operation, and could not affect the legal position. I think there is a wide difference between the expressions "coming into force" and "coming into operation." The reason for the rule of construction that a statute shall not be held to operate retrospectively unless the language is compelling in that regard, is that it shocks the conscience for a new law to affect the subject adversely in ; respect of something already over and done with. That reason does not apply in a case like the present. After a law has come into existence, whether or not the machinery for its operation has been set uponce that law is declared to be in force and the subjects of the Province are put upon notice of that fact by official publicationno one can have any just grievance if his acts and rights thereafter are to be determined in accordance with that law. Not only was the Ordinance declared to be in force on 21st August, but on the 22nd Special Courts were constituted. They were in existence before any steps at all were taken against the petitioners. It may be that they could not function. Nevertheless, the petitioners must be deemed to have known that these Courts existed, and that, in due course orders would be passed enabling them, to function. That was a natural consequence upon promulgation of the Ordinance in the Province.

19. To put the matter differently, at the time the proceedings were initiated, against the petitioners the ordinary Courts were not the only criminal Courts existing in the Province. The Special Courts were also in existence. Power had already been delegated to the District Magistrates to determine which cases should be tried by which Courts. In such circumstances, no person could acquire any vested right to be tried in any particular Court, or under the procedure applicable to one set of Courts in preference to that applicable to the other. Before any steps had been taken against the petitioners which could give rise to any rights the law of the land was that they were liable to be tried either in the ordinary Courts or in Special Courts as the District Magistrate might in his discretion decide. The law stood so, and the petitioners must be deemed to have known that it so stood. No change in the law took place at the moment when the District Magistrate passed orders regarding the trial of particular cases.

20. That being the position then whatever view be taken with regard to the date of initiation of proceedings, and whatever the nature of the Court in which the proceedings were actually initiated, the petitioners acquired no vested right of trial in the ordinary Courts. There is, therefore, no question of the Ordinance having taken such vested rights away. The proceedings were in fact perfectly regular. As the order-sheet shows, on 26th October the Special Judge received the record from the District Magistrate. Thereupon he took cognizance, as he was entitled to do u/s 6 of the Ordinance, and he tried the case as he was entitled to do under the general orders of the District Magistrate passed on 4th October.

21. Upon the view which I take, it becomes unnecessary to decide the other two questions to which I have referred. I do not, therefore, propose to deal with them on this occasion. I shall simply say (but without deciding the points) that as at present advised I should be inclined to answer both of them in favour of the petitioners.

22. Mr. Mahabir Prasad has made a subsidiary point. He argues that once cognizance had been taken in the Court of the Sub-divisional Officer it was not open to any other Court to take cognizance. The short answer is that this is just what ordinarily happens in the case of a sessions trial. Cognizance is originally taken by a Magistrate. After he has committed the case cognizance is again taken by the Court of Session, as the wording of Section 193(1) clearly indicates. If the Court of Session can take cognizance upon commitment under this section, there can be no bar to the Special Judge taking cognizance without the presence of the order of commitment, as Section 6 of the Ordinance expressly authorises him to do.

23. I am in agreement with my learned brother whose judgment I have had the advantage of seeing that both applications must be rejected.

Shearer, J.

24. Those applications in revision are on behalf of two persons who have been convicted of dacoity and have been sentenced to undergo rigorous imprisonment for five years each. They were tried by a Special Judge appointed under the Special Criminal Court Ordinance No. 2 of 1942. It is conceded that, if the Special Judge had jurisdiction to try them, no appeal lies against the convictions, nor is it open to this Court to intervene in revision; On the other hand, it is also conceded that, if the Special Judge had no jurisdiction to try them, they are being illegally detained and are entitled to be released and set at liberty. Under the. Ordinance, the Provincial Government was empowered to set up Special Courts and District Magistrates were empowered to direct which cases or classes of cases these Special Courts should try. In conducting such trials, the Special Courts were authorized and, indeed, required to follow a procedure other than that laid down in the Code of Criminal Procedure. It is well recognized as being contrary to sound principles of legislation to make that which was not a crime at the time it was done punishable. On the other hand, it is regarded as unobjectionable to alter the procedure under which an individual is to be tried after the commission by him of an offence and before the commencement of his trial, as, for instance, by making matter admissible in evidence against him which was not legal evidence at the time the offence was committed.

25. The Ordinance, it is true, did not create new offences, nor did it enhance the punishment which could be imposed for existing offences. That was done by another Ordinance (No. 3 of 1942) which received the assent of the Viceroy and Governor-General on the same day. It was, however, of a penal or quasi-penal character in that it deprived individuals, charged with the com-mission of an offence, of various rights which they possessed under the existing law. For instance, if the petitioners had been tried under the law as it stood prior to the coming into force of the Ordinance, they would have been entitled to a preliminary inquiry which would have, put them in a better position to make their defence in the Court of Session. They would further have been entitled to be tried with the aid of a jury, and, if convicted, would have had a right of appeal. A Special Bench of this Court in Banwari Gope and Others Vs. Emperor, took the view that, while the Ordinance purported merely to alter the procedure of the criminal Courts, and not the substantive penal law, it took away certain existing rights, and could not, therefore, be deemed to operate retrospectively unless it contained clear and unequivocal statements showing that such was the intention of the Legislature.

26. The learned Judges, who decided that case, were unable to find any such clear and unequivocal statements in the Ordinance, and, therefore, came to the conclusion that: it did not operate retrospectively, and that, any persons, against whom criminal proceedings had begun under the law as it stood prior to the coming into force of the Ordinance, were entitled to be tried by the existing Courts under the old procedure and could not be tried by the Special Courts under the new procedure. In their view, it was not material whether the offence had been committed before or after the Ordinance came into force. In Sheo Baran Singh Vs. Emperor, they pointed out that, even if an offence was committed prior to the coming into force of the Ordinance, the Special Courts had jurisdiction to try it if, before that date, cognizance of it had not been taken by the ordinary Courts. What was material was whether cognizance of the offence had been taken by the ordinary Courts before the Ordinance came into force. If and when cognizance was so taken, a right to be tried under the existing procedure accrued to the individuals concerned, and was not and could not be taken away subsequently when the Ordinance was declared by the Provincial Government to be in force in Bihar.

27. The dacoity, in respect of which the petitioners have been convicted, was committed on 2ist August 1942, on which date also a notification was issued by the Government of Bihar declaring that the Ordinance was in force in the province. One of the petitioners was arrested on 9th September 1942, and the other on I7th September 1942. They were immediately taken before the Sub-divisional Officer of Madhubani who, in each case, made an order remanding them to custody until 25th September 1942. On 24th September 1942, the Sub-divisional Magistrate made a further order that, as the Sub-Jail at Madhubans was over crowded, the petitioners and certain other persons, who had in the mean lime been arrested, should be sent to Laherisa Sarai and should be detained* in the hajat there until 8th October 1942. On 4th October 1942, the District Magistrate of Darbhanga made an order u/s 5 of the Ordinance, directing that certain offences, and, among them, dacoity, should be tried by the Special Judge. On 8th October 1942, when the petitioners were again produced in the Court of the Sub-divisional Magistrate, the Sub-divisional Magistrate recorded an order directing the record to be sent to the Special Judge. On receipt of the record, the Special Judge took cognizance of the offence u/s 6 of the Ordinance. Mr. Manuk, for the petitioners, has contended that the Ordinance did not come into force in the district of Darbhanga until 4th October 1942, when the District Magistrate made the order to which I have just referred. If the power delegated to the District Magistrate had been a power to declare that the Ordinance should come into force in his district on such date as he should notify, and if the order which he made on 4th October 1942, was an order of that kind, the submission made by Mr. Manuk, that the decision of the Full Bench to which I have already referred applies, would have been incontrovertible.

28. It is, however, perfectly clear that the power, which was delegated by the Provincial Government to the District Magistrate, was merely a power to declare u/s 5 of the Ordinance which offences or classes of offences or cases or classes of cases should be tried by the Special Judge. The power to bring the Ordinance into force was reserved by Section 1 of the Ordinance to the Provincial Government, and could not be delegated by it to any subordinate authority. Moreover, the Provincial Government issued a notification on 21st August 1942, declaring the Ordinance to be in force in the province, and, on the next day, appointed Special Judges and Special Magistrates under the Ordinance. Sub-section (1) of Section 5, General Clauses Act (10 of 1897) states:

Where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent of the Governor-General.

Sub-section (3) of the same section states:

Unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement.

Clause (iii) of Section 1 of the Ordinance states:

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

Section 14, General Clauses Act, states:

Where, by any Central Act or Regulation made after the commencement of this Act, any power is conferred, then unless a different intention appears, that power may be exercised from time to time as occasion requires.

29. In view of these provisions the Ordinance must, in law, be deemed to have come into operation throughout the whole of the province on 2lst August 1942, when the Government of Bihar issued its notification. That, for some reason or other, the District Magistrate of Darbhanga did not consider it necessary to exercise a power given to him under the Ordinance until 4th October. 1942, is wholly immaterial. An enactment may be in force in a particular local area and no action may be taken under it until long after it has come into operation or indeed may ever be taken under it at all. The distinction which Mr. Manuk sought to draw between an enactment which is in force and an enactment which is not in effective operation in some particular local area is a distinction unknown to the law. The main contention put forward on behalf of the petitioners, namely, that the Ordinance did not come into force in the district of Darbhanga until 4th October 1942, is, in my opinion, wholly unsubstantial.

30. It was then contended by the learned advocates for the petitioners that, prior to 4th October 1942, the ordinary Courts had already taken cognizance of the offence in respect of which their clients have been convicted, and that it was not open to the District Magistrate to withdraw a case pending in the ordinary Courts and transfer it to the Special Courts for disposal. The Ordinance, it was pointed out, does not contain any provision authorizing District Magistrates or Sub-divisional Magistrates to transfer cases from the ordinary to the Special Courts or vice versa. It is, of course, true that, in consequence of the order made by the District Magistrate on 4th October 1942, the petitioners came ultimately to be tried by the Special Judge and not, as would otherwise have been the case, by the Court of Session. It is not, however, correct to say that the case was transferred by the District Magistrate from the ordinary Courts to the Special Courts. No order purporting to be an order of transfer u/s 528, Criminal P.C., was made by the District Magistrate. The District Magistrate merely made an order u/s 5 of the Ordinance, and the Sub-divisional Magistrate, on that order being brought to his notice, felt constrained to send the record of the proceedings to the Special Judge who, on seeing them, took cognizance of the offence u/s 6.

31. I am myself very doubtful if it can properly be said that, prior to 4th October 1942, the Sub-divisional Magistrate did in fact take cognizance of this offence. It appears that, between 9th September 1942, when one of the petitioners was arrested, and 8th October 1942, when the record was sent to the Special Judge, a succession of officers held charge of the duties of the Sub divisional Magistrate. It is true that one of them, on an application for bail by one of the petitioners, called for the police diaries, and that another rejected a similar application made by another per. son who had been taken into custody. The police diaries were never sent to the Sub-divisional Magistrate, and the bail application in question was ultimately disposed of by the Special Judge. It does not appear that, until 8th October 1942, when the then Sub-divisional Magistrate, Mr. R. Ojha, sent the record to the Special Judge, any of the Sub-divisional Magistrates had consciously applied his mind to the facts of the case. I will, however, assume for the sake of argument that, in view of the authorities, which were cited by Mr. Mahabir Prasad, and one at least of which is binding on us, cognizance of the offence must be deemed to have been taken by the Sub-divisional Magistrate on or before 24th September 1942, when an order for a further remand was made. The contention advanced by Mr. Mahabir Prasad and also by Mr. Manuk was that, as cognizance had been taken on or before 24th September 1942, the petitioners thereby acquired a right to be tried by the ordinary Courts under the old procedure. The question, which the Full Bench of this Court had to consider in the decisions already cited, was whether prior to the date on which the Ordinance came into force, certain persons had acquired a right to be tried by the ordinary Courts under the old procedure, which right could not be, and was not in fact, taken away by the Ordinance. The conclusion to which the Pull Bench came was that any persons, against whom criminal proceedings had been commenced prior to 21st August 1942, had acquired such a right. The ratio decidendi must, however, be borne in mind. It was not merely that proceedings had been commenced prior to the date on which the Ordinance came into force, but also that, in enacting the Ordinance, the Legislature, if that was its intention, had omitted to use such language as would make it operate retrospectively. A trial begun under the old procedure must, on the latter ground, and not merely because it had begun under the old procedure, be continued and concluded under that procedure in spite of the amended law having already come into operation. On 24th September 1942, the petitioners, it is clear, had no right to be tried by the ordinary Courts under the old procedure rather than by the Special Courts under the new procedure. The venue of their trial was, as the law then stood, made to depend wholly on any orders which might be made, by the District Magistrate u/s 5 or Section 10 of the Ordinance. When confronted with this position, Mr. Mahabir Prasad argued, very ingeniously, that, if cognizance of this offence was once taken by the ordinary Courts, cognizance could not be taken of it again by the Special Courts.

32. The maxim " Nemo debet bis vexari" would, it was said, apply. It is, of course, unreasonable that a man charged with an offence should be called on by more than one Court to answer to it, and, if such a situation arose, the District Magistrate, by an order u/s 528(8), Criminal P.C., or if necessary the High Court, in revision, would no doubt intervene and stop the proceedings in the one Court or the other. But Section 403, Criminal P.C., does not really apply, and there does not appear to be any other provisions in that Code which could be relied on as going to debar a Magistrate from taking cognizance of an offence which has previously been taken cognizance of by another Magistrate. That was the view taken by Newbould J. in Haji Mohammudin and Company Vs. The Eastern Japan Trading Company, Suhrawardy J., who concurred in the order made in that case, no doubt hesitated to commit himself, but gave no reasons. The jurisdiction of the Special Courts is, however, derived from the Ordinance, and it is to the Ordinance that one must primarily look in deciding the question now before us. That, it is clear, was the manner in which the Pull Bench of this Court proceeded. The Full Bench came to the conclusion that the language used in the Ordinance was such as prevented it from operating retrospectively. Is there anything in it to suggest that, under certain circumstances, it was not intended to operate prospectively either Section 5 of the Ordinance states:

A Special Judge shall try such offences or classes of offences, or such cases or classes of cases as the Provincial Government, or a servant of the Crown empowered by the Provincial Government, in this behalf, may, by general or special order in writing, direct, or as may be transferred to him for trial under the provisions of Section 25A.

Section 6 (1) states:

A Special Judge may take cognizance of offences without the accused being committed to his Court for trial, and, in trying accused persons shall follow the procedure prescribed by the Code for the trial of warrant cases by Magistrates.

33. The effect of these two sections was, in my opinion, that as soon as the District Magistrate of Darbhanga made an order that the offence of dacoity should be tried by the Special Judge, the ordinary Courts ceased to have any jurisdiction to inquire into such an offence, and, either discharge the persons who had been sent up for trial, or commit them to the Court of Session. Even if the Sub-divisional Magistrate had, prior to 4th October 1942, taken cognizance of the offence he had not, it is clear, begun to inquire into it under Chap. 18, Criminal P.C. The trial of the petitioners began and was concluded in the Court of the Special Judge. That being so, it is, in my view, quite impossible to say that the Special Judge had no jurisdiction to convict and sentence the petitioners. The petitioners, as I have already said, did not and could not acquire, merely as a result of cognizance having been taken of the offence by the Sub-divisional Magistrate, a right to be tried by the regular Courts under the old procedure, which right they did not possess under the amended law which was in full force and operation before either of them was taken into custody. In my judgment, these applications in revision cannot be entertained and must be dismissed.