Fazl Ali, J.These are three revision applications by certain persons who have been convicted by Special Magistrates appointed under Ordinance 2 of 1942 and are directed against their convictions and sentences. Criminal Revision No. 636 is filed by one Sheo Baran Singh who has been convicted of an offence u/s 412, Penal Code, and sentenced to undergo rigorous imprisonment for 15 months and to pay a fine of Rs. 50. Criminal Revision No. 637 has been filed by Ram Narain Sah and Tulshi Sah who have been convicted under Sections (1) 147, (2) 448 read with Section 34, (3) 435 read with Section 34, Penal Code, and (4) Rule 35, Clause (a), Defence of India Act, read with Clause (4) and sentenced to undergo rigorous imprisonment for two years. The petitioner in criminal Revision No. 639 is one Ramdahin Ram who has been convicted u/s 412, Penal Code, and sentenced to undergo rigorous imprisonment for 15 months and to pay a fine of Rs. 75. Section 72 of Schedule 9, Government of India Act, provides as follows:

The Governor-General may, in oases of emergency make and promulgate ordinances for the peace and good government of British India or any part thereof, and any ordinance so made shall, for the space of more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature; but the power of making ordinances under this Section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Act.

2. Acting under this provision the Governor-General made and promulgated Ordinance 2 of 1942 otherwise known as the Special Criminal Courts Ordinance, 1942, on 2nd January 1942. It is recited in the preamble of this (Ordinance that an emergency having arisen it was necessary to provide for the setting up of Special Criminal Courts and Section 1 of the Ordinance states among other things that it extends to the whole of British India and that it shall come into force in any province only if the Provincial Government, being satisfied of the existence of an emergency arising from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the official Gazette, declared it to be in force in the province and shall cease to be in force when such notification is rescinded.

3. Section 3 of the Ordinance provides that Courts of criminal jurisdiction may be constituted under the Ordinance of the following classes, namely, d) Special Judges; (2) Special Magistrates and (3) Special Courts.

4. Section 9 provides that any Presidency Magistrate or Magistrate of the first class who has exercised powers as such for a period of not less than two years may be invested by the Provincial Government with the powers of a Special Magistrate under this Ordinance.

5. Section 12 provides that a Special Magistrate may pass any sentence authorised by law, except a sentence of death or of transportation or imprisonment exceeding seven years and further that if he is of opinion that the offence under trial requires punishment in excess of that which he is empowered to inflict, he shall stay proceedings and send the case for trial to the Special Judge having jurisdiction in the area.

6. Section 13 provides that an appeal shall lie to the Special Judge where a Special Magistrate passes a sentence of transportation or imprisonment exceeding two years.

7. A number of other Sections deal with matters relating to the appointment of special Judges and summary Courts but it is unnecessary to refer to them in the present case, as the trial of the petitioners was held by Special Magistrates and not by a Special Judge or a summary Court. There are also certain Sections dealing with the procedure to be adopted in the trials held in the Courts to be constituted under the Ordinance, but it is equally unnecessary to refer to these provisions, as it has not been suggested before us that the procedure adopted by the Magistrates by whom the petitioners were tried was different from what has been provided in the Ordinance. The only other Section to which reference need be made is Section 26 which runs as follows:

Notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall, save as provided in this Ordinance, be no appeal from any order or sentence of a Court constituted under this Ordinance and, save as aforesaid, no Court shall have authority to revise such order or sentence, or to transfer any case from any such Court, or to make any order u/s 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such Court.

8. Ordinance 2 was amended by the Governor-General by another ordinance 42 of 1942 which was promulgated on 19th August 1942. In the ordinary course ordinance 2 would have ceased to be in force before 19th August 1942, because u/s 72, an ordinance promulgated by the Governor-General was to remain in force only for a period of six months from the date of its promulgation. But in June 1942 there was an Act of Parliament (8 and 4 Geo. VI, chap. 33) which provided that Section 72 shall...as respects Ordinances made during the period specified in Section 8 of the Act have the effect as if the words "for the space of not more than six months from its promulgation" were omitted. As a result of this enactment, Ordinance 2 is still in force, and was in force on 19th August 1942 when the amending ordinance, 42 of 1942 was passed. Section 2 of this last ordinance runs as follows:

In Sub-section (3) of Section 1, Special Criminal Courts Ordinance, 1942 (hereinafter referred to as the said Ordinance), after the words "arising from" the words "any disorder within the province or from" shall be inserted.

9. This new Ordinance was followed by a notification in the Bihar Gazette of 2lst August 1942 that the Government of Bihar being satisfied of the existence of an emergency arising from the outbreak of widespread disorder in the province, the Governor of Bihar was pleased to declare that the Special Criminal Courts Ordinance, 1942 (Ordinance 2 of 1942) was in force in the province of Bihar. After this notification, the petitioners before us were tried by certain Special Magistrates appointed under the Ordinance and it is now for us to consider whether the High Court can interfere with the convictions and sentences of the petitioners notwithstanding Section 26 of the Ordinance to which reference has already been made and which provides in clear terms that save as provided in the Ordinance there shall be no appeal from any order or sentence of a Court constituted under the Ordinance and no Court shall have authority to revise such order or sentence, or have any jurisdiction of any kind in respect of any proceedings of any such Court. The petitioners in the three criminal revision applications were represented by different advocates but as some of the points urged on their behalf are common, and it has been urged in all the cases that this Court can revise the convictions and sentences, these three cases were heard together and all that is necessary is to deal with the arguments advanced before us seriatim.

10. The first argument which was advanced may be reproduced as follows: Section 72 of Schedule 9, Government of India Act, shows that the Governor-General can make and promulgate an Ordinance only in case of emergency and as the existence of an emergency is the condition precedent for making and promulgating the Ordinance, it is for the Governor-General himself to be satisfied of the existence of an emergency before an Ordinance can be made and promulgated and he cannot leave the question of the existence of an emergency or otherwise to be decided by any other authority. In the present Ordinance, though it is recited in the Preamble that an emergency had arisen, yet Sub-section (3) of Section 1 shows that in fact there was no present emergency, because it is left thereby to the discretion of the Provincial Government to bring into force the Ordinance in future, if such Government is satisfied of: the existence of an emergency. The fact that it was left to the Provincial Government to decide in future as to when the Ordinance is to be brought into operation shows that there was really no emergency at the date when the Ordinance was made and that the Ordinance was made only to provide against a future emergency.

11. This argument, notwithstanding its plausibility, is not merely divorced from realities but is also legally unsound. From the manner in which Section 72 is framed, it is quite clear that the Governor-General alone is to be the sole judge under the Act of the existence of an emergency and therefore the mere recital in the Preamble of the Ordinance that there was an emergency is enough. The point seems to me to be concluded by a pronouncement of the highest authority, because in AIR 1931 111 (Privy Council) the Privy Council dealing with a similar point raised before them with reference to Section 72 observed as follows:

The petitioners ask this Board to find that a state of emergency did not exist. That raises directly the question who is to be the judge of whether a state of emergency exists. A state of emergency is something that does not permit of any exact definition. It connotes a state of matters calling for drastic action which is to be judged as such by some one. It is more than obvious that that some one must be the Governor-General and he alone. Any other view would render utterly inept the whole provision. Emergency demands immediate action and that action is prescribed to be taken by the Governor General. It is he alone who can promulgate the Ordinance.

Yet, if the view urged by the petitioners is right, the judgment of the Governor-General could be upset either (a) by this Board declaring that once the Ordinance was challenged in proceeding by way of habeas corpus, the Crown ought to prove affirmatively before a Court that a state of emergency existed, or (b) by a finding of this Board--after a contentious and protracted enquiry--that no state of emergency existed, and that the Ordinance with all that followed on it was illegal.

In fact, the contention is so completely without foundation on the face of it that it would be idle to allow an appeal to argue about it.

12. These observations are, in my opinion, sufficient to dispose of the matter even if one confines oneself to the academic side of the argument and ignores the fact, as to which neither the Courts nor the litigants can pretend to be ignorant, that at the date of the Ordinance was passed there was a serious threat to the country. The use of the word "emergency" in Sub-clause (3) of Section 1 which is utilised for the sake of the argument which we have to consider does not, in my opinion, make any difference. All that is necessary in the present case is to see whether the Governor-General was competent to make and promulgate the Ordinance. If the Governor-General was the sole judge of whether a state of emergency existed and if the recital in the preamble is to be taken to be conclusive as to the existence of the emergency, then the Ordinance must be held to be a good Ordinance and all the provisions made therein, including the provision in Section 1, Sub-section (3) by which the Provincial Governments are to decide when the Special Courts are to be constituted, must also be held to be good. How can any argument be then founded upon any isolated provision of the Ordinance to show that the whole Ordinance is not good or that a stats of emergency did not exist at the time it was passed. In my opinion, the particular provision made in Sub-section (3) of Section 1 only amounts to this that the Governor-General being satisfied that the Provincial Governments should be armed with the power of creating Special Courts, has made an ordinance conferring such power upon them but has left it to them to set up such Courts as soon as the specific kind of emergency described in Sub-section (3) arises in their provinces. What is the emergency which, led the Governor-General to make the Ordinance is not stated and it is not for us to ask. The same, however, cannot be said about the emergency to which reference is made in Sub-section (3) because it is specifically stated in. that provision. In my opinion, Sub-section (3) of Section 1 by no means shows that there was no emergency at the time the Ordinance was made. The emergency which justified legislation for the whole country can be conceivably distinguished from the emergency which was to justify the bringing into operation of the particular legislation in a particular province. The-emergency for legislation simply means that the law was necessary, but it does not follow therefrom that the law should have been applied immediately and simultaneously to all the provinces of British India. Perhaps, the following passage which I am quoting from the judgment delivered by the Privy Council in Emperor v. Burah (79) 4 Cal. 172 may be helpful in this connection.

The Legislature determined that so far a certain change should take place; but that it was expedient to leave the time, and the manner of carrying it into effect to the discretion of the Lieutenant-Governor;.... The proper Legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute. Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may (in their Lordships judgment) be well exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is not an uncommon thing; and in many circumstances, it may be highly convenient. The British Statute Book abounds with examples of it: and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of legislative powers which it from time to time conferred. It certainly used no words to exclude it.

The mere fact therefore that the Governor-General having decided that the constitution of Special Courts was necessary left it to the discretion of the Provincial Governments to constitute these Courts as soon as it was necessary to do so does not show that the Ordinance is imperfect, or that it is void because the Governor-General himself did not constitute the special Courts.

13. The next argument advanced before us was that the Ordinance is bad because it is repugnant to Sections 89 and 100, Government of India Act, 1935. Section 89 empowers the Governor of a province to promulgate Ordinances with reference to certain subjects. Section 100 Sub-section (3) provides that subject to the two preceding sub-sections--Sub-sections (1) and (2), the Provincial Legislature has and the Federal Legislature has not, power to make laws for a province or any part thereof with respect to any of the matters enumerated in List 2 of Schedule 7 (called the Provincial Legislative List). Upon these two sections, it is argued that the Ordinance in question is an encroachment on the right of the Governor to make an Ordinance in his own province with regard to matters included in the Provincial Legislative List as set out in Sch. 7 to the Act. Item 2 in the List is "jurisdiction and powers of all Courts except the Federal Court with respect to any of the matters in this List" and Item 37 is "offences against laws with respect to any of the matters in this List." It is contended that the setting up of Courts to deal with offences was a Provincial subject and a Provincial Ordinance was necessary to deal with it and that being so, the Governor-General should not have passed an Ordinance for setting up Special Courts in different Provinces. The reply to this argument is, however, provided by Sub-section (4) of Section 100 which states that the Federal Legislature has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof. It is not denied that the Ordinance in question has the same force as the law passed by the Federal Legislature and it is quite clear from Section 100, Clause (4) that where a law is to be enacted not for a Province or any part thereof, but for the whole country, the Federal Legislature (in the present case, the Governor-General) has the power to make laws even though they may be with respect to matters in the Provincial Legislative List. Section 72 of Schedule 9 clearly recites that the Governor-General may in eases of emergency make Ordinance for the peace and good government of British India or any part thereof and such Ordinance will have the same force of law as an Act passed by the Indian Legislature.

14. It was further argued that the Ordinance will override Section 292, Government of India Act, if it is intended to take away such jurisdiction of the High Court as has been conferred upon it by the Letters Patent. Section 292 runs as follows:

Notwithstanding the repeal by this Act of the Government of India Act, but subject to the other provisions of this Act, all the law in force in British India immediately before the commencement of Part III of this Act shall continue in force in British India until altered or repealed or amended by a competent Legislature or other competent authority.

15. It is contended that under this Section the Governor. General was not a competent authority to alter, repeal or amend any of the provisions of the Letters Patent. This argument, however, completely overlooks Section 41, Letters Patent of the Patna High Court which reads as follows:

And we do further ordain and declare that all the provisions of this our Letters Patent are subject to the legislative powers of the Governor-General in Council and also of the Governor-General in Council u/s 71, Government of India Act, 1915, and also of the Governor-General in cases of emergency u/s 72 of that Act, and may be in all respects amended and altered thereby.

16. Thus, Section 41 is a clear and specific provision in the Letters Patent to the effect that an Ordinance passed by the Governor-General in cases of emergency u/s 72, Government of India Act (Schedule 9) may curtail or limit the powers of the High Court under the Letters Patent.

17. The next argument was based upon Section 6, General Clauses Act, which provides among other things that where any Act of the Governor-General in Council or Regulation repeals any enactment hitherto made, then unless a different intention appears, the repeal shall not (i) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed; or (ii) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (iii) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. It is contended that because of this provision the Ordinance cannot affect any rights accrued prior to its enactment and should be held to be prospective and not retrospective in operation so far as the matters referred to in the above Clauses are concerned. As to the theoretical part of the argument little need be said at this stage because the real question to be decided is how far this argument can be of avail to the petitioners. In order to deal with this question it will be necessary to refer to a few facts.

18. In Criminal Revision No. 636 the house of the accused was searched on 20th August 1942; he was arrested about 21st August and a charge-sheet was submitted by the police on 15th September. In Criminal Revision No. 687 the offence is said to have been committed on 14th August 1942; the petitioners concerned were arrested on 15th August 1942 and the charge-sheet was submitted by the police on 20th August 1942. In Criminal Revision No. 639 the house of the accused was searched on 19th August and on the same day he was arrested, but the charge-sheet was not submitted by the police until 15th September 1942. It is contended that on general principles as well as under the General Clauses Act the Ordinance even if intra vires could be made applicable only to those cases where the offence is alleged to have been committed after the Ordinance came into operation and that because the offences in the cases before us were committed prior to the date when the Ordinance came into operation in this province, it did not affect the right of the accused to be tried under the normal procedure by the Courts which would have tried the offences in question under the Code of Criminal Procedure and accordingly the trial of the petitioners by the Special Magistrates was ultra vires. Now, it is well settled that alterations in the form of procedure are always retrospective, unless there is some good reason why they should not be so: see Gardner v. Lucas (1878) 3 A.C. 582. But assuming that the above proposition is subject to the provisions made in the General Clauses Act to which reference has been made, the question which is yet to be answered is whether the petitioners had any vested rights (such as the right to appeal or to apply for revision) by reason of any legal proceedings having started against them before the Ordinance came into operation. From the dates to which reference has been made, it is clear that no legal proceeding had started against the petitioners before the Ordinance came into operation and until any specific legal proceeding was started it could not be said definitely that the petitioners would have any right of appeal or otherwise. All that had happened was that the police had received certain information against the petitioners and had started an investigation. It is obvious that until the police investigation was completed and a charge-sheet was submitted against the petitioners it was premature to say whether the petitioners would be placed on trial or whether the police would send up a final report stating that the case against the petitioners had not been made out. The question of procedure or the right of appeal (could have arisen only after the submission of a charge-sheet and after the accused had been placed on trial. Until then it could not be said whether the accused would be tried by a Magistrate holding first class powers or second class powers or whether they were to be tried by a Magistrate empowered to try summary canes, or by a Court of Session or they would be tried at all.

19. It was contended that the petitioners must have been produced before a Magistrate within 24 hours of their arrest and the moment they were so produced judicial proceedings must be deemed to have commenced. This point, however, has been so well dealt with by Rowland J. in Emperor v. Sajiwan Mahto (42) 23 P.L.T. 684 that I shall content myself with merely quoting the observations made by him in that case:

It has been faintly suggested for the accused that Judicial proceedings commenced at an earlier date, that is to say, on 23rd August 1942 when the accused were first produced before a Magistrate u/s 167, Criminal P.C. The Section itself shows that production under this Section need not be before a Magistrate having jurisdiction to try the case and all that can be done under the Section is to authorise detention of the accused. This does not amount to taking cognizance of a case or, in my opinion, to the institution of judicial proceedings.

20. In these circumstances I can find no defect or want of jurisdiction in the Special Magistrates who tried the petitioners.

21. I will now refer to a somewhat novel argument which was advanced by Mr. M.N. Pal. It was contended by him that this High Court has among other powers the powers once exercised by the Nizamat Court which used to administer criminal justice prior to the institution of the High Courts and those powers have not and could not have been taken away by the ordinance. The clearest reply to this argument is furnished by Section 26 of the Ordinance which provides that notwithstanding any law for the time being in force, or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise any order or sentence passed by a Magistrate appointed under the ordinance. There can be no doubt that these words are sweeping enough to override all powers possessed by this Court from whatever source they may have been derived, but lest this summary way of dealing with the point should encourage any false notions about the powers possessed by the Nizamat Court which is now said to be vested in the High Court, I shall briefly state the circumstances under which that Court began to function and afterwards ceased to exist.

22. In August 1765, Emperor Shah Alam made a perpetual grant to the East India Company of the Dewani of the three provinces of Bengal, Bihar and Orissa. The Dewani means the office and the powers of the Dewan and the grant of the Dewani was a grant of the right to collect revenue of the three provinces and to exercise judicial powers in all civil and financial causes arising within the area. This grant of the Dewani was in fact a perpetual grant to the company for the revenue collected subject to the payment of a certain fixed sum to the Emperor and to defraying the expenses of the Nizamat (Fields Introduction to Bengal Regulation). The Nizamat denoted the office and duties of the Nazim who was the Chief Officer under the Moghal Government in charge of the administration of criminal law and the police just as the Dewan was charged with the administration of civil law and the collection of the revenue. The actual position was that when the" Dewani was granted to the English Company, the Subedar, or the Provincial Governor of Bengal, Bihar and Orissa, still continued to be Naib Nazim, or the Deputy of the Emperors Nazim, an officer entrusted with the administration of criminal justice in the three provinces and it was for the expenses of this Nazamat that the company were required to provide out of the revenue of the provinces of Bengal, Bihar and Orissa.

23. Seven years after the acquisition of the Dewani a Regulation was passed in 1772 by which two Courts were established, a Dewani or Civil Court, and a Foujdari or Criminal Court for each provincial division or Collectorship as then constituted. The Collector presided over the Dewani Adalat, whereas the Kazi and Mufti sat in the Foujdari Adalat to expound the Mahomedan law under the supervision of the Collector. An appeal lay from these Courts to the Sudder Dewani Adalat or Chief Civil Court and to the Sudder Nizamat Adalat or the Chief Criminal Court respectively. The Nizamat Adalat consisted of a Chief Officer of justice appointed by the Naib Nazim, the head Kazi and Mufti and three eminent maulavis. The proceedings of the Nizamat Adalat were subject to the control of the President in Council so as to ensure regularity and impartiality.

24. Such was the constitution of the Courts up to 1790 till which date the administration of criminal justice was more or less in the hands of the Naib Nazim and his officers. By a Regulation dated 3rd December 1790 the Nizamat Adalat was removed from Murshidabad, which was the head quarters of Naib Nazim, to Calcutta and it was provided that thenceforth the Nizamat Court shall consist of the Governor-General and Members of Council assisted by the head Kazi and two Muftis and that it should exercise all the powers lately vested in the Naib Nazim leaving the declaration of the law as applicable to the circumstances of the case to the head Kazis and Muftis in accordance with the former practice. In 1793 some further changes were made in the constitution of the Courts then existing and as a result of them the Sudder Dewani Adalat and Nizamat Adalat were constituted into a single Court having a civil and a criminal side. The members of the Court were the Governor-General and members of Council with the addition on the criminal side of the head Kazi of Bengal, Bihar and Orissa and two Muftis. The jurisdiction of the Sudder Courts was gradually extended and in 1831 a Court of Sudder Dewani and Nizamat was constituted for the Western Provinces.

25. In 1858 the Government of India Act was passed which declared that India was to be governed directly by and in the name of the Crown acting through the Secretary of State; and three years later, (hat is to say, in 1861 the Indian High Courts Act was passed by which the Queen was by Letters Patent to establish High Courts in Calcutta, Madras and Bombay and on their establishment the old chartered Supreme Courts and the Sudder Adalat Courts were to be abolished, the jurisdiction and powers of the abolished Courts being transferred to the new High Courts. Section 9 of the Act provided among other things that the High Court should have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts abolished under the Act at the time of abolishing such last mentioned Courts. In pursuance of this Act, the Courts of Sudder Dewani and. Nizamat Adalat of Calcutta were abolished in 1862 upon the establishment of the present High Court in Calcutta and the Courts of Sudder Dewani and Nizamat Adalats of western provinces were abolished in 1866 on the establishment of the High Court for the North Western Provinces. Such is briefly the history of the Nizamat Court and dealing with the question whether it was a Court of record or not Sir Lawrence Jenkins observed as follows in In the matter of Amrita Bazar Patrika AIR 1914 Cal. 69.

Not only is there nothing to show that the Nizamat was created a Court of record by Act of Parliament, Letters Patent or prescription, but it was not a Kings Court being only a Companys Court and in theory derived its jurisdiction and authority not from the British Crown but from the country Government in whose name the Company acted.

26. In my opinion, it is very difficult to hold, upon the facts already set out that the old Nizamat Court possessed any higher powers than those possessed by the present High Courts under various statutes such as the High Courts Act and the Government of India Act and under the Letters Patent. The powers now exercised by the High Court are clearly defined but it is impossible to say that they are in any way less in extent than the powers of the Nizamat Courts. The mere statement in the High Courts Act that the New High Court will have all the powers possessed by the Courts which were abolished does not necessarily show that the Courts which were abolished possessed more extensive powers, and in fact there is no foundation in history for any such assumption. Thus, if the High Court cannot interfere with the convictions in the cases before us under the powers conferred upon it by various statutes and Letters Patent, it is difficult to hold that it can interfere by reason of some undefined powers which were once exercised by the Nizamat Court.

27. The only other point which was urged before us was that the petitioners in Criminal Revision No. 637 should receive such consideration as is sometimes shown to a first offender and he should be released on probation u/s 562, Criminal P.C. This argument in my opinion does not arise because if this Court has no power to revise the convictions and sentences, it has no power to pass an order u/s 562. These revisions therefore fail upon the preliminary ground that this Court has no power to interfere either with the conviction of or with the sentences passed upon the petitioners in revision and I would accordingly dismiss all the three applications.

Harries, C.J.

I agree.

Varma, J.

I agree.