Bijoy Krishna Mandal vs The State

Guha Ray, J.—The two Appellants Bijoy Krishna Mandal and Grajendra Nath Mali were convicted u/s 396 of the Indian Penal Code and sentenced to 10 years'' rigorous imprisonment each by the Judge, Third Tribunal Alipur. The case for the prosecution briefly is that on the night of February 13, 1950, there was a dacoity in the house of Srinath Bhuiya alias Sripati Bhuiya, resident of Naraharipur, a small village in the Sagar Island in Sagar Police Station. Sripati''s house consisted of an east-facing two-roomed mud-walled hut with a verandah on the east and a kitchen attached to it. Sripati and his third son Dhirendra occupied the southern room and Jatin, Sripati''s eldest son, and one Iswar iMandal who had come to the house with the object of going out with Jatindra next morning to a hat for buying cloth occupied the verandah and Sushila Bala, Jatin''s wife, slept with her infant son and an old maid-servant in the northern room. At about 2-30 a.m. Sripati woke up on hearing the dog''s bark and the jhap-door falling and found his room lit up with the flashes of the electric torches and found two men one of whom had a piece of cloth tied round his head and cheeks standing near his bed and 2 or 3 men mounting guard on Jatin Bhuiya and Iswar Mandal on the verandah when he shouted out in fear. One of the men dealt him a blow with a lathi. While he was being struck, he also heard cries of Sushila Bala in the northern room. Dhirendra also woke up and saw two raiders in the room, 2 or 3 in the verandah and a few in the courtyard. Sushila Bala also found 2 or 3 men moving about in her room. She also raised a hue and cry whereupon both the raiders in her room threatened her with assault and ordered her to keep quiet. These two men then took out certain handloom cloths and gamchhas in which her husband used to trade, from the room and then broke open a box and took away there from some money and certain articles including number of packets of vermillion. A number of neighbours were attracted by the hue and cry and began to approach Sripati''s house. The raiders on getting scent of it left the house and tried to run away. Jatin Bhuiya and Dhiren Bhuiya gave them a chase. Jatin caught hold of one of the dacoits, threw him down on the side of their doba and sat on his back while Dhiren caught hold of another who, however, effected his escape by stabbing Dhiren on the arms. Jatin, however, was shot down by another of the raiders with the result that the raider whom he had thrown down on the ground also escaped. Jatin died almost instantaneously. Immediately after the dacoits had left her room, Sushila found her father-in-law in the verandah and while she had been talking with him, she heard cries of Dhiren. Than Sushila with her father-in-law and Iswar Mandal went up to the doba where Jatin lay already dead. The President of the Local Union Board Dr. Atul Mahapatra whose house is not far off from Sripati''s, came out of his house and rushed towards the house of Sripati. He found Jatin lying dead by the side of the doba and Iswar Mandal pouring water on the head. Dhiren, who also had been injured, was sitting by the side of Jatin and crying and Sripati was lamenting on the verandah, Dr. Atul Mahapatra heard of the occurrence from Dhiren and Iswar Mandal and leaving instructions to those of the neighbours who were there to remove the dead body of Jatin to the verandah, he went back home with Jatin Maity and from there he sent some men to the steamer station and different ferry ghats so as to prevent the escape of the dacoits from the island and despatched a written information about the occurrence to the Sagar Police Station which is about 12 miles off, through Jatin Maity and the local Chowkidar Jitendra Patra. Exhibit 1 is this First Information Report. Immediately after Dr. Atul Mahapatra had left the house of Sripati, many neighbours turned up there and heard of the occurrence.from Sripati and Dhiren and saw what had happened. Sripati told them that his nephew Haripada, who was also on his trial but was acquitted by the Judge, was one of the two dacoits. Sristidhar reported to all present that while he, after he had heard the hue and cry, was coming to Sripati''s house, he saw 6 or 7 men running away from the direction of Sripati''s house and he recognised amongst them in the flashes of his electric torch the two Appellants Gajen Mali and Bijoy Mandal. On the following day at about 10-30 a.m. A.S.I. N.K. Das who was then in charge of the Sagore Police Station received the written report of Dr. Atul Mahapatra through Jatin Maity, filled up the F.I.R. form, and accompanied by a constable visited the house of Sripati at 5-30 p.m. and saw what had actually happened. He held an inquest on the dead body, examined some witnesses and took into custody some alamats including two bullets, Ex. I, and four live cartridges, Ex. II, which had been picked up by Gajendra Nath Maity early in the morning by the side of the doba where Jatin Bhuiya had been killed. Next morning he despatched the dead body of Jatin to the Diamond Harbour morgue for post-mortem examination under the escort of constable Manoranjan Das and also sent Dhiren and Sripati to the Diamond Harbour Hospital for treatment. On February 19, 1950, S.I. Amulya Barman on being temporarily deputed to the Sagore Police Station took up the investigation of the case and in due course the Officer-in-Charge S.I. Suren Boy took over the investigation from Amulya Barman. On the night of February 27, 1950 at about 2-30 a.m. (so that the actual date of arrest would be 28th February 1950) the Appellants Gajen Mali and Bejoy Mandal were arrested at Bak Khali by some members of the Lakshmipore village defence party, namely, Ratikanta Das. P.W. 26, Santosh Kumar Haty, P.W. 27, and Swadesh Ranjan Deb Sharma, P.W. 28. At the time of the arrest there had to be an exchange of fire between the Appellants on the one hand and the members on the village defence party on the other. Gajen Mali when he was arrested was armed with a revolver and a number of cartridges was found in his possession. After they had been secured a few pieces of new cloth and 35 vermilion packets which are alleged to have been stolen during the dacoity from Sripati''s house were seized from the, boat in which these two Appellants were. After the members of the village defence party had arrested Gajen Mali and Bejoy Mandal, they made them over in the afternoon of 28th February, 1950 to the subdivisional Police Officer of Diamond Harbour, P.W. 34, at Frasergunge Union Board office which he happened to visit on that date. The S.D.P.O. brought the two Appellants to Namkhana where he was camping in his steam lunch along: with the property seized and made over to Inspector Lokenath Dasgupta, P.W. 37, on March 1, 1950. The revolver found with Gajen Mali is Ex. XI and the two fired cartridge cases and nine live cartridges are Exs. XII and XIII and the cloth, the bundle of hand-loom saris, gamchhas and vermillion packets, etc., were all lumped up as Ext. VII. The Inspector forwarded all the arrested men to court. On March 3, 1950 the arrested persons were produced before the Magistrate. Bejoy ''Mandal made a confessional statement before Shri S.K. Mukherjee, Magistrate, First Class. The revolver Ex. II, along with another revolver which had been seized from the possession of Bhusan Kamila who also was on trial in this case but was discharged by the learned Judge, namely, Ex. IX, was sent to the Arms Expert along with the fired cartridge cases, Ex. XII, seized after the arrest of Gajen Mali and Bejoy Mandal and also the bullets, Ex. I, and live cartridges, Ex. II, found by Gajen Maity near the doba where Jatin''s dead body was found on the morning following the night of the occurrence. The Arms Expert after an examination of these weapons and firing cartridges from both these weapons was of the opinion that one of the two bullets in Ex. I had been fired from Ex. XI, the revolver that was found with Gajen Mali and the other bullet in Ex. I, had been fired from the revolver Ex. IX found with Bhusan Kamila. On these facts a charge u/s 396 Indian Penal Code was framed against these two Appellants who were convicted, Haripada was acquitted. The defence of the two Appellants was that they were not guilty and that they were falsely implicated in this case on the ground that they had participated in the tebhaga movement in the Kakdwip area and were also wanted by the Police in connection with a number of cases falsely started against them on the ground of their participation in the tebhaga movement. The first question for consideration in this appeal is whether there was a daeoity in the ''house of Sripati Bhuiya on the night of February 13, 1950 as alleged. Apart from the inmates of the house, namely, Sripati, P.W. 3, Sushi hi Bala, P.W. 2, Dhirendra. P.W. 9, there is the evidence of the neighbours Dr. Atul Mahapatra, Sristidhar Mandal, Jatindra Nath Maity and Iswar, Chandra Mandal who belongs to a neighbouring village Rudrapur but was staying in the house of Sripati in the night of the occurrence in order to accompany Jatin next morning to Terapakhia, Bazar for purchase of cloth. There is also the evidence of Bhuban Chandra Jana, Hrishikesh Mahapatra, Dr. Kanai Lal Mitra, Nagendra Nath Jana, Narendra Nath Mandal, Jitendra, Nath Patra, the local chowkidar, Gajendra Nath Maity, Ananta Kumar Mandal of, Rudranagar who was, staying in the house of Bhupen Mandal pf Harinbari village that night and others. There is also the fact that Jatin was undoubtedly done to death as, a result of the occurrence and there is no reason whatever why this volume of evidence should be disbelieved on the question that, there was an occurrence on that night in the house of Sripati. As in the number of persons who took part in the occurrence there was the evidence of Sripati, Dhiren and Sushila. There is also the evidence of. Sristidhar. According to them the number of; men who took part in the occurrence must, have been at least five as already stated, Sripati was beaten and so was Dhiren and Jatin was shot dead. A quantity of handloom cloths, money, a number of packets of vermilion were stolen. The occurrence, therefore, nrust have amounted to dacoity.

The next question for consideration in this appeal is whether the killing of Jatindra amounts to an offence u/s 396, Indian Penal Code. The evidence is that on getting scent of the approach of the neighbours the dacoits were trying to escape when they were pursued and Jatindra caught hold of one of the men and just on the west of the doba near tke courtyard of the house of Sripati, as stated by P.W. 9 Dhirendra, Jatindra threw down that man and sat up on him when he was shot dead. The definition of robbery in Section 390, Indian Penal Code, and the definition of dacoity in Section 391, Indian Penal Code, make it clear that the offence of dacoity is committed when the offender voluntarily causes or attempts to cause to any person death or hurt in carrying away or attempting to carry away property obtained by the theft; evidently, therefore, when Jatindra threw down one of the raiders on the ground and sat upon his chest, the offence of docaity was not atill completed, particularly when the raiders had not yet left the homestead of Sripati. The killing, therefore, of Jatindra must be held to have been committed in committing the dacoity so that the offence does amount to one u/s 396 Indian Penal Code.

The next and most important question for decision in this appeal is whether it has been proved beyond all manner of reasonable doubt that the present Appellants were concerned in the occurrence that took place in the house of Sripati. None of the witnesses recognised them during the actual commisison of the dacoity. The most important piece of evidence against them is that of Sristidhar Mandal, P.W. 4, who lives at Harinbari, within Sagar Police Station, about half a mile from the house of Sripati. It is his evidence that as he was coming to Sripati''s house armed with a gun on hearing the hue and cry, he found, after he had crossed the khal that separates his house from that of Sripati and had come near the boundary of Sripati''s house, 6/7 men coming towards them and in the light of his torch which he flashed on them he came to recognise Gajen and Bijoy, the present Appellants. Sristidhar says that he used to "know these men when he used to go to Pastibunia, Narayanitala and Loyalgunge and actually saw and heard them delivering speeches on the tebhaga movement in meetings. On catching sight of Sristidhar these men changed their direction and began running away. Sristidhar then made over his torch to his companion, viz., Bipin Pariya who has not been examined and tried to aim his gun but meanwhile they got out of sight in the jungle. Sristidhar followed them for a certain distance but could not find them. So he turned back and went to Sripati''s house. The learned Judge has relied on the evidence of Sristidhar Mandal and the only question now is whether there is any reason for doubting his evidence. Sristidhar on reaching the house of Sripati told the persons he saw there that he had seen a number of the men going away and'' from amongst them he recognised Gajen and Bijay. The witnesses, who corroborate him on this point are Dr. Kanai Lal Mitra, Hrishikesh Mahapatra, Nagendra Nath Jana, Narendra Nath Mandal, Jatindra Maity, Ananta Mandal, Gajendra Maity and also Sripati, Atul Chandra Mahapatra, Iswar Mandal and Dhiren Bhuiya.

Mr. Chatterjee on behalf of the Appellants argues that Sristhidhar should not be believed first because he as the captain of a village defence party is no better than a creature of the police and secondly, because although to the Police he said that on his arrival he told amongst others the President of the local Union Board, viz., Dr. Atul Mahapatra that he had recognised Gajen and Bijoy, all the witnesses in court say that Sristidhar did not meet Dr. Atul Mahapatra on his arrival at the house of Sripati but met him later either in the small hours of that morning or next morning; and this, according to Mr. Chatterjee, the witnesses are saying; now only to meet the situation arising out of the fact that Dr. Atul Mahapatra in his information to the police, Ex. 1 (this is the First Information Report) does not mention any name at all or the fact that Sristidhar had mentioned any name. The mere fact that Sristidhar is the captain of a local village defence party does not show that he is a creature of the Police although village defence paties have undoubtedly to work in co-operation with the Police. This is all the more so in an area like the Sagar Island where there was nothing like the tebhaga movement as stated by Dr. Atul Mahapatra at p. 26 of the Paper book in cross-examination. This is what he says:

There was no tebhaga movement within the jurisdiction of Sagore P.S. to my knowledge. Village defence parties were formed in every village within my Union, during the rainy season of 1356 B.S. It was organised not by me but by the police. It is not a fact that the village defence party was under the control of Union Board or its President or any member. It was fully under the control of the Police.

That there was anything like a tebhaga movement in Sagar Police Station there is nothing to show. A suggestion was put forward to Debendra Nath Das, P.W. 18, on behalf of the defence that there was a tebhaga movement in the locality going on in 1356 B.S. but the witness repelled the suggestion. As there was nothing like a tebhaga movement in this area there is hardly any reason why the inhabitants of this village should combine with the police to fabricate false evidence against the Appellants who belong to Kakdwip Police Station and not to Sagardwip Police Station at all.

The next ground assigned by Mr. Chatterjee is much more important. It is certainly true that in Ex. 1 which Dr. Atul Chandra Mahapatra sent to the Police Station that very night and which reached the Police Station at about 10-30 next morning there is no mention at all of the President having heard from Sristidhar Mondal the names of the present Appellants or of anybody else as having taken part in the dacoity. The explanation, however, of this omission as given by Dr. Atul Chandra Mahapatra is that he did not meet Sristidhar at all when he went to the house of Sripati Bhuiya that night on hearing the hue and cry. His evidence is that on the first occasion when he visited Sripati''s hstuse that night he stayed there for a few minutes only and hurried back home after having left instructions with the neighbours who had been found there that Jatindra''s dead body should be removed to the varandah and on his return home he made arrangements not merely to send an information to the Sagar Police Station but also for sending men to different ferry ghats for preventing the escape of the raiders. P.W. 6 Iswar Chandra Mandal and P.W. 9 Dhirendra Nath Bhuiya also corroborate him on this point. Sristidhar says that he met the President at about 4 p.m. Sristidhar of course appears to have stated to the A.S.I. Narendra Kumar Das, P.W. 50 that on his arrival at tile place of occurrence he found the President and

Dr. Kauai Lal Maitra and many other persons present there and reported to them the fact of recognition of Bejoy and Grajen Mali. But in his evidence in court Sristidhar says differently. In his examination-in-chief he says that of the neighbours who came to the house of Sripati he remembered the names of Hrishikesh Mahapatra, Nagendra Jana, Narendra Nath Mandal, Iswar Chandra Mandal and Ananta Kumar Mandal and he spoke to them of his recognition of Bejoy Mandal and Gajen Mali and then says that he also told the President of his recognition at about 4 p.m. In his cross-examination he states as follows:

I did not meet Atul Mahapatra on the night of occurrence. My statement that I did hot see Atul Mahapatra on the night is true. I did hot srfy anything about reeogriition of any of the accused to Atul Mahapatra on that night, at 4 a.m. I saw Atul Mahapatra near Harinbari bazar on the next morning about half an hour after the sunrise.

There is thus undoubtedly a certain amount of discrepancy between the different statements of Sristidhar and between his statement to the A.S.I. P.W. 50 and his evidence in court. It must, however, be remembered that the occurrence took place in February, 1950 and the witnesses were deposing in June, 1953 so that discrepancies of this nature were inevitable. The question is whether these discrepancies would go to show that Sristidhar was perjuring himself deliberately. It appears from the evidence of the other witnesses already mentioned that Sristidhar on arriving at the house of Sripati immediately after the departure of the dacoits gave out that he had seen 6 or 7 men running away and in the flash of his torch he recognised Bejoy Mandal, and Gajen Mali. There is hardly any reason why all these witnesses should be disbelieved and if they are believed, as they must be in our opinion, there is no doubt that Sristidhar gave out on his arrival at the house of Sripati that he had recognised Bejoy Mandal and Gajen Mali amongst the 6 or 7 men whom he found running away as he reached Sripati''s house. It is also clear that had he mentioned these names to Atul Mahapatra, Atul Mahapatra could not possibly have omitted to mention these names in the report he sent to the thana. The evidence, therefore, of Atul Mahapatra that when he first came to the house of Sripati that night he did not in fact meet Sristidhar must be taken to be correct in spite of what Sristidhar might have stated to the A.S.I. P.W. 50. There is thus no reason whatever why Sristidhar''s evidence that he recognised the two Appellants among 6 or 7 who, were running away as he reached the boundary of Sripati''s house should be disbelieved. In ihis connection Mr. Chatterjee has also argued that Sristidhar''s companion Bepin has not been examined. The non-examination of Bepin might at best raise a presumption that if Bepin was examined he would not have supported the prosecution case. At best it follows from that that if Bepin had told the truth he might have said that he did not recognise anyone himself. The presumption, therefore, that might arise from the non-examination of Bepin would not, in our opinion, outweigh the positive evidence of Sristidhar.

The evidence of Sristidhar connects the Appellants, though indirectly with the occurrence in the house of Sripati for it was immediately after the occurrence that 6 or 7 men were foiind running away from near Sripati''s house and Bejoy Mandal and Gajen Mali were among those men. The irresistible inference is that they must have been among those who took part in the raid in Sripati''s house. In other words they must have taken part in the dacoity.

Then there is the retracted confession of Bejoy Krishna Mandal. Although it is retracted, the evidence of Sristidhar furnishes a very strong corroboration thereof as regards the participation in the occurrence of Gajen Mali and Bejoy Mandal himself. On behalf, of the Appellants it has been argued by Mr. Chatterjee that this confession is not a confession at all as it is self-exculpatory and therefore it should not be used against Gajen Mali at all. In our opinion Bejoy Mandal although he did not tar himself with the same bush as the rest, does admit having taken part in the dacoity in Sripati''s house. Therefore, it is by no means self-exculpatory. It may accordingly be considered even against Gajen Mali. But the learned Judge has not actually given much weight to it independently of the rest of the evidence. He has said that it has little or no evidentiary value by itself and in our opinion he was quite correct in this. If there was no other evidence, the conviction of Gajen Mali could not have been based on the confession of Bejoy Mandal alone. Mr. Chatterjee also argued that it was not a voluntary confession because he was given only 4 hours time for reflection after his production from the police custody. There is evidence that Bejoy Mandal was arrested along with Gajen Mali at about 2-30 a.m. on the night of February 27, 1950 and the date of the arrest, therefore, was February 28, 1950. He was made over to the S.D.P.O. Diamond Harbour by those who arrested him on the afternoon of the 28th. The S.D.P.O. took him to Namkana camp on March 1, and made him over along with the other arrested persons to the Sub-Inspector of Police P.W. 37, Loke Nath Das Gupta and he sent Bejoy and the arrested persons to court on the 1st and they reached Diamond Harbour on the 3rd. Bejoy, therefore, was undoubtedly in police custody from the afternoon of February 28 up to the time of his production in court. But it appears from the evidence of the Magistrate who recorded his confession, namely, P.W. 38 that he gave him the usual caution and thereafter gave him four hours'' time for reflection and during this time he was kept in charge of the court peon and on the expiry of four hours he again cautioned him and then proceeded to record the confession. There is no indication in the confession itself that the confession was anything but voluntary, nor is there anything in the evidence on record to suggest that it was involuntary.

In addition, it appears from the evidence of P.W. 16 Gajendra Nath Maity that next morning he found a few bullets near the doba and handed them over to the President and the President also corroborates him in that and he further says that he made over these bullets to the A.S.I., N.K. Das, P.W. 50. P.W. 50 A.S.I. Narendra Kumar Das, however, says that it was Sripati Bhuiya who made over four cartridges (Ex. II) and two bullets Exs. I and I(1) to him. Whether the bullets in question were made over to him by Sripati or by the President the fact remains that these bullets had been recovered by Grajendra Nath Maity near the doba where Jatin had been shot dead. It is the evidence of the Arms Expert to whom as already stated, these bullets along with the revolvers Exs. IX and XI were sent, that one of the bullets was fired from Ex. IX which was in the possession of Bhusan Kamila who was also on trial in this case but was discharged and the other from Ex. XI which was in possession of Gajen Mali at the time of his arrest. This of course, does not conclusively establish the connection of Gajen Mali with the dacoity in the house of Sripati for the same weapon might have been handled by some one else but it goes to establish his connection with the persons who had access to this weapon. Mr. Chatterjee has pointed out that in his confession Bejoy speaks of only one revolver which according to him Gajen handed over to Amulya Kamila. From the fact that two bullets were found at the place where Jatin had been shot dead and that according to the Arms Expert these two bullets were fired from two revolvers it is conclusivly proved that in fact two revolvers were used during the dacoity. On the evidence, therefore, there is no room for doubt that the Appellants did in fact take part in the dacoity committed in the house of Sripati. They were, therefore, rightly held guilty u/s 396 of the Indian Penal Code.

On behalf of the Appellants Mr. Chatterjee raised certain points of law. His first point is that para. 2 of the Schedule to the Tribunal of Criminal Jurisdiction Act, 1952 (West Bengal Act XIV of 1952) contravenes Article 14 of the Constitution as there is a discrimination between the persons put on trial in this case and other persons to whom the general law of the land is applicable. Secondly, he argues that this paragraph of the schedule amounts to delegated legislation and thirdly he argues that it cannot legally have any retrospective operation which was given to it under the terms of the Notification.

To substantiate the first point Mr. Chatterjee of course refers to a number of decisions. But the law on the point has been clearly stated in Kedar Nath Bajoria Vs. The State of West Bengal, so that it is not necessary to refer to the other decisions. The law on the point as laid down in this case is as follows:

The equal protection of the laws guaranteed by Article 14 of the Constitution does not mean that all laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purposes of legislation. To put it simply, all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain. If the classification on which the legislation is founded fulfils this requirement, then the differentiation which the legislation makes between the class of persons or things to which it applies a nd other persons or things left outside the purview of the legislation cannot be regarded as a denial of the equal protection of the law, for, if the legislation were all embracing in its scope, no question could arise of classification being based on intelligible differentia having a reasonable relation to the legislative purpose.

The same proposition has been laid down in the judgment of Mukherjea, J., in the case of Kathi Raning Rawat Vs. The State of Saurashtra, in the following terms:

A legislature for the purpose of dealing with the complex problems that arise out of an infinite variety of human relations, cannot but proceed upon some sort of selection or classification of persons upon whom the legislation is to operate. The consequence of such classification would undoubtedly be to differentiate the persons belonging to that class from others, but that by itself would not make the legislation obnoxious to the equal protection clause. Equality prescribed by the Constitution would not be violated if the statute operates equally on all persons who are included in the group and the classification is not arbitrary or capricious, but bears a reasonable relation to the objective which the legislation has in view. The legislature is given the utmost latitude in making the classification and it is only when there is a palpable abuse of power and the differences made have no rational relation to the objectives of the regulation, that necessity of judicial interference arises.

It has now to be seen whether the legislation in question fulfils the requirements laid down in these two cases. The preamble to the Act runs as follows:

Whereas it is expedient in the interests of the security of the State, the maintenance of public peace and tranquility and the due safe-guarding of industry and business, to provide for the speedy trial of the offences specified in the Schedule.

This clearly gives an outline of the objects which the legislature has in view. Then it defines in Section 2 Clause (b) what is meant by disturbed area as follows:

"disturbed area" means an area in which in the opinion of the State Government-

(i) there was, or

(ii) there is

any extensive disturbance of the public peace and tranquility and in respect of which area the State Government has issued a notification declaring such area to be disturbed area. In cases falling under Clause (i) the notification shall have effect during such period as may be specified therein.

The Notification in question is Notification No. 6061P, dated September 12, 1952. The Schedule to the Notification covers the whole of Kakdwip and Sagar Police Stations in Diamond Harbour, district 24-Parganas and the period specified is from January 1, 1948 to March 31, 1950, as the period during which this Notification shall have effect. Clearly, therefore, a principle of classification is involved in this piece of legislation. It is meant to apply to areas which in the opinion of the State Government are disturbed areas within the meaning of the term u/s 2(b) of the Act and it is meant to apply to offences as specified in" the Schedule, of which a speedy trial was desirable. The legislation laid down clearly that all offences of a particular nature specified in the Schedule which occurred within the period specified in the Notification referred to were made triable under this Act and the ordinary courts would have no jurisdiction to try such cases. Judged, therefore, in the light of the principles laid down by the Supreme Court in the two cases referred to above, the Act in question satisfies the reqtiirements of the equal protection clause of the Constitution.

Mr. Chaiterjee''s next contention, as already stated, is that this piece of legislation amounts to delegated legislation because it leaves to the State Government to decide to which areas this Act would be made applicable and the State Government by a simple fiat in the form of a Notification such as Notification No. 6061P, dated September 12, 1952, did take away from the areas in question the applicability of the ordinary law of Criminal Procedure in the trial of certain offence. In order that a particular Act might amount to delegated legislation it has first of all to amount to legislation. What the Act left to the discretion of the State Government is to determine which areas are disturbed areas within the meaning of the expression in Section 2(b) of the Act and that is what the State Government has done. Is it legislation at all? In our opinion it is not, for it does not lay down any policy. It merely implements the legislation with respect to the area where it may be made applicable and with respect to the period for which it will be applicable. If it is not legislation as in our view it is not, the question that it is delegated legislation hardly arises. In our view there is no substance m this part of Mr. Chatterjee''s contention either.

His next contention is that the Notification in question cannot give the Act a retrospective operation because it was made applicable for a period between January 1, 1948 and March 31, 1950 and he argues that the whole thing is a fiction because at the date when this Act was made effective according to the Notification the Act itself had no existence. This argument applies with equal force to all kinds of legislation that may be given retrospective effect because whenever a, piece of legislation is given retrospective effect it means that it was being given effect to at a time when the legislation itself did not exist. Thus if it is a fiction, this fiction is a characteristic of all legislation that is given retrospective effect. In this Act the very meaning of the expression "disturbed area" includes the legislation having retrospective effect. Where the legislation clearly and expressly provides in the meaning of the expression "disturbed area" that it includes an area where in the past there was any extensive disturbance of public peace, etc., and in respect of which the State Government issued a Notification declaring such area to be disturbed area there is nothing illegal in the issue of a Notification saying that certain area would be regarded as a disturbed area for a period in the past. There is, therefore, nothing in this part of Mr. Chatterjee''s contention also.

The result then is that the convictions of the Appellants u/s 396 of the Indian Penal Code are upheld together with the sentences passed and the appeal is dismissed.

Sen, J.

I agree.