Jhakar Abir and Others vs Province of Bihar

Agarwala, J.—The four petitioners have been convicted of participating in a dacoity at the house of Ramsewak Eai on the night between 19th and 20th October 1942, and have each been sentenced to four years'' rigorous imprisonment and to pay a fine of Rs. 50 each. The trial, which commenced on 12th January 1943, was held by a Special Magistrate of Bettiah purporting to act under the Special Criminal Court Ordinance (2 of 1942), the case having been sent to him for trial by the Subdivi-sional Magistrate. Judgment was pronounced, on 8th February 1943. Subsequently, on aisfc June 1944,, the petitioners made an application to this Court u/s 491, Criminal P. C, for their release. This application-was heard by Chatterji and Shearer JJ., on 6th October 1944. In consequence of the order made by those learned Judges the application was ordered to be placed before this Bench.

The difficulty of the case arises by reason of orders passed by two District Magistrates, of Champaran and of the view taken of those: orders by a previous Bench of this Court of which I was a member. The first order is that , of Mr. Dhar, the then District Magistrate of Champaran, directing that certain "offences or classes of offences, or cases or classes of cases,, arising out of the civil disobedience movement, should ordinarily be tried by the Special Judge unless otherwise specially directed." Among the offences specified in the order was the offence of dacoity. This order was issued with Memo No. 141314, dated 4th September 1942. Subsequently, Mr. Dhar issued another order, expressed to be in continuation of the order of 4th September 1942, directing that offences under Sections 386 and 395, Penal Code, and offences under the Criminal Law Amendment Act, should ordinarily be tried by Special Magistrates unless otherwise directed. This order was issuedv with Memo No. 15448-49, dated 22nd/23rd September 1942. It will be observed that, while the first order related to specified offences and cases arising out of the civil disobedience; movement, the second order applied to certain specified offences generally. There is nothing to indicate that Mr. Dhar meant his first order to apply to offences therein specified if they did not arise out of the civil disobedience movement. It is obvious that at the time that that order was made there must have been many cases having nothing to do with the civil disobedience movement pending investigation before the police or pending in the Courts of Magistrates who had not yet taken cognizance of them. And even after that movement had begun, many offences were committed which had nothing to do with the movement. One may assume that the ordinary activities of the criminal classes (including dacoits) did not cease by reason of that movement, and, on a strict reading of Mr. Dhar''s orders, it would appear that he directed offences of dacoity to be tried by Special Judges when arising out of the civil disobedience movement and by Special Magistrates when they did not so arise. Mr. Dhar was succeeded by Mr. Lucas as District Magistrate of Champaran. Mr. Lucas made an order expressed to be in continuation of Mr. Dhar''s order of 22nd September 1942, directing that offences under Sections 395, 397, 398, 399 and 411 to 414, Penal Code, should ordinarily be tried by Special Magistrates unless otherwise specially directed. This order is dated 5th November 1942, and was issued with Memo No. .20288-39, dated loth December 1942. On the same date, that is to say, 5th November 1942, Mr. Lucas made another order, also expressed to be in continuation of Mr. Dhar''s order of 22nd September 1942, directing that offences under Sections 395, 397, 398, 399 and 411 to 414, Penal Code, should ordinarily be tried by the Special Judge unless otherwise specially directed. This was issued with Memo No. 20258, dated 10th December 1942. It will be observed that Mr. Lucas did not cancel or rescind Mr. Dhar''s order of 4th and 22nd September 1942, under the latter of which the offence of dacoity (without any qualification as to its arising out of the civil disobedience movement) was triable by Special Magistrates unless otherwise directed. After Mr. Lucas''s orders had been made, the position was, so far as dacoity is concerned, that there were in existence an order of Mr. Dhar dated 4th September 1942, directing that offences of dacoity arising out of the civil disobedience movement should ordinarily be tried by the Special Judge, and another order of Mr. Dhar dated 22nd/23rd September 1942, directing that offences of dacoity (without reference to their origin) should ordinarily be tried by Special Magistrates, and the two orders of Mr. Lucas directing, on the one hand, that offences of dacoity (without reference to the origin) should ordinarily be tried by Special Magistrates and another directing that they should be tried by the Special Judge. This being the state of affairs, Criminal Appeal No. 531 of 1943 was preferred to this Court in a case in which persons in the district of Champaran had been convicted of dacoity the offence having been committed on 3rd August 1942.

The appeal came before my. brother Eeu-ben and myself, and the view we then took was that the last of Mr. Lucas''s orders gov-erned the matter, and that as the order of Mr. Lucas which was issued with Memo. No. 20258-59, dated 10th December 1942, was the last order, the offence of dacoity in the district of Champaran was triable by the Special Judge. That view was followed without question in a number of cases which came to this Court subsequently in which the appellants had been convicted of dacoity by Special Courts in the district of Champaran. When the present application came for hearing before my learned brothers Chatterji and Shearer however Shearer J. pointed out that the numbering of the forwarding memos, accompanying the various orders of the District Magistrate of Champaran was not an indication of the chronological order in which the orders were made. I have not experience of my learned brother Shearer in the matter of the routine followed in the offices of District Magistrates. I have no doubt that he is right in this respect. I regret however that I do not find myself able to accept the view which he and my brother Chatterji took with regard to the effect of the orders made by Mr. Lucas. The view they took was that the effect of the orders was to confer concurrent jurisdiction on Special Magistrates and Special Judges to try the'' offences mentioned in Mr. Lucas''s orders. Apart from the fact that Mr. Dhar appears to have made a distinction between dacoities arising out of the civil disobedience movement and other dacoities, and that Mr. Lucas''s orders were expressed to be merely in continuation of Mr. Dhar''s and not in supersession of them, there is a further difficulty with which I now propose to deal.

The Ordinance of 1942 provides for the setting up of Special Criminal Courts, the jurisdiction of which was limited to the trial of offences and cases which the Provincial Government or a servant of the Crown empower, ed by the Provincial Government should direct by general or special order in writing to be tried by such Courts. Section 5 of the Ordinance provides that 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. Section 10 provides for the trial by Special Magistrates of such offences or classes of offences or such cases or classes of cases, other than offences or cases involving offences punishable under the Penal Code with death, as the Provincial Government or a servant of the Crown empowered by the Provincial Government in this behalf may, by special or general order in writing, direct. The jurisdiction of Summary Courts constituted under the Ordinance is also limited by Section 16 to offences or classes of offences or cases or classes of cases which the District Magistrate or in a Presidency Town the Chief Presidency Magistrate, or a servant of the Crown authorised in this behalf by the ''District Magistrate or Chief Presidency Magistrate, may, by general or special order, direct. In this province it was the District Magistral of each district who was empowered by the Provincial Government as a servant of the Crown to decide which offences and cases should be tried by Special Judges or Special Magistrates, respectively. The question that falls to be decided is whether it was competent to the District Magistrate in exercise of the powers conferred on him, to direct that the same offences, or classes of offences, or cases or'' classes of cases, should be triable both by the Special Judge and by Special Magistrates. The view taken by my learned brothers Chatterji and Shearer is that the District Magistrates were so empowered, and if the view be correct, the present application must be dismissed.

Two things are clear from a perusal of Sections 5, 10 and 16 of the Ordinance: first, that none of the Special Courts had jurisdiction to try any offence or case except as directed by a general or special order in writing made by the proper authority, and, secondly, that in this province it was the District Magistrate who has to decide which offences and cases should be triable by Special Judges and Special Magistrates, respectively. If it were competent to the District Magistrate to make a general order that all offences or all offences of a particular class, or all eases of a particular class, should be triable either by the Special Judge or by the Special Magistrate, the question would arise in each particular case whether it was to be tried by the Special Judge or by one of the Special Magistrates. "Who was to decide this matter? It is suggested that the Court to which the case happened to be sent by the Sub-divisional Magistrate would be the Court that would deal with it. If this be so, then the jurisdiction of the Special Courts to try any particular case was derived not from the Provincial Government, or the District Magistrate, but from the Sub-divisional Magistrate. The validity of the contention may be tested in this way: the District Magistrate had power u/s 5 to direct that a particular case should be tried by a Special Judge, or u/s 10 to direct that it should be tried by a Special Magistrate. Suppose that, in a particular case, he had directed it to be tried either by the Special Judge or by a Special Magistrate or, had made two orders, as in the present instance, one directing that the case should be triable by the Special Judge and another directing that the same case should be triable by a Special Magistrate. It is obvious that in such circumstances it would not be known which Court was intended to try the case and the Courts of the Special Judge and the Special Magistrates would be left to scramble for jurisdiction. The construction contended for, therefore, appears to me to amount to a reductio ad absurdum, and, under the well-known rule of construction of statutes, a statute should be so interpreted as to avoid such a result. AsLindley L. J. observed in The Duke of Buccleuch (1889) 15 P. D. 86:

you are not to attribute to general language used by the Legislature in this case, any more than in any other ease, a meaning which would not carry out its object, but produce consequences which, to the ordinary intelligence, are absurd. ''Sou must give it such a meaning as will carry out its objects.

To my mind, it is patently clear that the Legislature intended that the power to decide which of the Special Courts constituted under the Ordinance should try a particular case should be decided by one of the authorities mentioned in the Ordinance itself, namely, the Provincial Government, or a servant of the Crown empowered by the Provincial Government. The Ordinance should be construed to give effect to this intention and not in such a way that the. power of determining the jurisdiction of the Special Courts should be found to rest in fact with some one else. If that be the position with regard to particular cases, as I think it is, it is also the position with regard to offences generally or classes of offences or classes of cases, all of which are on the same footing as particular cases. Mr, Lucas''s orders appear to me to be mutually contradictory and should not be regarded as valid orders. This leaves the matter to be governed by Mr. Dhar''s orders. As the present case arose out of an ordinary dacoity at a private house and had nothing to do with the civil disobedience movement, it was triable by a Special Magistrate under the second of Mr. Dhar''s orders, and was so tried. The convictions and sentences were, therefore, passed by a Court competent to pass them. I would, therefore, dismiss this application.

Shearer, J.

I, too, am of the opinion that this application must be dismissed. The petitioners were tried by a duly constituted Court. They were brought before that Court in a regular manner, on a charge-sheet submitted against them by the police, after an investigation into the dacoity in which they were said to have been concerned. They had an opportunity of defending themselves and they did defend themselves, being apparently represented by a pleader. The tribunal which tried and convicted them had, it is clear, jurisdiction over their persons. Had it also jurisdiction over the subject-matter, that is, over the crime for which they were tried ? The extent of the jurisdiction of the Courts of Special Magistrates is defined in the Ordinance by which these Courts were created as being to try

such offences or classes of offences, or such cases or classes of cases other than offences or cases involving. offences punishable under the Indian Penal Code with death, 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.

It is admitted that the Provincial Government delegated the power conferred on it to District Magistrates and it is also admitted that, on 5th November 1942, the then District Magistrate of Champaran, Mr. L. J. Lucas, made an order directing Special Magistrates in that district to try the offence of dacoity. It is clear that that order was intra vires of the power conferred on him, as dacoity is not one of those offences which are punishable with death. That is enough, in my judgment, to dispose of the application. But it so happened that, on 5th November 1942, Mr. Lucas also made another order directing the Special Judge to try the offence of dacoity. The proper construction and effect of these two orders was considered by Division Benches of this Court in Adalat, Nonia v. Emperor Cri. Appeal No. 531 of 194 and Sukhram Mahton v. Emperor Criminal Appeal No. 485 of 1943, and the view taken by my brother Agarwala, who delivered the judgments in each case was that the order directing the Special Judge to try this offence had been made after the order directing the Special Magistrates to try it and ought, in consequence, to be deemed to have rescinded that order.

The reasoning by which this conclusion was arrived at was based on the mistaken assumption that each of the two orders bore a serial number. This was not so. While my brother Agarwala concedes this he now takes the view that both the orders were null and void and that, in order to ascertain whether a trial in Champaran by a Special Judge or a Special Magistrate of a person charged with dacoity was a legal trial, it is necessary to ignore the orders made by Mr. Lucas and to look to two orders made by his predecessor Mr. Dhar. If this is correct and if the construction put by my learned brother on the orders of Mr. Dhar is also correct, certain very awkward consequences are bound to ensue. For one thing, every person who has been convicted either by the Special Judge or by a Special Magistrate-in Champaran of an offence under Sections 411, 412, 413 and 414, Penal Code, will be entitled to assert that his trial was void. For another, every person who has been convicted of dacoity by the Special Judge will be entitled to assert that his trial was void if the dacoity in which he was concerned did not " arise out of the civil disobedience movement" words which are themselves, by no means, free from ambiguity. This Court is, of course, bound to apply , the law as it finds it and is not entitled to strain or distort the law in order to avoid producing consequences which may be unfortunate. But before declaring the law to be such that consequences highly detrimental to the proper administration of criminal justice are bound to ensue, it behoves this Court to exer. cise the utmost caution and vigilance. That extravagant results are likely to be produced by taking a certain view of the law is in itself, at least, a good reason for doubting whether that view can be the correct one. I have, therefore, taken time to consider and study the judgment of my learned brother and, after having given the matter my most anxious consideration, I feel bound to say, with the greatest respect, that I adhere to the view taken by my learned brother Chatterji and myself in the order of reference that the two orders of Mr. Lucas are valid orders. In making one of the two orders which he did, Mr. Lucas was exercising the power conferred by Section 5 of the Ordinance and in making the other he was exercising the power conferred by Section 10. That, I imagine, is why he made two separate orders and also why the orders are in precisely the same form except that in one the words "Special Magistrates" occur and in the other words "Special Judge."

There is no ambiguity in either of the orders and to say that they are mutually contradictory is not correct. Even if a statute or status tory order is ambiguous, it is the bounden duty of the Courts to construe it and to say what the intention of the legislature or of the authority which made the order must be deemed to have been. It cannot get rid of its obligation by ignoring the statute or order and proceeding as if it had never been made. But what Mr. Lucas intended is, I think, quite plain and why he intended it is also quite plain. As I have already pointed out, if every case of dacoity in the district of Champaran had had to be tried by the Special Judge there would have been very great delay in disposing of these cases. In order to avoid this, Mr. Lucas, therefore, decided that dacoity'' cases should be tried by Special Magistrates as well as by the Special Judge. The order directing the Special Judge to try the offence of dacoity was an order which could properly be made u/s 5 and the order directing Special Magistrates to try the offence of dacoity was also an order which could properly be made u/s 10, as the offence of dacoity is not punishable with death. Each of the two orders was thus an order intra'' vires of the power under which it was made and I find it difficult to understand how it can possibly be held that merely because Mr. Lucas made both orders simultaneously he was exercising the powers conferred on him in a manner which was not merely indiscreet or inadvisable but was contrary to and for-'' bidden by law. The ground on which my learned brother pronounces both orders null and void is that the result of them in practice was that the Sub-divisional Magistrate exercised a discretion as to whether a particular case of dacoity should be tried by a Special Magistrate or by the Special Judge. The Legislature, he says, intended that

which of the Special Courts constituted under the Ordinance should try a particular case should be decided by one of the authorities mentioned in the Ordinance itself, namely, the Provincial Government, or a servant of the Crown empowered by the Provincial Government

who, in this province, was the District Magistrate. District Magistrates were, no doubt, empowered to direct that a particular case should be tried by the Special Judge; that a particular case, provided it did not involve an offence punishable with death, should be tried by a Special Magistrate and, that a particular case, provided it did not involve an offence punishable with imprisonment for a term exceeding two years, should be tried by a summary Court. But the intention of the Legislature also was that general orders should be made, defining the jurisdiction of each of the special Courts. For any District Magistrate to have himself decided by which of the special Courts every single case in his district should be tried would have been quite impracticable. It would, of course, in theory, have been possible for general orders to have been made directing the Special Judge to try one set of offences, Special Magistrates to try another and quite separate and distinct set of offences and summary Courts to try yet a third set of offences. That, indeed, is what many District Magistrates did or rather attempted to do." But it was bound to have and did, in fact, in several cases which have come to my notice, have unfortunate results. Unless a Special Judge was empowered, as a Court of Session is empowered, u/s 28, Criminal P. C, to try many minor offences, which would ordinarily have been tried by Special Magistrates or summary Courts, the Special Judge was disabled from trying an accused, person for all offences committed in one transaction and from convicting and punishr ing an accused person charged with a major offence if the evidence showed that he had, in fact, committed, a minor offence. In other Words, the fullest possible use could not have been made by the special Courts of, the provisions contained in Sections 235 and 288, Criminal P. C, and that, I think the Legislature can scarcely have intended. My learned brother has observed that as a res,ult of the two orders of Mr. Lucas

the jurisdiction of the special Courts to try any particular case of dacoity was derived not from the Provincial Government or the District Magistrate, but from the Sub-divisional Magistrate.

With the greatest respect I am quite unable to agree. The jurisdiction of every criminal Court to try a particular offence is derived from statute, either, from the statute which creates the Court or from the statute which defines the offence {see Bailey on Jurisdiction Vol. 1, p. 486). The special Courts were not and could not be any exception to this ordinary rule. The extent of their jurisdiction was denned in Sections 5, 10 and ,16 of the Ordinance. It is true that the legislature did not define it with complete exactitude itself and that it contented itself with prohibiting special Magistrates and summary Courts from trying certain offences and delegating to the executive the power to direct which other, offences each of these Courts and which offences the. Court of the Special Judge should try. In effect, what the District Magistrate did,, when he made an order under either Section 5 or Section 10 of the Ordinance, was to exercise a power of subordinate legislation. Under Sections 174 and 190, Criminal P., C. which were not affected by the Ordinance charge-sheets had to be sent to the Sub-divisional Magistrate and the Sub-divisional Magistrate had to, decide to which Court each case should be transferred. Under the ordinary law a discretion of that kind, is exercised every day by Sub-divisional Magistrates. Every day Sub-divisional Magistrates have to decide whether a particular case should be tried by a superior Court or by an inferior Court and in the non-regulation districts at least they have to decide whether a case of dacoity should be tried by a Magistrate empowered u/s 30 of the Code or by the Court of Session. Why should it be assumed that the Legislature intended to deprive the Sub-divisional Magistrate of that discretion? How can it fairly and properly be said that when a Sub-divisional Magistrate in Champaran decided to send a charge-sheet in a dacoity case to a Special Magistrate instead of to the Special Judge, he was usurping the power conferred by the Legislature on the Provincial Government or its nominee to direct, by special order in writing, that that particular case should be tried by a Special Magistrate? It is necessary to bear in mind the distinction between jurisdiction over the subject-matter of offence and jurisdiction over the person. When the Sub-divisional Magis, trate sent the charge-sheet to some Special Magistrate, and the police thereafter took steps to produce the accused person in the Court of that Special Magistrate, the Special Magistrate no doubt thereby obtained jurisdiction over his person. But his jurisdiction over the offence of dacoity was derived from the general order of the District Magistrate directing him to try that offence. When a District Magistrate made a special order in writing that a particular case should be tried by a particular'' Court, then that Court was bound to try it, and provided, of course, that the order was one which the District Magistrate was empowered to make, it had exactly the same effect as if the order had been embodied in the Ordinance. But when a Sub-divisional Magistrate sent a charge-sheet to one of the special Courts, then the mere recording by him of some such order as "To A. B. Special Magistrate for disposal" produced results which were very different. The Special Magistrate was not entitled to proceed to try the case unless the offence was one which he had been directed by the general orders of the District Magistrate to try. If he had not been directed to try it he was, in fact, bound not to try it and to return the charge-sheet to the Sub-divisional Magistrate. This Court has, in a number of cases, held that when a Sub-divisional Magistrate inadvertently transferred a case to a Special Magistrate and the Special Magistrate inadvertently tried and convicted a person of an offence, which he had not been directed by the District Magistrate to try, the trial was void.

My learned brother by way of supporting the conclusion at which he arrives postulates a hypothetical case in which a District Magis, trate recorded an order: "I direct this case to be tried either by the Special Judge or by a Special Magistrate." I have no doubt myself that whether the case was eventually tried by the Special Judge or by a Special Magistrate the trial would have been a legal trial. There is no difficulty in understanding the order and the maxim id voluit quod dixit must apply. The District Magistrate must be presumed to have intended what he said and what he said was, in effect: "By which of the two Courts this case is tried is immaterial, but it must be tried by the one Court or the other." With great respect, I must say that I think my learned brother attaches a quite exaggerated importance to something that occurs prior to the commencement of the trial, to the steps taken to bring the accused before the Court or to the manner in which the Court obtains seisin of the case. Where a Court has jurisdiction to try an offence it is, as a rule, immaterial whether it has taken cognizance of the offence without being empowered to do so or whether the case has been transferred to it by another Court which was not empowered to make the order of transfer. Clauses (e) and (f) of Section 529, Criminal P. C, provide that the commission of some irregularity of this kind prior to the commencement of the trial does not vitiate the trial itself.

The provisions of the Ordinance which we have to construe are contained in Sections 5 and 10 and my learned brother would read into the language there used an implied prohibition against the powers thereby conferred being exercised in such a way as to give concurrent jurisdiction to the Courts of Special Magistrate and the Court of the Special Judge. In doing so, my learned brother invokes the aid of the doctrine which is usually known as the doctrine of "absurdity or repugnance." But how can it be said that it was absurd on the part of the Legislature to confer, or enable Provincial Governments or District Magistrates to confer, concurrent jurisdiction on the Courts of the Special Judge and the Special Magistrates ? Under the ordinary law, the Courts of Session and the Courts of Magistrates exercise concurrent jurisdiction to try a great many offences. Is there then in any other part of the Ordinance a prohibition against concur rent jurisdiction being conferred on these Courts? I am unable myself to find any. On the contrary, it is to be observed that, while the authority which was to define the extent of the jurisdiction of the Courts of Special Magistrates was the Provincial Government or a servant of the Crown empowered in that behalf by the Provincial Government, the authority which was to define the extent of the jurisdiction of special Courts was the District Magistrate. The possibility of the Provincial Government, sitting at Patna or Ranchi, directing Special Magistrates to try some particular offence and some District Magistrate elsewhere directing summary Courts to try the same offence must be presumed to have been present to the mind of the Legislature. That it was, in fact, present appears to me to be indicated by what is contained in Clause (b) of Sub-section (2) of Section 20. But as I understand the doctrine of absurdity and repugnance, there is no room for its application except in a case where the Legislature has used language which is ambiguous or at least is susceptible of more than one meaning. The limitations on the doctrine were clearly indicated by Lord Macmillan in his speech in Altrincham Electric Supply Limited v. Sale Urban District Council (1936) 154 LT 379 Lord Macmillan there said:

I do not doubt that, if the language of an enactment is ambiguous and susceptible of two meanings, one of which is consonant with justice and good sense while the other would lead to extravagant results, a Court of law will incline to adopt the former and to reject the latter, even although the latter may correspond more closely with the literal reading of the words employed. I also recognise that it is a legitimate process of interpretation to qualify the literal meaning of particular words or phrases in an enactment if the context plainly shows that the words or phrases are being used in a special sense. But in the present case the enacted words are not in my opinion ambiguous or susceptible of two readings, nor do I find any context in the order which would justify any qualification of their ordinary meaning. A Court may construe the language of an Act of Parliament but may not distort it to make it accord with what the Court thinks to be reasonable.

Very similar observations were made by Lord Field in the well-known case in Cox v. Hakes (1890) 15 ACC 506. Lord Field there said:

Now the admitted rules of construction, from which I am not at liberty to depart, lay down that I cannot infer an intention contrary to the literal meaning of the words of a statute, unless the context, or the consequences which would ensue from a literal interpretation, justify the inference that the Legislature has not expressed something which it intended to express, or unless such interpretation (in the language of Parke B. in Becke v. Smith (1836) 2 M&W 191 leads to any manifest ''absurdity or repugnance'', with this superadded qualification that the absurdity or repugnance must be such as manifested itself to the mind of the law-maker, and not such as may appear to be so to me.

The words contained in Sections 5 and 10 of the Ordinance are in themselves precise and unambiguous. In exercise of the power conferred by the one section, Mr. Lucas could direct a Special Judge to try the offence of dacoity and in exercise of the power conferred by the other section he could direct Special Magistrates to try the offence of dacoity. That being the position, I see no escape from the conclusion that the Legislature intended that concurrent jurisdiction might be conferred on both Courts to try this particular offence. The writ of habeas corpus was devised in order to ensure that persons detained in custody should be speedily tried. In times of danger to the state or of civil commotion the Habeas Corpus Acts have frequently been suspended not only in Great Britain itself but also in the Dominions and in the United States of America and the Judges have by the suspending Acts been disabled from granting the writ to certain classes of persons, most frequently persons charged with treason or treasonable practices. My own view is that in enacting Section 26 of the Ordinance the Legislature intended that this Court should be similarly disabled from granting the writ to certain classes of His Majesty''s subjects namely, to those who had been brought before one or other of the special Courts. It is too late in the day and will serve no useful purpose now to consider whether the Legislature used language sufficient to give effect to that intention. Since the Federal Court permitted the writ to be used for the purpose of challenging the validity . of the Ordinance by which the Bpecial Courts were established, it was inevitable that the writ should also be used for the purpose of challenging the validity of a trial held by one of the special Courts. Until the decision in Adalat, Criminal Appeal No. 531 of 19432 this Court had, however, always refused the writ when it was shown that the petitioner was detained under a judgment of one of the special Courts, and that prior to the commencement of his trial a general or special order had been made which was intra vires of the power under which it was made and ex facie empowered the special Court to try the offence of which the petitioner was convicted. I do not myself see why this Court should go behind an order of that kind and look to other orders made by the District Magistrate for the purpose of ascertaining whether a doubt may not arise as to whether the petitioner should not have been tried by the Special Judge rather than by a Special Magistrate. '' For one thing, Section 14 of the Ordinance itself provides that a question of that kind has to be decided by the authority which made the order and the decision of that authority is to be final. For another, when a prisoner is serving a sentence of imprisonment, under a judgment of one of the established Courts of the land there must rest on him a very heavy onus to show that the judgment is a nullity and he does not, in my view, satisfactorily discharge that onus by showing merely that some doubt may exist as to whether he ought not to have been tried, not by that Court, but by some other Court. He must, I think, show affirmatively that the Court had no jurisdiction to render the judgment against him at all. And finally, as my brother Chatterji suggested in his order of reference, is the sentence in any case not validated by Section 3 of Ordinance 19 of 1943.

The writ of heabeas corpus was carried across the Atlantic as part of the Common law by those Englishmen who founded the North American Colonies and when eventually these Colonies united to form the United States of America the writ came to be used to impeach the validity of laws passed by the State or Federal Legislatures. It is clear that if a person has been convicted and sentenced for an act made punishable by a statute which is ultimately found to be unconstitutional he is being wrongly restrained of his liberty. By analogy the writ may also perhaps be used to challenge the validity of a law setting up special Courts or, as a necessary corollary by reason of the manner in which Sections 5, 10 and 16 of the Ordinance are drawn, to challenge the jurisdiction of one or other of the special Courts to try a particular individual. But I cannot understand why, in the latter case, if the special Court is found to have acted without jurisdiction the individual should be forthwith ordered to be released. On one of the earliest of these applications which came before one of my learned brothers, I think, my brother Meredith and myself but I cannot be certain as I have been unable to trace the record, we made an order that a person who had been tried and convicted by a special Court which had acted without jurisdiction should be brought before a Court competent to try him. That decision has never, I believe, been followed by other benches and I have myself been a reluctant but consenting party to orders directing that persons who have been convicted by the special Courts should be released. I still think, however, that the order which my brother Meredith and myself made in that case was the proper order and I now find some support for it in the Canadian Prisoners'' case In the matter of Parker (1839) 5 M. & W. 32. That was a case in which certain prisoners charged in Canada with treason had agreed to being transported on condition of receiving a pardon. They had not been tried and when they arrived in England on their way to Van Diemen''s Land they asserted that they had not consented to be transported and that their detention was unlawful. In refusing a writ of habeas corpus Lord Abinger said:

How then can we order the gaoler of Liverpool, or any other person who has him in custody, with knowledge of these circumstances, to let him go at large ? If the prisoner cannot be lawfully transported under his present circumstances, it is to be presumed that the Government, upon being so certified, will take proper measures for prosecuting him for the crime of treason in England. For these reasons we are of opinion that the prisoner must be. remanded.

This Court has been and always will. be ready to use its powers to prevent His Majesty''s subjects, even in time of war, from being deprived of their personal liberty by some act of the executive which is in excess of the powers conferred on them. But it ought also to be jealous to see that the great writ of habeas corpus is not allowed to be put to some improper use for which it was never intended. In no view of the matter are persons who have been convicted by one of the special Courts entitled to their personal liberty. The petitioners may ask to be released but what they really seek is an opportunity of being tried over again, when, after the lapse of more than two years, some of the evidence on which they were convicted may not now be available and for that or any other reasons they may escape further punishment. This Court ought not and, in my judgment, is not entitled to make any order u/s 491, Criminal P. C, in respect of a person who has been regularly tried and convicted by a special Court unless a complete absence of jurisdiction on the part of the special Court to try him has been conclusively shown and the order which it makes ought I also think to be an order that he be remanded to custody as an under-trial prisoner and brought without delay, before a Court competent to try him unless there are circumstances which would justify his being enlarged on bail.

Sinha, J.

I have had the advantage of perusing the judgments prepared by my brothers Agarwala and Shearer JJ. and I agree with them that the application must be dismissed on the ground that the trial held by the Magistrate was with jurisdiction. As my learned brothers have disagreed as to the effect of the several notifications issued by the two successive District Magistrates of Champaran, I have taken time to consider the reasons given by them for their respective conclusions. During the course of the arguments at the Bar, I was inclined to the view that the later orders passed by Mr. L. J. Lucas on 5th November 1942, were ineffective to confer the respective jurisdictions on the Special Judge and on Special Magistrates which they have purported to do. But, on further consideration, I agree with my brother Shearer in the view which be has taken on the legal position in the matter. A I agree generally with the reasons given by him for taking the view that the orders passed by Mr. Lucas were effective to confer jurisdiction on special magistrates to try cases of dacoity, I need not cover the same ground over again. The ordinance creating the special Courts does not contain any provisions militating against conferment of concurrent jurisdictions empowering the trial of similar offences by two Courts which have not got co-ordinate jurisdiction in all matters''. Hence, the notification issued by Mr. Lucas on 5th November 1942, making the offence of dacoity triable both by the Special Judge and by Special Magistrates, must be held to valid. It must be held, therefore, that the trial of the petitioners in this case by the special Magis trate was not without jurisdiction. I would accordingly hold that there are no merits in his application which must be dismissed.