Dhirendra Kumar Mandal vs The Superintendent Andremembrancer Of Legal Affairs

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 48 of 1952

Decision Date: 20 April 1954

Coram: Mehar Chand Mahajan, B.K. Mukherjea, Vivian Bose, Natwarlal H. Bhagwati

In this matter, the petitioner Dhirendra Kumar Mandal challenged a notification issued by the Superintendent Andremembrancer of Legal Affairs. The judgment was delivered on 20 April 1954 by the Supreme Court of India. The opinion was authored by Justice Mehar Chand Mahajan, with the participation of Justices B.K. Mukherjea, Vivian Bose and Natwarlal H. Bhagwati. The case is reported in 1954 AIR 424 and 1955 SCR 224, with subsequent citations appearing in several law reports. The dispute centred on the operation of the Constitution of India, particularly Article 14, and on provisions of the Criminal Procedure Code (Act V of 1898), namely sections 269(1) and 536. The petitioner contended that a notification issued under section 269(1) denied him the right to a trial by jury, whereas that right was preserved for other persons accused of the same or similar offences. He further argued that any defect in the trial could be cured by the remedial provisions of section 536.

The Court observed that trial by jury, while a valuable right, is not guaranteed by the Constitution. Section 269(1) of the Criminal Procedure Code is an enabling provision that empowers a State Government to direct that the trial of all offences or any particular class of offences before a Court of Session shall be by jury, and also authorises the Government to revoke or modify such an order. The Court held that it is permissible for the State to discontinue jury trials in a district for all offences or for a specific class of offences. However, the provision does not empower the State to order a jury trial for a particular case or accused while allowing non-jury trials for other persons charged with the same offence. Nor does it allow different procedural mechanisms, such as juries for some accused and assessors for others, within the same offence. The authority to revoke or alter an order is limited to the scope expressed in the opening words of the section and cannot extend beyond them. Consequently, the 1947 notification that revoked earlier orders and denied certain individuals the right to a jury trial while retaining that right for others who had committed the same or similar offences exceeded the power conferred by section 269(1). The Court therefore declared the notification void and inoperative. In addition, the Court found that the classification embodied in the notification violated Article 14 because it was not based on any real and substantial distinction and was therefore arbitrary and unreasonable.

In this case, the Court observed that the classification introduced by the impugned notification was not grounded in any reasonable relation to the objectives it purported to achieve and was instead arbitrary and lacking any substantial justification. The notification failed to specify, in explicit terms, the criteria on which the particular group of cases was separated from other cases that fell under the same provisions of the Indian Penal Code. Consequently, the Court held that the classification formulated by the High Court bore no connection to the intended purpose of withdrawing jury trials in the matters concerned. The argument advanced that any defect in the trial, if it existed, might have been remedied by the application of section 536 of the Code of Criminal Procedure, on the ground that the objection had not been raised before the trial court, was rejected. The Court explained that section 536 addresses irregularities occurring after the commencement of trial proceedings and does not extend to challenges against a notification issued under section 269(1) of the Code of Criminal Procedure, particularly where such a notification exceeds the authority conferred by that provision or contravenes article 14 of the Constitution. The Court further emphasized that an objection of this nature, which strikes at the very core of the Court’s jurisdiction, may be taken into consideration at any stage of the proceedings. The Court noted that the 1947 notification was patterned on the Ordinance that had been examined in the case of Anwar Ali Sarkar (1952 S.C.R. 284) and listed several authorities cited in support of its reasoning, namely State of West Bengal v. Anwar Ali Sarkar (1952 S.C.R. 284), Queen-Empress v. Ganapathi Vannianar and Others (I.L.R. 23 Mad. 632), Syed Kasim Razvi v. State of Hyderabad (1953 S.C.R. 589), Habeeb Mahomed v. State of Hyderabad (1953 S.C.R. 661), Lachmandas Kewalram Ahuja v. State of Bombay (1952 S.C.R. 710), Kathi Raning Rawat v. State of Saurashtra (1952 S.C.R. 435), and Kedar Nath Bajoria v. State of West Bengal (1954 S.C.R. 30). The judgment then proceeded to set out the criminal appellate jurisdiction, identifying the appeal as Criminal Appeal No. 48 of 1952 filed under article 134(1)(c) of the Constitution of India against the judgment and order dated 21 March 1952 of the Calcutta High Court (justices Das Gupta and Lahiri) in Criminal Appeal No. 77 of 1950, which arose from the order dated 29 April 1950 of the Additional Sessions Judge, Burdwan, in Session Trial No. I of 1950. Counsel for the appellant, the respondent, and the Union of India were noted. The judgment dated 20 April 1954 was delivered by Chief Justice Mehr Chand Mahajan, who reiterated that the appeal contested the High Court’s affirmation of the appellant’s conviction under section 467 of the Indian Penal Code, while the High Court had reduced the sentence imposed by the Additional Sessions Judge of Burdwan. The appeal was identified as part of a series of prosecutions commonly referred to as “the Burdwan Test Relief Fraud Cases,” which originated from the test-relief operations conducted during the Bengal famine of 1943.

The relief activities that took place in the District of Burdwan in the year 1943 were conducted against the backdrop of the severe Bengal famine that afflicted the region during that period. Because the famine had created a condition of acute scarcity and widespread distress among the inhabitants of the district, the authorities deemed it necessary to provide immediate assistance. Accordingly, the District Board, acting on the recommendation of the District Magistrate, initiated a series of “test relief” operations intended to alleviate the suffering of the famine-stricken population. To finance these operations, the Government of Bengal authorized an advance payment of four lakh rupees to the District Board. Instead of executing the relief work itself, the District Board engaged a number of private agents on a commission basis and entrusted these agents with the responsibility of carrying out the test relief programmes. This method of delegation was regarded as a clear contravention of the provisions set out in the Bengal Famine Code and the Famine Manual of 1941. Moreover, because the amount of money being expended was extraordinarily large, the Government grew suspicious about the authenticity and honesty of the relief work being performed through the appointed agents. Consequently, an official inquiry was launched to investigate the matter. The inquiry resulted in the filing of several criminal prosecutions against various individuals, and the case involving the present appellant was one of those prosecutions. After reviewing the circumstances, the Government concluded that the cases arising from the alleged relief fraud were unsuitable for trial by jury. Pursuant to that conclusion, a notification dated 24 February 1947 was issued directing that the said cases be tried before the Court of Sessions with the assistance of assessors, rather than by a jury. The notification, numbered 4591 and dated 17 February 1947, recounted earlier statutory orders: the first order, issued by a notification of 27 March 1893 and published in the Calcutta Gazette, had mandated that, from 1 April 1893, certain offences under the Indian Penal Code in specified districts—including Burdwan—be tried by jury before any Court of Session; the second order, Notification No. 3347-1 of 22 September 1939, published in the Calcutta Gazette on 28 September 1939, had provided that, from 1 January 1940, other specified offences under the Indian Penal Code were likewise to be tried by jury. The 1947 notification then specified that persons alleged to have committed offences under sections 120-B, 420, 467, 468, 471 and 477-A of the Indian Penal Code in the series of prosecutions known as the “Burdwan Test Relief Fraud Cases” would have their trials conducted before the Court of Session at Burdwan, with the assistance of assessors, thereby revoking the earlier jury-trial provisions for those particular offences.

In the matter before the Additional Sessions Judge at Burdwan, the appellant together with six other individuals were committed to trial. The prosecution alleged that the appellant had participated in a conspiracy to cheat the District Board of Burdwan and several of its officers who were responsible for administering the test-relief operations during the period from 21 May to 21 July 1943. The charge was framed under section 420 read with section 120-B of the Indian Penal Code. In addition, the appellant faced twenty-four counts of forgery under section 467 of the same code. According to the case presented by the prosecution, the appellant allegedly forged documents by affixing his own thumb impressions on pay-sheets that were intended to bear the thumb impressions of those who actually received payment for work carried out on a road constructed as part of the relief scheme. The appellant was described as one of the persons appointed by Jnanendra Nath Choudhuri, who acted as an agent, and whose duty was to disburse money to the foremen of the work gangs and to obtain thumb impressions on the pay-sheets as proof of receipt. The prosecution further contended that the appellant, knowing that no payment had been made, deliberately placed his own thumb impressions on a number of the sheets and inserted the names of fictitious individuals opposite those impressions so as to create the appearance that payments had been made to real persons, thereby obtaining unlawful gain for himself and for his employers.

The appellant’s defence put forward two alternative arguments. Firstly, he claimed that the thumb impressions found on the pay-sheets were not his. Alternatively, he asserted that even if the impressions were his, they had been placed with the authority of the persons whose names were shown alongside them, and that he had not acted dishonestly or fraudulently in doing so. After considering the evidence, the Additional Sessions Judge acquitted the appellant and all co-accused of the conspiracy charge under section 420 read with section 120-B. However, the Judge convicted the appellant on eleven specific counts of forgery under section 467 and imposed a sentence of rigorous imprisonment for a period of one year. On appeal, the higher court upheld the conviction on nine of those counts and reduced the term of imprisonment. The appellant challenged the conviction in the High Court on the ground that his trial was marred by a denial of equal protection of the laws guaranteed by article 14 of the Constitution. The High Court dismissed this contention, holding that the trial conducted before the Additional Sessions Judge with the assistance of assessors was a valid trial in accordance with the law. Justice Das Gupta, delivering the judgment of the Court, observed that the government, by exercising the powers conferred by section 269 of the Code of Criminal Procedure, had categorized all the Burdwan Test Relief cases as a single class, thereby affecting the procedural mode of trial for those cases.

The Court observed that, according to the notification, certain individuals were alleged to have committed specified offences before the date of the notification and that these individuals had withdrawn from trial by jury, so that their cases were to be tried with the assistance of assessors. The Court then examined whether this classification satisfied the test previously laid down. In its view, the cases placed in the same class shared a common feature: a large amount of evidence relating to the authenticity of thumb impressions and to the existence or non-existence of particular persons required detailed consideration. The Court noted that dealing with such voluminous evidence would inevitably take a long period of time, making it very difficult, if not impossible, for a juror to keep a proper measure of the evidence. This common characteristic, the Court held, distinguished this class of cases from other cases involving offences under the same sections of the Indian Penal Code. Accordingly, the Court found the classification reasonable with respect to the difference created by the withdrawal of the jury trial, and not arbitrary or evasive. The appellant subsequently made an application to the High Court for leave to appeal to this Court, and the leave was granted. At the time the leave was sought, it was contended that, by a notice of revocation, the State Government could not deprive certain persons of the right to a trial by jury while leaving other persons charged with the same class or classes of offences the right to be tried by a jury. The Bench considered this issue to be of considerable difficulty and suitable for determination by this Court. The learned counsel for the appellant raised two points before the Court. First, he argued that the notification exceeded the powers conferred on the State Government under section 269(1) of the Code of Criminal Procedure and went beyond the scope of that section. Second, he maintained that the notification denied the appellant equal protection of the laws and therefore infringed his fundamental right under article 14 of the Constitution, and that the High Court’s view that the classification was not arbitrary or evasive was incorrect. It may be noted that the Union Government, at its request, was permitted to intervene in this appeal because of the appellant’s contention that section 269(1) of the Code of Criminal Procedure was void for being inconsistent with the provisions of Part III of the Constitution. The intervention, however, became unnecessary after the learned counsel for the appellant abandoned that line of argument at the hearing and did not raise it before this Court. Regarding the two points advanced by the counsel, the Court was of the opinion that both contentions were well founded. The Court held that the notification, in its view, went beyond the ambit of section 269(1) of the Code of Criminal Procedure. That section reads: “The State Government may by order in the Official Gazette, direct that the trial of all offences, or of any particular class of offences, before any Court of Session, shall be by jury in any district, and may revoke or alter such order.”

The provision reads: “shall be by jury in any district, and may revoke or alter such order.” Although trial by jury is undeniably one of the most valuable rights available to an accused, the Constitution does not guarantee that right. Section 269(1) of the Code of Criminal Procedure is an enabling provision that authorises a State Government to issue an order, published in the Official Gazette, directing that the trial of all offences or of any particular class of offences before any Court of Session shall be conducted by jury. The same section also confers on the Government the power to revoke or alter that order. There is no defect in a decision by the State to discontinue jury trials in a district either for all offences or for a specified class of offences. The real issue, however, is whether the State may direct that, for a single case or for a particular accused, the trial in a Court of Session be by jury while, for other cases involving the same offence, the trial proceeds by means of assessors. The language of the section does not empower the State Government to make such a selective direction. A plain construction of the wording shows that the State Government is authorised only to direct that the trial of all offences or of a particular class of offences before any Court of Session shall be by jury in any district. The section does not refer to individual accused persons or to individual cases. It speaks solely of offences or of a particular class of offences and does not contemplate that persons charged with the same offence in different cases could be tried by different procedures—some by jury and others with assessors. The scope of the power to revoke or alter is co-extensive with the power conferred by the opening words of the provision and cannot exceed those words. Consequently, even when exercising the power of revocation, the State Government cannot select a particular case or a set of cases and revoke the notification only for those, while leaving other persons charged with the same offence to be tried by jury. This interpretation of the section was first articulated by Mr Justice Chakravarti and later endorsed by several judges in this Court in The State of West Bengal v. Anwar Ali Sarkar (1). It was observed that a jury trial could not be revoked with respect to a particular case or a particular accused while the order continued to apply to other cases involving the same offence. The citation for that decision is [1932] S.C.R. 284, 326. The notification that is the subject of the present appeal follows the same reasoning.

The Court observed that the impugned notification expressly referred to the accused involved in the “Burdwan Test Relief Fraud” cases and that it did not withdraw from the category of offences that were to be tried by a jury those offences listed under sections 120-B, 467, 468, 477 and similar provisions, irrespective of who committed them or where they were committed. The Court further noted that offences under sections 120-B, 420, 467, 468 and 477 committed by persons other than the named accused remained triable by a Court of Session with a jury.

The Court then compared the wording of the earlier notifications of 1893 and 1939 with the operative portion of the challenged notification. It held that the 27 March 1893 notification ordered that, from the last day of April 1893, the trial of certain offences under the Indian Penal Code in specified districts, including the District of Burdwan, shall be conducted by a jury before any Court of Session. The Court emphasized that this notification made no reference to any particular individual or accused and was framed in completely general terms. Likewise, the notification dated 22 September 1939 directed that, from 1 January 1940, the trial of certain other offences under the Indian Penal Code before any Court of Session shall also be by jury, and this notification likewise employed general language.

In the Court’s view, the first notification created a schedule of offences and mandated that those offences, regardless of the identity of the perpetrators, be tried by a jury. The second notification simply added further offences to that schedule. The revocation order, according to the Court, did not remove any offences from the schedule; it left the list unchanged. What the revocation order did was to deny a specific group of individuals the right to a jury trial while preserving that right for other individuals who had committed the same or similar offences. The Court held that such an action exceeded the authority granted to the State Government by section 269(1) of the Code of Criminal Procedure, rendering the revocation order void and inoperative.

The Court also expressed the opinion that the notification conflicted with the equality guarantee under article 14 of the Constitution. The High Court, however, had rejected this contention, holding that the classification used to withdraw the jury trial in the questioned cases was reasonable, neither arbitrary nor evasive. The High Court reasoned that the cases formed a single class distinguished by the extensive evidence concerning the authenticity of thumb impressions and the identification of persons, which would require a protracted consideration that a juror would find exceedingly difficult, if not impossible, to manage.

The Court observed that article 14 was intended to prevent a particular person or class of persons from being singled out for discriminatory legislation, but it did not require every law to apply universally to all individuals who were not alike in nature, attainment or circumstance. The Court explained that the State was authorised to classify persons for legislative purposes, provided that the classification rested on a real and substantial distinction that bore a just and reasonable relation to the purpose sought to be achieved, and that such classification could not be arbitrary or without a solid basis. The Court noted that the notification at issue failed to specify any grounds on which the particular set of cases was separated from other cases falling under the same sections of the Indian Penal Code. Although the learned judges of the High Court had concluded that the cases were placed in one class because they shared “the common features of a mass of evidence regarding the genuineness of thumb impressions and the existence or otherwise of persons,” which purportedly required extensive consideration and would make it very difficult, if not impossible, for a juror to keep a proper measure of the evidence, the Court disagreed with that reasoning. In the Court’s view, this classification bore no relation to the objective of withdrawing jury trials in those cases. The Court pointed out that a large volume of evidence could also be present in other cases involving the same offence, and that the mere presence of voluminous evidence, or the suggestion that jurors might forget material presented over a long period, did not provide a reasonable foundation for denying the right to a jury trial. The Court further observed that it was difficult to imagine how assessors could be expected to possess a better memory than jurors when faced with extensive evidence requiring lengthy recording. Moreover, the Court recalled that jury trials routinely occurred in many dacoity, conspiracy and murder cases that lasted for months and involved massive evidence, and that the existence of such evidence alone was not a valid reason to withhold a jury trial. Consequently, the Court held that the memory capacities of jurors, assessors, judges or any other persons forming a judgment on the facts could not constitute a reasonable basis for classification, nor could the quantum of evidence in a particular case justify denial of equal protection of the laws.

The Court held that the considerations cited by the High Court could not constitute a reasonable basis for classifying the matter and therefore bore no proper relation to the object sought to be achieved. It observed that the characteristics mentioned by the High Court were common to all cases of forgery, conspiracy, dacoity and similar offences. The counsel for the respondent State, Mr Sen, argued initially that any defect in the trial, if it existed, had been remedied by invoking section 536 of the Code of Criminal Procedure, because the objection had not been raised before the trial Court. The Court rejected this submission as untenable. It explained that section 536 deals with irregularities that arise after the commencement of the proceedings, but it does not address a notification issued under section 269(1) that exceeds the limits of that provision or that contravenes article 14 of the Constitution. The chapter of the Code in which section 536 is situated is concerned only with procedural irregularities committed by a court, and it provides that once an objection is raised, the court may cure the irregularity. The Court said that this reasoning could not be applied to the present case because the court lacked authority to order a trial by jury after the Government had withdrawn its notification concerning such cases. Moreover, the nature of the objection went to the very foundation of the court’s jurisdiction, and such an objection could be taken at any stage of the proceedings.

Mr Sen relied on a decision of the Madras High Court in Queen-Empress v. Ganapathi Vannianar and Others(1). The Court noted that the matter in that decision had not been considered from the perspective raised before it and expressed the view that the Madras High Court decision was not correctly decided. Mr Sen further contended that the notification authorising the trial had been issued in February 1947, three years before the Constitution came into force, and that although the trial had not concluded before the Constitution became operative, the trial that began before the Court of Session with the assistance of assessors was a proper trial and could not be said to have been vitiated. The Court found this argument unconvincing. It observed that if the assessors had functioned as jurors and had delivered a verdict of “not guilty,” as they did in the present case, the accused would have been acquitted unless the Sessions Judge had found sufficient cause to refer the matter to the High Court for quashing the trial. Consequently, the Court concluded that the accused had been prejudiced by a trial that continued after the Constitution’s commencement and that proceeded under a procedure inconsistent with the guarantees of article 14 of the Constitution. The Court further held that the trial was vitiated because the notification that authorised it exceeded the powers granted to the State Government by section 269(1) of the Code of Criminal Procedure. Mr Sen’s contention that the continuation of the trial after the Constitution’s inauguration was valid, based on the February 1947 notification, was therefore rejected. (1) I.L.R. 23 Mad. 632.

In response to the argument that the 1947 notification, even if discriminatory, was not invalid, the Court referred to two earlier decisions of this Court, namely Syed Kasim Razvi v. The State of Hyderabad (1) and Habeeb Mahomed v. The State of Hyderabad (2). The Court held that, contrary to the counsel’s purpose, those decisions actually undermined the contention. Both precedents explain that, to determine whether the accused has been denied the protection of article 14, the Court must first examine whether, after removing the discriminatory provision, the accused can still obtain substantially the same benefits of a trial that would be available under ordinary law; and second, whether those benefits were indeed afforded in the case at hand. The Court found that it is impossible to transform a trial conducted with assessors into a jury trial, and that a jury trial could not be introduced once the procedure prescribed by the notification had become discriminatory. The discriminatory portion of the law cannot be isolated from the remainder, and consequently a fair equality of procedural treatment cannot be secured to the accused in such circumstances. As observed in Syed Kasim Razvi’s case (1), where the normal procedure would be a trial by jury or with assessors, and where no jury or assessor trial existed at the outset, it is not permissible to introduce such a procedure at a later stage. Once a summary procedure has been adopted, the law does not permit a shift to a different procedure thereafter, and the entire trial must be regarded as flawed. The same reasoning was applied by this Court in Lachmandas Kewalram Ahuja v. The State of Bombay (1), which assumed that the Special Court could not avoid the discriminatory procedure after 26 January 1950, rendering the trial invalid. In light of these observations, the Court could not accept the portion of the counsel’s argument that relied on the validity of the notification.

The counsel further suggested, in a subdued manner, that the decisions of this Court in Kathi Ranig Rawat v. The State of Saurashtra (1) and Kedar Nath Bajoria v. The State of West Bengal (2) had weakened the earlier ruling in Anwar Ali Sarkar’s case (3), which had held that the State Government could not single out a particular case and refer it to a Special Court for trial. The Court found this suggestion to be based on a mistaken premise that there exists a genuine conflict between the decision in Anwar Ali Sarkar’s case (3) and the rulings in the Saurashtra and West Bengal cases. Consequently, the Court rejected the contention that the earlier authority had lost its force, affirming that the principle laid down in Anwar Ali Sarkar’s case remains applicable.

The Court noted that the earlier decisions in the Saurashtra case (1) and in the case of Kedar Nath Bajoria (2) were relevant to the present question. The Court expressly stated that whether a special procedural enactment for certain offences is discriminatory and violates article 14 must be decided separately for each case when it arises. Consequently, the Court held that it was impossible to formulate a universal rule that would apply uniformly to all such situations. Various opinions have been expressed regarding the application of article 14 to the facts and circumstances of individual cases, yet there is no disagreement on any principle concerning the construction or scope of article 14. The majority judgment in Kedar Nath Bajoria v. State of West Bengal (2) distinguished the Anwar Ali Sarkar case (3) because the law in Bajoria’s case rested on a classification. In the context of the abnormal post-war economic and social conditions, that classification was readily intelligible and was clearly intended to further the legislative purpose. The Court clarified that this distinction did not cast any doubt on the correctness of the earlier decision. The notification presently under consideration is more akin to the Ordinance that was the subject of the Anwar Ali Sarkar case (3). It bears no resemblance to the Ordinance or to the surrounding circumstances that were examined in the Saurashtra case (1) or in the Bajoria case (2). In view of that decision, the Court must hold that the notification issued in 1947 acquired a discriminatory character when the Constitution came into force and therefore fell foul of article 14. The relevant authorities are cited as follows: (1) [1952] S.C.R. 435; (2) [1954] S.C.R. 30; (3) [1952) S.C.R. 284. Accordingly, the trial of the appellant that took place after 26 January 1950 before the Sessions Judge, assisted by assessors, was improper and must be set aside together with the conviction. The Court expressed that ordering a fresh jury trial at this stage would not serve the ends of justice. Consequently, the appeal was allowed, the appellant’s conviction was set aside, and he was directed to be released.