LexEDWARD EZRA AND ANOTHER versus THE STATE OF WEST BENGAL
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- - S.C.R. SUPREME COURT REPORTS EDWARD EZRA AND ANOTHER v. THE STATE OF WEST BENGAL [MuKHERJEA, S. R. DAs and VIVIAN BosE JJ.] 1025 West Bengal Criminal Law Amendment (Special Courts) Amendment Act, 1952 (West Bengal Act XII of 1952), S. 12-Conviction under Criminal Law Amendment Ordinance No. XXIX of 1943 set aside by High Court-High Court directing the retrial of the accused by a competent court if Government chose to pro- ceed against them-Retrial under West Bengal Act XII of 19.52- V alidity of. Section 12 of the West Bengal Act XII of 1952 provides: "Nothing in this Act shall apply to any proceedings pending on the date of the commencement of the West Bengal Criminal Law Amendment (Special Courts) Amending Ordinance 1952 in any court other than a Special Court". On appeal taken by the appellants to the High Court of Cal- cutta against their conviction by the First Special Tribunal Calcutta constituted under the Criminal Law Amendment Ordinance of 1943, the High Court set aside the conviction on the ground, inter alia, that the Special Tribunal was not properly constituted. The High Court directed that the accused should be retried in accordance with law by a court of competent jurisdiction, it being left to the State Government to decide whether actually the trial should be proceeded with or not. On the 30th July 1952 the West Bengal Act XII of 1952 came into force following an Ordinance laying down similar provisions which amended in certain respects the provisions of the West Bengal Criminal Law Amendments (Special Courts) Act of 1949. In August 1952 three Special Courts were constituted by a notification of the Government of West Bengal, one of them being described as West Bengal Second Special Court. The case against the appellants was allotted to this second court for trial. It was contended on behalf of the appellants that s. 12 of the West Bengal Act XII of 1952 was a bar to the trial of the ·pre- sent case under the Act and that under the orders of the High Court passed in the appeals it was the original case which was commenced before the First Special Tribunal Calcutta under Central Ordinance XXIX of 1943 which was being retried by the Special Court consti- tuted under West Bengal Act of 1952. The present case was pending before the High Court on the 9th April 1952 which was the date of the commencement of the West Bengal Ordinance preceding the Act and to such cases the provisions of the Act had been made expressly inapplicable by s. 12 and that the present case was nothing . but a continuation of the original case which was tried by the First Spe- 1954 November 30· 1954 ..Edward Ezra and Another v. The State of West Bengal 1026 SUPREME COURT REPORTS [1955] cial Tribunal Calcutta under the Ordinance of 1943 and against the decisions of which appeals were taken to the High Court . Held, (repelling the contention) that what was pending before the High Court on the 9th April, 1952 were the appeals taken by the appellants (and their co-accused) against the judgment of the First Special Tribunal Calcutta constituted under the Central Ordi- nance XXIX Of 1943 and in order to attract the operation of s. 12 it was necessary to show that the proceedings which were pending before the Special Court under \Vest Bengal Act XII of 1952, were pending before a Court other than a Special Court on 9th April 1952. The expression "proceedings in a court other than a Special Court" occurring in s. 12 means and refers to proi:eedings relating to the trial of a case in the original court and not to proceedings in ap- peal. The object of the legislature in enacting s. 12 was that cases pending before an ordinary or a non-special court at the date when the Ordinance came into existence and \vhich were being tried in the ordinary \vay should not be brought to trial or tried by the special Court in spite of the provisions of the new section 4(1) introduced by the Ordinance into the Act. This reason manifestly could have no application to appellate proceedings for there could be no ques- tion of cases pending in appeals being allotted to special courts for trial. How the case \Vas to proceed further if the appellate court directed a rehearing would depend entirely on the order which the appellate court passed and was con1petent in law to pass. Accordingly_, as the High Court did not acquit the accused or make an order of discharge
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