Registered To : Dip Jyoti Chakraborty

All India Reporter

AIR 1980 SUPREME COURT 1382

SUPREME COURT
(From : Sessions Court, Delhi)*
S. MURTAZA FAZAL ALI , J. and P. S. KAILASAM , J. and ANAND DEV KOSHAL , J.

Criminal Appeals Nos. 492 to 494 of 1979, D/- 11 - 4 - 1980

State (Delhi Administration) Appellant v. V. C. Shukla and another Respondents. (in Crl. A. No.
492/79) Sanjaya Gandhi Appellant v. State (Delhi Admn.) Respondent V. C. Shukla Appellant v.
State (Delhi Admn.) Respondent

(A)Penal Code (45 of 1860), S.120B - Criminal conspiracy - Proof.

In order to prove a criminal conspiracy which is punishable under Section 120-B, there must be direct
or circumstantial evidence to show that there was an agreement between two or more persons to
commit an offence. This clearly envisages that there must be a meeting of minds resulting in an
ultimate decision taken by the conspirators regarding the commission of an offence. It is true that in
most cases it will be difficult to get direct evidence of an agreement conspire but a conspiracy can be
inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement
between two or more persons to commit an offence.
(Para 8)

(B)Evidence Act (1 of 1872), S.101, S.102 - Criminal case - Burden of proof - Duty of prosecution
- The prosecution has to discharge its onus of proving the case against the accused beyond
reasonable doubt.
(Para 8)

(C)Evidence Act (1 of 1872), S.9 - Identification - Value of - Identification of a person by witness

for first time in Court without being tested by a prior test identification parade is valueless.
(Para 23)

(D)Evidence Act (1 of 1872), S.3 - Evidence - Appreciation of - A witness who could go to extent
of making intentionally false statement cannot be relied upon for the purpose of convicting the
accused.
(Para 24)

(E)Evidence Act (1 of 1872), S.133 - Accomplice - Evidence of - Value of - Testimony of an

accomplice cannot be accepted in any material particular in the absence of corroboration from
reliable sources.
(Para 24)

(F)Evidence Act (1 of 1872), S.3 - Evidence - Appreciation of - Circumstantial evidence.

For circumstantial evidence to furnish evidence of guilt it has to be such as it cannot be explained on
any other reasonable hypothesis except the guilt of the accused.
(Para 38)

1
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

(G)Constitution of India, Art.14 - Tests for application of the article - Special Courts Act (1979)
- Validity - Does not contravene Art. 14. Special Courts Act (22 of 1979), Preamble - Validity.

The classical tests laid down for the application of Article 14 are the following :-

(1) The classification must be founded on an intelligible differentia which distinguishes persons who
are placed in a group from others who are left out of the group.

(2) Such differentiation must have a rational relation to the object sought to be achieved by the Act.

(3) There must be a nexus between the differentiation which is the basis of the classification and the
object of the Act.
(Para 52)

The heading of the Special Courts Act (1979) shows that its main object is to provide for the speedy
trial of a certain class of offences. To sum up from the object of the various clauses of the preamble it is
manifest that particular type of persons namely, those who are holding high public or political offices
by way of a trust, have been put in a separate class along with those who have committed offences
during the Emergency and who also bear the same characteristics as those indicated in cl. (4). By and
large, the Act contains almost the same provisions as were contained in the Bill which was sent to the
Supreme Court for its opinion by the President. It is true that the Supreme Court while dealing with
the reference case was not at all concerned with the provisions of the Act which is of much wider
application than the Bill considered by the Court in the reference. The Bill contained provisions for
punishing only those offenders who were accused of offences committed during a particular period,
namely, the period of Emergency. It is also true that the period of Emergency was an extraordinary
one in the history of our country and its features have been spelt out in the preamble of the Bill as also
in the judgment given by the Supreme Court in the reference case. But that by itself does not debar
Parliament from passing a permanent Act to deal with a specified class of persons who occupy high
public or political offices (which are offices of trust) and misuse or abuse them. For the establishment
and continuance of a Parliamentary democracy and to secure efficiency and purity of administration
it is necessary that when such persons commit serious abuse of power and are guilty of a breach
of the trust reposed in them, they would form a special class of offenders. The circumstance that
the Act applies to offences committed at any time by a particular set of persons possessing special
characteristics does not render it unconstitutional, for, when it puts into a class a particular set of
persons having special characteristics which distinguish them from others who are left out of that class
and whom are to be tried under the ordinary law, the classification is eminently reasonable. Further
the classification made has a reasonable nexus with the object sought to be achieved namely, quick
despatch and speedy trials. The Act does not contravene the provisions of Article 14.
(Paras 47 , 48 , 49 , 54 , 58)

(H)Constitution of India, Art.14 - Special Courts Act (22 of 1979), - Validity - Whether invalid
on ground that expression 'High Public or Political Offices' has not been defined. Words and
Phrases - High Public or Political Offices.

The Expression 'High public or political offices' is of well-known significance and bears a clear
connotation which admits of no vagueness or ambiguity. Persons holding high public or political
offices mean persons holding top positions wielding large powers. 'Political office' is an office which
forms part of a Political Department of the Government or the Political Executive. This, therefore,
2
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

clearly includes Cabinet Ministers, Ministers, Deputy Ministers and Parliamentary Secretaries who
are running the Department formulating policies and are responsible to the Parliament. The word
'high' is indication of a top position and enabling the holder thereof to take major policy decisions.
Thus, the term 'high public or political office' used in the Special Courts Act contemplates only

a special class of officers or politicians who may be categorised as follows :-

(1) officials wielding extraordinary powers entitling them to take major policy decisions and holding
positions of trust and answerable and accountable for their wrongs;

(2) Persons responsible for giving to the State a clean, stable and honest administration;

(3) Persons occupying a very elevated status in whose hands lies the destiny of the nation.

The rationale behind the classification of persons possessing the aforesaid characteristics is that they
wield wide powers which, if exercised improperly by reason of corruption, nepotism or breach of
trust, may mar or adversely mould the future of the country and tarnish its image. It cannot be
said, therefore, with any conviction that persons who possess special attributes could be equated
with ordinary criminals who have neither the power nor the resources to commit offences of the
type described above. The term 'persons holding high public or political offices' is selfexplanatory
and admits of no difficulty and mere absence of definition of the expression would not vitiate the
classification made by the Act. It is not only proper but essential to bring such offenders to book at
the earliest possible opportunity. Clause (4) of the preamble of the Act clearly indicates the nature
of the offences that could be tried under the Act. Section 5 which confers powers on the Central
Government to make a declaration clearly refers to the guidelines laid down in the preamble and no
Central Government would ever think of prosecuting holders of high public or political offices for
petty offences.
(Paras 64 , 65 , 68 , 69 , 70 , 71)

(I)Constitution of India, Art.143, Art.141 - Reference to Supreme Court by President - Effect.

Held that in so far as the arguments advanced before the Supreme Court in the Reference Case (1979)
2 SCR 476 were concerned, they were concluded by the decision given thereon and the Supreme
Court in the present appeals did not propose to go behind the opinion given by the Court in that case
or the reasons thereof with which the Court was in respectful agreement.
(Para 49)

(J)Special Courts Act (22 of 1979), Preamble - Validity - Parliament was fully competent to pass
the Bill creating Special Courts.

AIR 1979 SC 478, Foll.

(Para 72)

(K)Special Courts Act (22 of 1979), Preamble - Validity - It cannot be said that the Act seeks to
change the situs of the Court and virtually abrogates Sec. 181 of the Code of Criminal Procedure.

AIR 1979 SC 478, Foll.

(Para 74)

3
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

(L)Constitution of India, Art.14 - Special Courts Act (22 of 1979), - Validity - Not void on
ground of some persons getting special benefit on account of some fortuitous circumstances.

The Special Courts Act cannot be held to be void on the ground that the Act creates an invidious
distinction inasmuch as person holding high public or political offices would have the benefit of trial
by such an experienced officer as a sitting Judge of a High Court while the accused had been deprived
of that right and were tried by a Special Judge who was only a Sessions Judge. The existence of such
fortuitous circumstances cannot attract Article 14. AIR 1963 SC 591 and AIR 1972 SC 828, Rel. on.
(Para 75)

(M)Constitution of India, Art.14 - Special Courts Act (22 of 1979), S.5 - Validity - Not void on
ground of vice of excessive delegation of powers.

It cannot be said that Section 5 (1) suffers from the vice of excessive delegation of powers so as to
violate Article 14 because the discretion conferred on the Central Government is absolute, naked and
arbitrary and is clearly discriminatory. No unguided or uncanalised power has been conferred on the
Central Government. A basic condition imposed on the Central Government is that there must be a
proper application of mind regarding the existence of prima facie evidence of the commission of an
offence. Secondly, the discretion has to be exercised in accordance with the guidelines contained in the
preamble. It is well settled that discretionary power is not the same thing as power to discriminate nor
can the constitutional validity of a law be tested on the assumption that where a discretionary power
is conferred on a high authority, the same may or would be exercised in a discriminatory manner. The
power conferred on the Central Government is controlled by the guidelines contained in the preamble
which by virtue of the provisions of Section 5 (1) becomes a part of that section. As the power is
vested in a very high authority, it can-not be assumed that it is likely to be

abused. On the other hand, where the power is conferred on such a high authority as the Central
Government, the presumption will be that the power will be exercised in a bona fide manner and
according to law. It cannot also be said declarations under Section 5 (1) of the Act could be used as
an engine of oppression against members of parties who are opposed to the ideologies of the ruling
party. Burden lies on the parties alleging bias or malice to prove its existence, and if malice or bias
is proved in a particular case, the Courts would strike down the act vitiated by it, in exercise of its
powers under Articles 226, 227 or 136. So also it cannot be said that the provisions about declaration
contained in Section 5 (1) are violative of the principles of natural justice on the ground that they do
not provide for any hearing being given to the accused before a declaration is made. It is to be borne
in mind that at the stage when the declaration is sought to be made there is no is pending nor has any
prosecution been launched against the accused. Case law rel. on.
(Paras 81 , 82 , 83 , 84)

(N)Special Courts Act (22 of 1979), S.5 - Declaration under after conviction of accused - Validity
- Prima facie case - Meaning of.

Under Section 5, the Government has to be satisfied on two counts before it could issue a declaration.
It must be satisfied in the first instance that there is prima facie evidence of the commission of an
offence. It cannot be said that the condition of the existence of prima facie evidence is not fulfilled
in the case of a declaration merely because the trial in the first Court had ended in a conviction and
an appeal therefrom. If conviction is construed as evidence of the existence of something more than
a mere prima facie case, that would not mean that a prima facie case ceases to exist. That a prima
4
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

facie case must be found to exist is only the minimum requirement for the satisfaction of the Central
Government and it would be doubly made out if the evidence available is stronger than is needed to
make out only a prima facie case. A conviction of an accused person cannot mean that there is no
prima facie evidence against him. All that it spells out is that not only a prima facie case is made
out against him but that the evidence available is even stronger and is sufficient for a conviction.
However, as the Government, while acting under the section, is to satisfy itself only with the existence
of prima facie evidence, the assertion by it in the declaration that such evidence was available to its
satisfaction cannot, by any stretch of imagination, be held to be inapplicable to a case in which a
conviction has been recorded.
(Para 86)

(O)Special Courts Act (22 of 1979), S.13 - Scope - Is directory.

Provisions of Section 13 are purely directory and not mandatory so that if the conditions mentioned in
it are not fulfilled the declaration would not be vitiated. The section does not say that until a declaration
is placed before the two Houses of Parliament it shall not be deemed to be effective, nor does the
section intend that any consequence would result from its non-compliance. AIR 1979 SC 1149, Rel.
on.
(Para 88)

(P)Special Courts Act (22 of 1979), S.5 - Declaration under - Offences committed in a State -
Investigation by Central Agency - Whether basic structure of Constitution is affected.

Where the declaration under Sec. 5 is based on the result of an investigation held by a Central agency
even though the offences were alleged to have been committed in a State, it cannot be said that it
affects the basic structure of the Constitution and is, therefore, void. The doctrine of the violation of
basic structure of the Constitution or the fundamental features applies not to the provisions of a law
made by a State Legislature or Parliament but comes into operation where an amendment made in the
Constitution itself is said to affect its basic features like fundamental rights enshrined under Articles
14, 19, 31 or the power of amendment of the Constitution under Article 368 and so on. The doctrine
has no application to the provisions of a Central or State law because if the statute is violative of any
provision of the Constitution it can be struck down on that ground and it is not necessary to enter into
the question of basic structure of the Constitution at all.
(Para 90)

(Q)Special Courts Act (22 of 1979), S.5, S.6 - Whether conviction falls within the situation
contemplated by S. 5 (1).

It cannot be said that once the case ends in a conviction Section 6 spends itself and there is no room
for the application of Section 5. It is true that

Section 6 does contemplate a prosecution which is relatable to the declaration under Section 5 but
that does not debar the application of Section 5 to other stages of a criminal case, especially those
specifically dealt with under Section 7 of the Act. The limited field in which Section 6 operates does
not therefore exhaust the consequences flowing from the issuance of a declaration under Section 5.
(Para 92)

5
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

(R)Special Courts Act (22 of 1979), S.7 - Applicability - Applies even where appeal or revision
is from prosecution not pending at time of declaration.

The words "whether pending or disposed of" in Section 7 are significant and qualify the immediately
preceding clause "a prosecution in respect of such offence". The legislature has thus taken care to
expressly provide that an appeal or revision would be covered by Section 7 and transferable to the
Supreme Court for disposal if it is directed against a judgment or order made in a prosecution which
is either pending or has been disposed of, the only other requirement of the section being that such
appeal or revision must itself be pending at the date of the declaration. To interpret Section 7 in such
a way that its applicability is limited to appeals or revisions arising from prosecutions pending at the
trial stage at the date of the relevant declarations is possible only if the words "or disposed of" are
treated as absent from the section - a course which is not open to the Court in view of the express
language used.
(Para 94)

(S)Special Courts Act (22 of 1979), S.7 - Section whether conflicts with S. 406 of Criminal P.
C. (1974).

It cannot be said that by providing in Section 7 for an automatic transfer of appeals from the High
Court to the Supreme Courts the legislature has exercised a judicial power which is vested in the
Supreme Court alone under Section 406 of the Code of Criminal Procedure and that the section is
invalid as it conflicts with the said Section 406. There is no question of the exercise of any judicial
power by the legislature in enacting Section 7 which covers a well-known legislative process. By
enacting Section 7 it has merely provided a new forom for the appeals which were pending in the
High Court and in respect of which a valid declaration, fully consistent with the provisions of the Act,
was made - a course which involved no interference with the judicial functions of the Court and was
fully open to the legislature.

AIR 1976 SC 2299, Dist.

(Paras 95 , 96)

(T)Constitution of India, Art.14 - Whether Special Courts Act (1979) is void on ground that it
provides harsher procedure.

In view of finding of the Supreme Court that the classification made by the Special Courts Act
complies with the dual test laid down by the Court and is a reasonable classification, Article 14 would
not be attracted even if the procedure provided by the Act is held to be harsher than that available
under the ordinary law. Apart from that, however, the procedure prescribed by the Act is not harsh or
onerous but is more liberal and advantageous to the accused who is assured of an expeditious and fair
trial thereunder. The procedure regarding appeals is not harsher than that prescribed by the Code of
Criminal Procedure. Even the Code of Criminal Procedure does not provide for any revision against
an interlocutory order. Viewed from any angle, the procedure prescribed by the Act cannot be said
to be prejudicial or less advantageous to the accused, much less harsher or more rigorous than the
one provided in the Code of Criminal Procedure. The procedure for trial of warrant cases gives a
full opportunity to the accused to participate in the trial at all its stages and to rebut the case for the
prosecution in every possible manner and the adoption thereof for trials under the Act would not be
to the disadvantage of the accused.

6
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

AIR 1952 SC 75, Dist.

(Paras 97 , 106 , 110 , 112 , 113)

(U)Constitution of India, Art.21 - Special Courts Act (22 of 1979), - Validity - Does not violate
Art. 21.

Under the Special Courts Act not only is the appointment of a Special Judge made free of control by
the Government as it now rests with the Chief Justice of the High Court concerned subject to the only
condition that he must obtain the concurrence of the Chief Justice of India therefore. A provision for
transfer of cases from one Special Court to another Special Court has also been inserted in Section
10 (1). The Act cannot be challenged on the ground of violation of Article 21 of the Constitution.
(Para 100)

Cases Referred Chronological Paras

AIR 1980 SC 962 81, 110
AIR 1979 SC 478 : (1979) 2 SCR 476 43, 53
AIR 1979 SC 1149 : (1979) 2 SCC 196 : 1979 CRI LJ 927 88
AIR 1976 SC 2299 : (1976) 2 SCR 347 95
AIR 1975 SC 550 : (1975) 2 SCR 832 : 1975 Cri LJ 446 83
AIR 1972 SC 828 : (1972) 1 SCC 421 75
AIR 1971 SC 474 : (1971) 2 SCR 871 83
(1966) 2 QB 330 : (1966) 3 WLR 279 84
AIR 1964 SC 600 : (1964) 5 SCR 683 81
AIR 1963 SC 591 : (1963) 3 SCR 809 75
AIR 1963 SC 728 : (1963) Supp. 1 SCR 573 : (1963) 1 Cri 111
LJ 639
AIR 1961 SC 1602 : (1962) 2 SCR 125 81
AIR 1960 SC 1125 : (1961) 1 SCR 14 51
AIR 1958 SC 956 : 1959 SCR 995 81
AIR 1956 SC 44 : (1955) 2 SCR 925 : 1956 Cri LJ 140 81
AIR 1955 SC 191 : (1955) 1 SCR 1045 : 1955 Cri LJ 374 : 83
(1955) All LJ 309
AIR 1953 SC 156 : 1953 SCR 589 : 1953 Cri LJ 862 105
AIR 1952 SC 75 : 1952 SCR 284 : 1952 Cri LJ 510 114, 116, 121
AIR 1952 SC 123 : 1952 SCR 435 : 1952 Cri LJ 805 81
AIR 1950 SC 211 : 1950 SCR 519 : 1950 All LJ 506 81

Mr. J. S. Vasu, Sr. Advocate (M/s. M. L. Nanda and M. N. Shroff, Advocates with him) (in Cr. A. No.
492 of 1979), Mr. K. L. Arora, Sr. Advocate (M/s. K. G. Bhagat, Harish Gulati, Madan Bhatia and
D. Goburdhan, Advocates with him) (in Cr. A. No. 493 of 1979), and Mr. P. R. Mridul, Sr. Advocate
(M/s. Rajinder Singh, D. P. Sharma, R. C. Bhatia and Vivek Tankha, Advocates with him) (in Cr. A.
No. 494 of 1979), for Appellants; Mr. K. L. Arora Sr. Advocate (M/s. K. G. Bhagat, Harish Gulati
and D. Goburdhan, Advocates with him) (for No. 1) (in Cr. A. No. 492 of 1979), and Mr. Rajinder
Singh, Sr. Advocate (M/s. B. R. Handa and O. P. Sharma, Advocates with him) (for No. 2) (in Cr.
A. No. 492 of 1979), and Mr. Soli J. Sorabjee, Solicitor General of India, Mr. Ram Jethmalani, Sr.
Advocate (M/s. Girish Chandra and S. Markendeya and S.B. Jaisinghani, Advocates with them) (in
Cr. A. Nos. 493 and 494 of 1979), for Respondents.

7
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

* Appeals under Sec. 7 of Special Courts Act. 1979 on transfer from the Delhi High Court from the judgment
and order, D/- 27-2-1979 of the Sessions Court at Delhi in Sessions Case No. 340 of 1978.

Judgement

1. FAZAL ALI, J. :-The appellant V. C. Shukla (hereinafter referred to as 'A-1') in criminal appeal
No. 494 of 1979 has been convicted by the Sessions Judge, Delhi under Section 120-B read with
Sections 409, 435, 411, 414 and 201, Indian Penal Code and also under Section 409, Indian Penal
Code in respect of the positive print and negative and other material of the film 'Kissa Kursi Kaa';
under Section 411 read with Section 109, Indian Penal Code; under Section 414, read with Section
109, Indian Penal Code; under Section 435 read with Section 109, I.P.C.; and under Sec. 201 read
with Section 109, I.P.C. The appellant, Sanjay Gandhi (hereinfafter referred to as 'A-2') in Criminal
Appeal No. 493 of 1979 has been convicted by the Sessions Judge, Delhi under Section 120-B read
with Sections 409, 435, 411, 414 and 201 of the Indian Penal Code and has been further convicted
under Sections 435, 411, 414 and 201, I.P.C. in regard to the negative and other material of the
film 'Kissa Kursi Kaa' as also under Section 409 read with Section 109 of the Indian Penal Code.
Appellant No. 1 was sentenced under Section 120-B read with Sections 409, 435, 411, 414 and 201
to two years rigorous imprisonment; under Section 409 regarding the negative and other materials
to two years rigorous imprisonment and a fine of Rs. 20,000/- and in default further 6 months'
rigorous imprisonment; under Section 409 regarding the positive print of the film to 2 years's rigorous
imprisonment and a fine of Rs. 5,000/- and in case of default further rigorous imprisonment for
three months; under Section 411 read with Section 109 to rigorous imprisonment for one year; under
Section 414 read with Section 109 to rigorous imprisonment for one year; under Section 201 read
with Section 109 to rigorous imprisonment for one year; and under Section 435 read with Section
109 to rigorous imprisonment for one year; The appellant No. 2 was sentenced under Section 120-B
read with Sections 409, 435, 411, 414 and 201 to rigorous imprisonment for two years; under Sec.
435 to rigorous imprisonment for one year and six months and a fine of Rs. 10,000/- and in case of
default further rigorous imprisonment for four months; under Section 411 to rigorous imprisonment
for one year; under Section 414 to rigorous imprisonment for one year; under Section 201 in regard
to the negative, etc., to rigorous imprisonment for one year; under Section 201 in regard to thirteen
trunks, etc., to rigorous imprisonment for one year and under Section 409 read with Section 109 to
rigorous imprisonment for two years. The aforesaid

sentences of imprisonment were ordered to run concurrently in the case of both the appellants.

2. The learned Sessions Judge has given full and complete details of the prosecution case against
the appellants and has divided the allegations against them in several parts. On being convicted by
the Sessions Judge, Delhi, the appellants filed appeals before the Delhi High Court against their
convictions and sentences, indicated above, and were released on bail pending the hearing of the
appeals. Meanwhile, the Special Courts Act of 1979 came into force and by virtue of a declaration
made under Section 7 of the said act, the appeals stood transferred to this Court and were placed for
hearing before us. As the learned Sessions Judge has given all the necessary details of the prosecution
case against the appellant, it is not necessary for us to give all the facts but we propose to give a bird's
eye view of the substratum of the allegations on the basis of which the appellants have been convicted,
dwelling particularly on those aspects which merit serious consideration. We have heard learned
counsel for the parties at great length both one the constitutional points involved in the appeals and the
facts. By an order dated December 5, 1979, we disposed of the constitutional points which were in the

8
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

nature of preliminary objection to the maintainability of these appeals and overruled these objections.
The reasons of the said order have been given by us which would form part of this judgment.

3. Coming now to the facts, shorn of unnecessary details, the story begins with the production of a
film called 'Kissa Kursi Kaa' by Shri Amrit Nahata, PW 1, under the banner of Dhwani Prakash. PW1
was a member of Parliament and had produced the film in the year 1975. The film, according to the
prosecution, was a grotesque satire containing a scathing criticism of the functioning of the Central
Government and was open to serious objections which were taken even by the Central Board of Film
Censors (hereinafter to be referred to as the 'Board'). After the film was ready for release, PW 1, Amrit
Nahata, applied for certification of the film on the 19th of April, 1975 before the Board. The film
was viewed on April 24, 1975 by an Examining Committee of the Board and while three Members
were of the opinion that certificate for exhibition, with drastic cuts, should be given, another Member
and Mr. N. S. Thapa, the Chairman, disagreed with the opinion of their colleagues and accordingly
referred the matter to the Revising Committee. The Revising Committee after viewing the film agreed
by a majority of 6 :1 for certification of the film, the dissent having been voiced by Mr. Thapa, the
Chairman and accordingly under the Rule 25 (ii) of the Cinematograph (Censorship) Rules, 1958, a
reference was made to the Central Government on 8-5-1975. In this connection, a letter was addressed
to PW 6, Mr. S. M. Murshed, who was at the relevant period Director in the Ministry of Information
and Broadcasting, Incharge of Film and T. V. Projects and was appointed Joint Secretary on 1st May,
1975. The correspondence in this regard is to be found in the file Ext. PW 6/A. Before making his
comments PW 6 saw the film sometime in the middle of May, 1975. Meanwhile, PW 1, Amrit Nahata,
was directed to deposit the positive print of the film comprising 14 reels of 35 mm with the Films
Division Auditorium, situate at 1, Mahadev Road, New Delhi (hereinafter to be referred to as the
'Auditorium'). In pursuance of these directions, PW 1 deposited the positive print and an entry thereof
was made by the Librarian-cum-Projectionist of the Auditorium which is Ext. PW 17/A. PW 17, K. P.
Sreedharan, who was a Technical Officer Incharge also inspected the reels and found them in order.

4. Although Murshed, PW 6, after seeing the film agreed with the opinion of the Chairman of the
Board that the film may be open to objection on the ground that it was full of sarcasm and contained
criticism of the political functioning of the governmental machinery yet he was personally of the
opinion that certification for exhibition should not be refused. The witness accordingly recorded a note
and submitted it to Mr. A. J. Kidwai, the then Secretary, Ministry of Information and Broadcasting.
The matter was then examined by Mr. I. K. Gujral, the then Minister of Information and Broadcasting
but no final decision was taken. Meanwhile, PW 1, Amrit Nahata, filed a writ petition in this Court
which is Ext. PW 1/D. On the 23rd of June, 1975, a notice was issued by the Ministry of Information
and Broadcasting to PW 1, Amrit Nahata, to show cause why certification to the film be not refused.
The notice

was made returnable by 9-7-1975. Thus, it appears that the Ministry of Information and Broadcasting
had taken a tentative decision to refuse certification to the film because of its objectionable and
offensive nature. We might state here that so far, neither A-1 nor A-2 was anywhere in the picture. In
fact, the position is that the film faced rough weather even at the initial stage of consideration by the
Board as a result of which the matter was referred to the Central Government where the question of
refusal of certification was seriously considered and ultimately a notice was issued under the directions
of the Ministry. We have particularly highlighted this aspect of the matter because the learned Sessions
Judge was largely swayed by the consideration that A-1 took a very prominent part in banning the
film and in getting the positive print and other material in his personal custody in order to destroy the
9
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

same with the aid of A-2. On the other hand, the facts disclosed by the prosecution exfacie show that
objections to certification of the film had been taken at the very initial stage and the ultimate order
was passed during the time when A-1, Mr. Shukla had taken over as Minister, which was merely the
final scene of a drama long in process.

5. Continuing the thread from where we left it, Emergency was proclaimed on the night between 25th
and 26th of June, 1975 and soon thereafter A-1 took charge as the Union Minister of Information and
Broadcasting and he was of the opinion hat the film should be banned. On July 5, 1975, in pursuance
of the decision taken by the Central Government, the Coordination Committee directed seizure of the
film and that its negatives, positives and all other materials relating to it be taken in the custody of
the Central Government vide Ext. PW 6/D. On July 10, 1975, A-1 directed that the film be banned
from screening under the Defence of India Rules, vide Ext. PW 6/E-4. Finally, on the 11th of July,
1975, PW 6, Murshed, passed an order that no certification was to be given to the film for public
exhibition which was followed by a letter dated July 14, 1975, forfeiting the film the Government.
In pursuance of the decision taken by the Central Government, PW 39, S. Ghose, Deputy Secretary,
Incharge of the Films Division, wrote a letter to the Chief Secretary, Government of Maharashtra for
seizure of all the positives and negatives of the film as also other related materials. In pursuance of this
order, the Bombay police seized the entire film on 1-8-1975 and deposited the same in the godown
of the Board. As, however, a final order had been passed by the Government banning the film, PW
Amrit Nahata, filed a petition for special leave in the Supreme Court on 6-9-1975. This petition was
heard one 29-10-1975 and this Court directed the Government to screen the film on 17-11-1975 in
the Auditorium for being shown to the Judges constituting the Bench. In pursuance of the order of
this Court, intimation was sent to the Ministry concerned and PW 62, Mr. S. M. H. Barney, who was
then Secretary, Ministry of Information and Broadcasting, directed that immediate action be taken
to implement the orders of the Supreme Court, and the arrangements should be made to book the
Auditorium for 17-11-1975. By a letter dated 5-11-1975, Ext. PW 2/A-2 the Supreme Court was
also informed regarding the steps taken which, according to the prosecution were the prelude to the
conspiracy between the two appellants leading to the seizure, disposal and destruction of the film.

6. Sometime thereafter, PW 2, L. Dayal, took over as Joint Secretary (Films Division) in place of
Mr. Murshed.

7. We might emphasise at this stage there is absolutely no evidence to show that there was any meeting
of minds between A-1 and A-2 nor is there any material to indicate that A-2 played any role in the
banning of the film. The decision to ban the film appears to have been taken by the Ministry headed
by A-1, on the merits of the case. No motive is attributable to A-1 at this stage because even the
Chairman of the Board, PW 8, Mr. Thapa, who was an independent witness, was of the view that the
film should not be certificated for public exhibition. Similarly, the steps taken by the officers of the
Ministry in pursuance of the banning of the film, namely, the seizure of the film at Bombay and its
transfer to Delhi appear to begin the nature of routine to see that the decision taken by the Government
was implemented. As no stay had been obtained by PW 1, Amrit Nahata, from the Supreme Court,
the Government was not bound to stay its hands.

On the other hand as soon as the Ministry received the orders of this Court for screening the film on
17-11-1975, immediate steps were taken to comply with the orders of this Court.

10
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

8. Before we proceed further, we might indicate that it is well settled that in order to prove a criminal
conspiracy which is punishable under section 12-B of the Indian Penal Code, there must be direct or
circumstantial evidence to show that there was an agreement between two or more persons to commit
an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate
decision taken by the conspirators regarding the commission of an offence. It is true that in most cases
it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred
even from circumstances giving rise to a conclusive or irresistible inference of an agreement between
two or more persons to commit an offence. After having gone through the entire evidence, with the
able assistance of Mr. Rajinder Singh, learned counsel for A-1 and of learned counsel for the State,
we are unable to find any acceptable evidence connecting either of the appellants with the existence
of any conspiracy. We are further of the opinion that even taking the main parts of the prosecution
case at their face value no connection has been proved with the destruction of the film and the two
appellants. The prosecution has, of course, produced some witnesses to show the existence of the
alleged conspiracy or some sort of connection of the appellants with the destruction of the film but
that evidence, as we shall show, falls short of the standard of proof required in a criminal case. We
relise that the prosecution was seriously handicapped because the investigation started only after the
Janata Government came into power in March 1977, that is to say, about a year and a half after the
offences in question were allegedly committed, by when naturally much of the evidence would have
been lost and even some of the important witnesses examined by the prosecution had turned hostile
and refused to support its case. Despite these difficulties, the prosecution has to discharge its ends of
proving the case against the accused beyond reasonable doubt. We, therefore, propose to deal only
with that part of the evidence led by the prosecution which has been relied upon to prove some sort
of a connection of the appellants with the alleged destruction of the film.

9. In this connection, we propose to deal with the evidence in three securate parts -

(1) the deposit of positive print in the Auditorium and its alleged transfer to the personal custody of
A-1;

(2) the arrival of thirteen trunks containing negatives and other material related to the film at New
Delhi from Bombay in pursuance of the orders of A-1 and their transfer to 1, Safdarjung Road, then
to the Maruti Complex; and

(3) the actual order alleged to have been given by A-2 for burning the film in the premises of the
Maruti Complex which operation, according to the prosecution, was carried out by the approver, PW
3, Khedkar, and other witnesses between the 10th and 24th of November 1975.

10. Although there are other elements on which prosecution has adduced evidence which is by no
means very convincing or consistent but even if we assume those elements to be proved, if the three
aspects indicated above, are not proved the prosecution is bound to fail.

11. We now proceed to deal with the first part of the case.

(1) The deposit of the prints at the Auditorium and its alleged great transfer to the personal custody
of A-1.

In the Auditorium, PW 17, Sreedharan screened the film in order to show the same to PW 6, Murshed,
on the 22nd May 1975 and again on the next day at the instance of the Ministry of Information and
11
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

Broadcasting. Some private shows were also screened at the instance of PW 1, Amrit Nahata, though
this was not permissible under the Rules. It was also the prosecution case that PW 39, Ghose and PW
61, C. K. Sharma met PW 17, Sreedharan and PW 18, Bhawani Singh and examined the prints which
were then kept in the green room. Ghose then rang up Sreedharan and told him that he was coming
to the Auditorium to take delivery of the prints. Accordingly, PW 39, Ghose is said to have arrived
at the Auditorium and the fourteen reels contained in cans were put on the back seat of his car. PW
39, Ghose then went to Shastri Bhavan and put the cans in the dicky of the staff car of A-1 in the
presence of the driver, Babu Ram,

PW 33. Thereafter when A-1 came, Babu Ram took the car to 1, Safdarjang Road where the cans
were unloaded and kept in the office of R. K. Dhavan, Additional private Secretary to the then Prime
Minister. In support of this part of the case, the prosecution examined PW 18, Bhawani Singh, PW
33, Babu Ram; PW 61, C. K. Sharma; PW 57, V. S. Tripathi; PW 60, R. L. Bandlish and PW 39,
Ghose. So far as PWs 39, 57, 60 and 61 are concerned, they did not support the prosecution case
regarding the transfer of the prints to the custody of A-1 as alleged by the prosecution. So the only
witnesses to prove the factum of transfer were PWs 17 and 33. The prosecution also examined some
other witnesses PW 1, Amrit Nahata; PW 2, L. Dayal and PW 62, Burney to show that the transfer of
the positives of the film to the custody of A-1 was carried out at the oral instruction of A-1. PW 62,
however, did not support the prosecution and thus, on this point, the only witnesses worth considering
are PWs 1 and 2.

12. We would first refer to the evidence of PW 1, Amrit Nahata. He stated that he was directed
to deposit the positive print of the film to the Films Division Auditorium at Mahadev Road and
consequently he complied with the direction on 17-5-1975, and obtained a receipt. The witness goes
on to state that one of the factors which weighed with him in withdrawing the writ petition he had filed
in the Supreme Court was that he was persuaded and pressurised and threatened by A-1 to withdraw
the writ petition. He, however, admitted in his cross-examination that the process of persuasion and
pressurisation and threats was carried out not on one but on several occasions. He then went to the
extent of saying that the Minister (A-1) used to talk to him in this connection in parliament, in his office
and sometimes even at Shastri Bhavan. He further stated that even in the Central Hall of Parliament he
did not hesitate from threatening him. The witness admitted that he never filed any written application
before the Supreme Court alleging the threats given to him by A-1. He further admits that after the
Janata Government took over in March 1977, while he had written to Mr. L. K. Advani, who succeeded
A-1, regarding the film, he made no mention of any such conversation between him and A-1 about the
threats, etc. Finally, he admitted that no one was present in the office when he talked to Mr. Shukla.
In view of these statements, we find it difficult to believe the witness. The entire version given by him
is inherently improbable, firstly, because of his failure to draw the attention of the Supreme Court to
the threats, etc. Secondly, it is impossible to believe that after Janata Government came to power and
he wrote a letter to Mr. Advani regarding the film, he would not mention that he had been pressurised
or threatened by A-1 when he was undoubtedly very much interested in his film being exhibited and
bore a serious grouse and animus against A-1 because he had refused certification for exhibition of
his film. In these circumstances, we are unable to place any reliance on the testimony of this witness
so far as the allegation of threats, pressurisation, etc., made by A-1 is concerned. Thus, if his evidence
is rejected on this point, then excepting the testimony of PWs. 2 and 63, there is no evidence to show
that A-1 had any connection or link with the transfer of the positive print of the film.

12
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

13. This brings us to the consideration of an important witness PW 2, L. Dayal, on whom great reliance
has been placed by the learned Sessions Judge. So far as PW 2 is concerned, he states that sometime in
the first week of November, A-1 called him and said that he had decided to keep all material relating to
the film in his personal custody and that detailed arrangements for the delivery of the material would
be made by his personal staff and the work would be done by a respectable officer. The witness further
states that PW 57, V. S. Tripathi, was also present at the time when this conversation between the
witness and A-1 took place. He further states that he had apprised PW 62, Burney, the Secretary, of
the talk he had with A-1. Both PW 57 and PW 62 have not supported the witness on these points and
have denied the same. The witness had also stated that he had called PW 39, Ghose and apprised him
of the instructions of the Minister for carefully and confidentially putting all material in the personal
custody of the Minister. Ghose, however, in his evidence does not support the story of instructions
by the Minister and denies having been told anything of the kind by the witness. Of course, all the
three witnesses, namely, Tripathi, Burney

and Ghose, had been declared hostile. The witness further goes on to state that he had called PW
4, Khandpur, who happened to be in Delhi and had told him that all the film material pertaining to
the film 'Kissa Kursi Kaa' lying at Bombay had to be carefully and confidentially collected and sent
to Delhi. PW 4, however, clearly admits in his evidence that the instruction which he had received
was to send the material to the Ministry of Information and Broadcasting. As we shall show, PW
2 appears to be deeply interested in the prosecution. In these circumstances, even Mr. Jethmalani,
appearing for the State, frankly conceded that he would not ask Court to rely on this witness unless he
was corroborated by some other independent evidence. In fact, far from there being any independent
evidence to corroborate the version of the witness in regard to the instruction given by A-1, the persons
to whom the witness mentioned these facts, viz., Tripathi, Burney and Ghose, have not supported
him. Thus, so far as the role played by A-1 on the first part of the case is concerned, this is all the
evidence produced by the prosecution and if this evidence is rejected, then it is not proved at whose
instruction the film cans were transferred from the Auditorium to 1, Safdarjung Road nor has it been
established that this was done with the knowledge of A-1.

14. Coming back now to the evidence of the transfer of the positive print from the Audiotorium into
the car of Ghose and therefrom to the staff car of A-1, at Shastri Bhavan and finally to 1, Safdarjung
Road, the evidence led by prosecution consists of PWs 17 and 33. The other witness examined on
this point have not supported the prosecution case. From the evidence of PW 17, it appears that PWs
Ghose, C.K. Sharma and Bhawani Singh met him and examined the prints and then the prints were
kept in the green room. Later, the same day Ghose rang up the witness to inform him that he was
coming to take the positive print of the film which should be kept ready. Thereafter, Ghose arrived
and the prints were brought from the green room and placed in the back seat of the car of Ghose.
Ghose thereafter drove the car but gave no receipt for taking the film. Half an hour later, according
to the witness, there was a telephone call from Tripathi to enquire if the film had been delivered to
Ghose. The witness informed him that this had been done. It was also stated by the witness that a
letter (Ext. PW 17/E and E-1) was got written by Ghose before he took the film in his car. It may be
noticed here that prior to the filing of the FIR an inquiry had been held by PW 40, Narayanan, into
the manner how the prints of the film were missing and in that inquiry PW 17, Sreedharan, did not
say at all that Ghose had taken away the film. In this connection, the witness deposed as follows :-

"Q. You did not tell Shri Narayanan that S. Ghose had come to you in his car and you had delivered
the film to him in his car and he had taken it away?
13
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

Ans. No. I did not tell him like this (Voltd :- It was so as S. Ghose had asked me to say differently
to Shri Narayanan and I stated as advised by S. Ghose.)

Q. You know that enquiry had been ordered by Shri L. K. Advani Minister for Information and
Broadcasting?

Ans. Yes.

Q. And yet you deliberately told a lie before Shri Narayanan?

Ans. Yes, because of S. Ghose".

15. Thus, the witness admitted that he spoke a lie before Narayanan merely because of Ghose. Further,
even in his statement before the police, the witness did not state that Ghose had come to him for
taking away the film on the same day, i.e. the day on which Ghose had telephoned that he would be
coming to take the film. So far as PW 39, Ghose is concerned, he has totally denied having told the
witness to keep the positive prints ready or that he ever took delivery of the prints from the witness
and put the same in his car. Thus, even the prosecution case relating to the transfer of the positive
prints through PW 39, Ghose, to 1, Safdarjung Road becomes doubtful. Even so, assuming that Ghose
did take delivery of the positive prints that does not conclude the matter because the prosecution has
further to prove that the prints were taken away from the Audiotorium at the instruction of A-1 and
then kept in the staff car of A-1 and taken to 1, Safdarjung Road with the knowledge of A-1. On this
point, the evidence of PW 17, is absolutely silent and he says nothing about it nor was he competent
to say the same. The only

other witness PW 33, Babu Ram, states that sometime in the winter of 1975 PW 61, C. K. Sharma,
called him and told him that there was some luggage (saaman) of Minister Saheb which was to be
kept in his car and asked him to bring the Minster's car close to where Ghose's car was parked. The
witness found 10 to 12 round boxes which were transferred to the dicky of the staff car. Thereafter,
according to the witness, PW 60, Bandlish, had a talk with Ghose and after the Minister had come, the
car was driven to 1, Safdarjung Road. On reaching 1, Safdarjung Road, the Minister went out of the
car and a person came and took away the saaman. Thereafter, the witness drove A-1 to other places.
In his statement before the police, the witness did not state that PW 61, C. K. Sharma had told him
that the saaman of Minister Saheb (emphasis being on Minister Saheb) was to be transferred to the
dicky of the staff car. Both Bandlish and C. K. Sharma have not supported the version of this witness
and have denied everything. Even taking the version of this witness at its face value, there is nothing
to show that when A-1 boarded the staff car at Shastri Bhavan he was told either by the driver or by
anybody that the film cans had been placed in the dicky and were to be taken to 1, Safdarjung Road
or that they had been brought from the Auditorium. Even when the car reached 1, Safdarjung Road,
Babu Ram never informed the Minister about the boxes having been kept in the dicky nor is there
any evidence to show that the boxes were unloaded from the dicky of the Minister's car either in his
presence or to his knowledge. Thus, all that has been proved is that the cans were transferred from the
Auditorium to 1, Safdarjung Road. Taking the evidence of PW 17 and PW 33 as also PW 18, Bhawani
Singh at its face value, no connection between A-1 and the transfer of the film has been established.
Thus, the prosecution has failed to prove that the positive prints of the film were transferred from the
Auditorium to the personal custody of A-1 or that the said transfer was done in accordance with his
instruction or to his knowledge.

14
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

(2) The transfer of negatives and other material related to the film from Bombay to Delhi and to 1,
Safdarjung Road and from there Maruti Complex at the order of A-1.

So far as this part of the prosecution case is concerned, the evidence is wholly insufficient to attribute
any knowledge or ulterior motive to A-1 in directing the negatives to be sent from Bombay to Delhi.
Some evidence has no doubt been adduced by the prosecution to show some amount of criminality
on the part of A-1 but that evidence, as we shall show, is not very reliable.

17. To begin with, according to PW 6, Murshed, A-1 said that there was some sort of an informal
discussion between A-1, Mr. A. J. Kidwai, the then Secretary in the Ministry of Information and
Broadcasting and the witness when A-1 directed that the film be banned and seized, but that no action
was taken by the witness until the file reached him. The witness added that on July 7, 1975, there
was another meeting attended by Sarin and other officers which was presided over by A-1 and in this
meeting a final decision was taken that the film should be taken over and mention was made that the
Defence of India Rules should be pressed into service. The witness further stated that ultimately in
the Coordination Committee meeting which was held on July 10, 1975, and was also presided over
by A-1, the earlier decision taken by the Government was reiterated. The witness then goes on to
state that he passed the order Ext. PW 6/A-9 on July 11, 1975, which directed that the certificate
for public exhibition was refused and the said order was communicated to PW-1, Amrit Nahta, this
was followed by another order Ext. PW 6/A-10 which forfeited the film Kissa Kursi Kaa. Both these
orders were approved by the Minister which had to be done in consequence of the decision taken
by the Government. After the film had been banned and forfeited, the seizure of the film material at
Bombay became a necessary consequence and accordingly a letter dated July 14, 1975, was issued
under the signatures of PW 39, Ghose to the Chief Secretary, Govt. of the Maharashtra for seizure of
the film material relating to the film and requiring him to deposit the same with the Board.

18. The next question that arises is as to why the negatives and other material of the film were directed
to be

sent to Delhi. It is obvious that once the film was banned and forfeited and action under the Defence
of India Rules had to be taken, it was in the nature of a routine operation that the negatives and other
material of the film should be placed in the custody of the Ministry of Information and Broadcasting.
This appears to us to be the main reason why A-1 directed that these materials may be sent from
Bombay to Delhi. In order to incriminate the Minister the prosecution urges that this was done by
A-1 to get the negatives, etc., in his personal custody so that he would be in a position to destroy the
same. On this, there does not appear to be any clear evidence and even the Sessions Judge has based
his findings largely on speculation.

19. To begin with, L. Dayal, PW 2, who was then attached to A-1 as Joint Secretary (Films) states
that on 6-11-1975, A-1 told him in the presence of Tripathi, PW 57, that A-1 had decided to keep
all material relating to the film in his (A-1's) personal custody, that detailed arrangements for the
delivery of the material would be made by A-1's personal staff and that the work had to be done by a
responsible officer. The witness adds that he conveyed the decision to the Secretary and to S. Ghose,
PW 39, ant then called PW 4, Khandpur, Chief Producer, Films Division, Bombay who happened
to be in Delhi and asked him that all the material pertaining to the film 'Kissa Kursi Kaa' lying at
Bombay had to be carefully and confidentially collected and sent to Delhi. At the time when this talk
took place Ghose and Tripathi were present, according to PW 2, who then rang up Vyas (Chairman of

15
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

the Board) and gave him similar instructions in the presence of Ghose and Tripathi. However, neither
Tripathi nor Ghose supports PW 2 on the point that he had asked Khandpur to collect the material
of the film 'carefully and confidentially' which particular words were attributed to A-1 to show his
criminal intent. In this connection, Ghose, PW 39, who was declared hostile to the prosecution, stated;

"As I was coming out of the room of Shri Burney, I dropped in Shri Dayal's room which was in the
same corridor with a view to inform him that I had gone to the auditorium and checked the film and
had found the film intact. I also told him that I had informed Shri Burney accordingly. I found Shri
K. L. Khandpur also sitting in the room of Shri Dayal, Shri Dayal asked me to take my seat. After
a few moments I found Shri V. S. Tripathi walking into the room of Shri Dayal. He also took his
seat. When I entered the room Shri Dayal was already conversing with Shri Khandpur. Looking at
us, namely, myself and V. S. Tripathi and Shri. Khandpur, Shri Dayal generally enquired where the
filmic material was lying at Bombay. Shri Dayal also gave direction to Shri Khandpur for collecting
the filmic material at Bombay with a view to transporting it from Bombay to Delhi. I do not recall
Shri Dayal taking the name of the Minister or the Secretary at the time of the discussion. I also do
not recall whether he mentioned word secretly during this discussion. My feeling was that the entire
responsibility for the collection and transportation of the filmic material from Bombay to Delhi was
left with Shri K. L. Khandpur".

20. The stand of Tripathi, PW 57, who was also allowed to be cross-examined by the prosecution
was as follows :-

"Shri Dayal gave instructions to Shri K. L. Khandpur in my presence and that of Shri S. Ghose to Shift
the negative material of film Kissa Kursi Kaa from Bombay to Delhi. At the request of Shri Khandpur,
Shri Dayal also spoke to late Shri V. D. Vyas about this matter and told him on telephone that the
negative material was to be shifted from Bombay to Delhi and that the transportation arrangement
would be explained by Shri Khandpur to him on his return to Bombay. Roughly this is all that I
remember and in addition that it was early in the afternoon."

21. The witness was specifically asked whether in his presence A-1 gave instructions to L. Dayal,
PW 2, that he (A-1) wanted the positives and negatives of the film in his own custody immediately
and confidentially. He denied the correctness of the assertion and was confronted with the following
portion ('E' to 'E') of his statement made on the 25th April 1977, to K. N. Gupta, Deputy Superintendent
of Police, C. I. A., New Delhi:

"Later, some time in the afternoon, the Minister called me inside his room, Shri Dayal was also inside
and I noted that discussion was going on about the film "Kissa Kursi Kaa". The then Minister of I.
and B. gave instructions to Shri L. Dayal. Jt. Secy, (Information) in

my presence that he wanted the positives and negatives etc. of the film, "Kissa Kursi Kaa" to be
handed over to him, in his custody immediately and confidentially., The Minster also said that the
arrangements for transportation will be made by him and Shri Dayal should get in touch with the
personal staff for this".

The witness also denied the correctness of the assertion that in his presence later on Shri Dayal, PW 2,
had told Shri Khandpur, PW 4 that the film should be brought from Bombay to Delhi "very carefully
without telling anybody about it". He was confronted with portion 'F to F' of his said statement to the
police where the assertion appears.
16
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

22. Even Khandpur, PW 4, who has fully supported the posecution has not said anything in his
evidence to indicate that PW 2 had said that the materials should be 'carefully and confidentially'
collected and sent to Delhi. On the other hand, PW 4 says thus:-

"I was called by L. Dayal, the Joint Secretary in his office. I was asked to make arrangements for
collecting all material pertaining to film Kissa Kursi Kaa available at Bombay and to send the same
to Delhi.

** ** ** ** **

I have seen file CFD/51 shown to me, Ex. PW 4/E. It is named "Confidential Material Received from
C. B. F. C. and sent to Ministry of I and B in November 1975". This file pertains to Films Division
Bombay. This file pertains to the film materials of Kissa Kursi Kaa. Another file pertaining to this
film is the one which contains Exts. PW 4/A to PW 4/C".

The file Ext. PW 4/E was labelled as 'Confidential' and shows that the film material was sent to the
Ministry of Information and Broadcasting in November 1975. But there was nothing to indicate in
the file or in the evidence of PW 4 that the materials and negative, etc., were to be sent to the personal
custody of the Minister. As the film was banned and forfeited, there was nothing incongruous about
the transfer of the materials to Delhi being treated as an official and confidential matter and even if
PW 2 had told PW 4 that the film material should be dispatched "carefully and confidentally" that
would not show any criminal intent on the part of A-1.

23. In order to show that A-1 took a somewhat unusual interest in the dispatch of the negatives and
other material of the film from Bombay to Delhi, it is further the case of the prosecution that Tripathi
who was Special Assistant to A-1 was sent expressly to receive the materials at New Delhi Railway
Station and make arrangements for their transport. But Tripathi categorically stated that he never went
to the Railway Station for the purpose of receiving the film material, etc. On the other hand, PW 2
states that on 9-11-1975, PW 4, Khandpur informed him on telephone from Bombay that the film
material was being sent from Bombay to Delhi by Western Express and would be reaching Delhi on
the next day and that two officers, one of them being Kane, PW 5, were accompanying the material.
PW 2 adds that he then rang up Ghosh and asked him to get in touch with Tripathi for making the
necessary arrangements for transport and delivery of the material. The witness goes on to state that on
the 10th November 1975, PW 39, Ghose, came to him and reported that the film material had arrived
and had been brought in tempos arranged by A-1. Ghose. however, has not supported this witness on
this aspect of the matter. Reliance was, therefore, placed on the evidence of PW 5, Kane, to show that
when he reached Delhi along with the film material, Tripathi was there to receive the same. It is not
disputed that Tripathi was not known to PW 5, Kane, before the 10th and that by the time the witness
saw him at the New Delhi Railway Station he had seen him only once in Bombay. The witness does
state that his pointed attention was drawn to Tripathi because he had asked him to settle the payment
of charges to the coolies and that but for this his attention would not have been drawn to Tripathi. He
however, admits that in his statement before the Central Bureau of Investigation, he did not mention
the fact that Tripathi had asked him to settle the matter of the payment of charges to the coolies. Thus,
the existence of the only circumstance on the basis of which the witness could have identified Tripathi
becomes doubtful and in view of the categorical statement of Tripathi that he never went to New Delhi
Railway Station on the 10th of November to receive the film, it is difficult to accept the evidence of
PW 5 that Tripathi was the person present at the

17
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

station. The possibility that the witness committed some mistake in identifying cannot be ruled out.
Moreover, the identification of Tripathi by the witness for the first time in the court without being
tested by a prior test identification parade was valueless. Besides, the witness admits that in the note
ext. PW 4/E-2 he did not mention Tripathi or any other person along with Ghose to have been present
at the New Delhi Railway Station. Thus, even on the question of the arrival of the material of the film
at New Delhi no direct connection with A-1 has been established by the prosecution. In fine, it is not
proved by the prosecution that Tripathi was present at the Railway Station to receive the film and
hence it cannot be said that A-1 took an unusual interest in seeing that the film is properly brought
from Bombay to Delhi and placed in his custody.

24. Coming back to the evidence of PW 2, there is yet another circumstance which he proves and
which merits some consideration. According to the witness, in the special leave petition filed by PW
1, 12th March 1976, was fixed for screening the film. The witness adds that he took instruction from
A-1 as to what should be done when A-1 asked him to inform the Supreme Court through an affidavit
that efforts had been made to trace the prints of the film at Bombay as also at Delhi but that there were
no chances of their becoming available. The witness says that he was also directed to mention in the
affidavit that such misplacements had often occurred in the past, and that he passed on this information
to the Secretary, Mr. Burney who suggested that the orders of the Minister should be carried out.
In consonance with the instruction, Ghose filed an affidavit before the Supreme Court on the 22nd
March 1976 but the Hon'ble Chief Justice emphasised the importance of making the film available for
viewing by the Judges. The witness recorded a note Ext. PW 2/A-17 to bring the matter to the notice
of the Minster. Ultimately, however, as PW 1, Amrit Nahata, withdrew the petition nothing further
happened. It appears that while the petition was pending in the Supreme Court, contempt proceedings
were taken against some of the officers including PW 2 who also filed four affidavits, one of them
on the 28th November 1977, and the other three on the 28th February 1978. These affidavits are Ext.
PW 2/B-1 to B-4. In these affidavits he wanted to prove that as the film had been mixed up with lot
of other films received in connection with the Fifth International Film Festival, the material of the
film Kissa Kursi Kaa was misplaced and that is a stand which comes into direct conflict with the
testimony of the witness in court in which the entire blame is shifted to A-1 but which again runs
counter to an assertion made earlier by the witness in his own hand. That assertion appears in the
form of an amendment to a draft of a letter (Ext. PW 2/DE) to be sent to Mr. V. P. Raman, Additional
Solicitor General and reads: 'In spite of efforts the film had not been found'. The witness admits
clearly that this statement was false to his knowledge. A witness who could go to the extent of making
intentionally false statement cannot be relied upon for the purpose of convicting the appellant. On his
own showing, he was fully collaborating with A-1 in a criminal design and was therefore, no better
than an accomplice whose testimony cannot be accepted in any material particular in the absence
of corroboration from reliable sources. Even Mr. Jethmalani, the erstwhile senior counsel for the
prosecution conceded the correctness of this proposition. On an appreciation of the evidence of PW
2 and other factors discussed above, his evidence has not only not been corroborated but definitely
contradicted by other witnesses, circumstances and documents.

25. PW 63, K. N. Prasad was the Additional Secretary in the Ministry of Information and
Broadcasting. He stated that in March 1977, A. K. Verma, the then Joint Secretary wanted to know
whether the Government had any inherent power to destroy property which had been seized or
forfeited, and also disclosed that the enquiry was made in connection with the film 'Kissa Kursi Kaa'.
The witness further stated that after two or three days Verma and PW 39, Ghose came to his room and
asked the same question. The witness further goes on to state that he was informed by his P. A. that
18
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

he was required to attend a meeting at the residence of the Minister (A-1), that when he entered the
office at the residence of A-1, he found PW 62, Mr. Burney, Secretary to the Ministry of Information
and Broadcasting, sitting there and that Mr. Burney (PW 62) asked the witness what the

legal position was about the right of the Government to destroy forfeited property. At that time
according to the witness, Tripathi, Mr. Burney and A-1 were present. He, however, admits that A-1
did not ask any particular question.

26. From the testimony of PW 63 the prosecution seeks to draw an inference that it was A-1 at whose
instance Verma, Ghose and Burney had asked for the advice of the former (PW 63). Now A. K. Verma
has not been examined as a witness and his statement (seeking the advice of PW 63) is not, therefore,
admissible in evidence, while both Ghose and Burney have denied that any such conversation as has
been deposed to by PW 63 took place between the latter and the witnesses in the presence of A-1. In
fact, a specific suggestion was put to Burney (PW 62) in the following terms :

"Q. When Shri Nahata asked for the return of the film material, did it happen that you discussed the
matter regarding availability and return of the film material with Shri Shukla at his official residence
and during that discussion Shri K. N. Prasad and Shri A. K. Verma had also come there and Shri V.
S. Tripathi, Special Asstt. to the Minister was also present"?

His answer was an emphatic no.

27. Besides, the story given out by the witness does not appear to be very plausible, for it does not
stand to reason that A-1 would depute no less than three officers (Verma, Ghose and Burney), one
after the other, to obtain advice of PW 63 when A-1 could have had no difficulty in obtaining the
advice himself. And then how was PW 63 selected as a Specialist in the concerned branch of law over
the head of superior officers, even if it was considered hazardous to enlist the services of a competent
lawyer? We are, therefore, unable to place reliance on the evidence of this witness on this point. From
a discussion of the circumstances mentioned above we conclude that the prosecution has failed to
prove that the film materials brought from Bombay to Delhi were placed in the personal custody of
A-1 or that A-1 had them transferred to No. 1, Safdarjung Road or to the Maruti Complex.

28. Another link in the chain of prosecution evidence (the existence of which seems to have been
accepted by the learned Sessions Judge) was that two tempos belonging to the Maruti Company
were sent to the New Delhi Railway Station where the thirteen trunks which arrived by the Western
Express were loaded therein and were taken to 1, Safdarjung Road before being transported to Maruti
Complex where they were unloaded, kept and later on destroyed. It was also alleged by the prosecution
that a raid of the Maruti Complex carried out in 1977 led to the recovery of the lid of a trunk, an
empty can which earlier contained part of the film material and a gunny bag to the inside of which
were found sticking scraps of paper. The investigators also claimed that a few miles away from the
Maruti Complex some round cans were recovered from a nallah. The learned counsel for the defence
submitted that the allegations about the trunks being taken to Maruti Complex and the recoveries
being made were false and adressed to the court lengthy arguments in this behalf. It is, however, not
necessary for us to go into these details at this stage because assuming for the purpose of argument
that the trunks were brought to the Maruti Complex, and that the film material was destroyed unless
A-1 or A-2 were shown to be connected with the transport or destruction of the material, the charge
against the appellants cannot be held to be proved.

19
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

29. (3) The burning of the film 'Kissa Kursi Kaa' in November 1975, at Maruti Complex at the orders/
instructions of A-2.

In support of this part of the prosecution story, reliance was placed mainly on the testimony of Khedkar
(PW 3) who is the approver. The effort of the prosecution was to establish that on instructions given
by A-2 the film material was burnt inside the Maruti Complex on two consecutive nights and that
the fact was reported to A-1 on each of the two following mornings. The approver was the Security
Officer in the Maruti Limited at the relevant time and the assertions made by him in this behalf may
be split up as follows:-

(a) In the middle of November 1975, A-2 sent for the approver and told him that some boxes containing
films were lying in the stores, that the films were to be destroyed when the workers were away and
that the approver would get keys of the locks on the boxes on the next day.

(b) On the next day one of the security guards who used to accompany A-2 handed over a sealed
packet of paper wrapped in cloth to the approver. On the same day the approver directed his assistant
named Kanwar Singh Yadav, PW 32 to meet the approver (in the Maruti Complex) at 9.00 p.m. along
with watchman Om Prakash, PW 31. Kanwar Singh Yadav, PW 32 met the approver at 9.30 p.m. They
reached the factory gate where watchman Om Prakash PW 31 was waiting for them. The approver
signed the key register and obtained the key of the General Store. The party of three opened the store
and found lying therein the thirteen boxes containing the film material. The boxes were opened with
the keys which were taken out of the sealed packet mentioned earlier. Each box was found to contain
10 or 12 cans having film spools inside them. Each can bore a label with the legend 'Kissa Kursi Kaa'.
The first lot of the films was removed to a nearby pit and was burnt there, the operation lasting from
10.30 p.m. to 2.30 a.m. Watchman Om Prakash, PW 31 however left the place at about 11.00 p.m.
because he felt giddy.

(c) Next morning the approver reported to A-2 that the work had been carried out in part only and
that it would be completed on the night following, which was done from 10.00 p. m. to 2.00 a. m.

(d) Next morning the approver again made a report to A-2 telling him that the job had been completed.

30. Learned counsel for the defence contended that the stand taken by the approver could not be
accepted at its face value and had to be rejected lock stock and barrel. On a thorough consideration
of the evidence we find that the contention is well based as we shall presently show.

31. The film material, according to the case of the prosecution, is said to have reached Maruti Complex
on the 10th of November, 1975. After the 23rd November, 1975, Khedkar PW 3, on his own showing,
went away on leave. The period during which the film is said to have been burnt thus lies between the
10th and the 23rd of November, 1975. Furthermore, Khedkar, PW 3 has firmly asserted that on the
first of the two nights on which the burning operations were carried out, watchman Om Prakash, PW
31 was on duty from 2.00 p.m. to 10.00 p.m. He was examined at length in relation to duty rosters
P-22 and PW 32/2 which were admittedly prepared by him. Duty roster exhibit P-22 covers the entire
month of November, 1975, and according to the entries appearing therein watchman Om Prakash,
PW 31 was to be on duty during the whole of that month in the third shift only, i.e., daily from 10.00
p.m. to 6.00 a.m. The approver however explained that the roster could be changed from time to time
according to the exigencies of the situation. He averred that on the 15th of November, 1975, which
was a Saturday and therefore an off-day for watchman Om Prakash, PW 31, the latter took over duty
20
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

from 2.00 to 10.00 p. m. as a substitute for watchman Tarachand. A similar arrangement was made
on the 18th of November, 1975, when watchman Om Prakash, PW 31 changed places with watchman
Ramdular and went over from the 3rd to the 2nd shift (2.00 p.m. to 10.00 p.m.). As it is, the 15th and
the 18th of November, 1975, were the only two days in the month on which watchman Om Prakash,
PW 31 was on duty during the second shift as a special arrangement. For the rest of the days during the
months he was admittedly never on duty in that shift. The period during which the film was destroyed
is thus further narrowed down so that the first operation of burning could have taken place on the
night of the 15th of November or on that of the 18th of November, 1975, and on no other date.

32. Here we may refer to another aspect of the matter. Evidence has been produced to show that A-2
left Delhi by air at 7.50 a.m. on the 17th of November, 1975, for Hyderabad, and arrived back at Delhi
at 8.30 p. m. the same day. He again took off at 6.40 a. m. on the 19th of November, 1975, for Sikkim
and returned to Delhi not earlier than 11.10 a.m. on the 23rd of November, 1975. On both occasions
he travelled as a member of the party of the then Prime Minister, his own mother, namely, Shrimati
Indira Gandhi. The evidence of Dr. K. P. Mathur, DW 3, is categorical in this behalf and is supported
by the passenger manifests (Ext. DW-3/A and DW-5/A) prepared in relation to the journeys which
contain the name of A-2, and other documents which need not be mentioned here. We regard his
testimony as conclusive as was done not only by the learned Sessions Judge but

also by the Special Public Prosecutor who made a statement at the trial that testimony be accepted by
the prosecution in toto. In this view of the matter the prosecution has to prove that a period of four
days in between the 14th and the 18th of November, 1975, was such as A-2 was available in Delhi
during day time on the first, third and fourth of such days.

33. Now, as pointed out already, the burning could have taken place only on the 15th or the 18th of
November, 1975, if the approver and the duty rosters prepared by him are to be believed. The 18th
of November, 1975, has to be excluded for the reason that on the two days following A-2 had to be
shown to have been in Delhi (for receiving the report about the destruction of the material from the
approver) which he definitely was not. The 15th of November, 1975, as the first night of the burning
operation also does not click with the prosecution case because, although the report about it could
have been made to A-2 on the next morning (in spite of the fact it was a Sunday and therefore a
closed day for the factory), A-2 was not in Delhi or anywhere near it throughout the 17th so that the
story of the report made to him by the approver about the second part of the burning operations loses
weight. No other dates being in point, the story propounded by the approver is negatived by reference
to unimpeachable documentary and circumstantial evidence, although it may be further noted that
neither Kanwar Singh Yadav, PW 32 nor watchman Om Prakash, PW 31 supports the approver's
version and each one of them was declared hostile to the prosecution.

34. The recoveries said to have been made during investigation have also not impressed us. As stated
earlier the incriminating articles said to have been seized are a lid of a trunk, an empty can, a gunny bag
- all from inside the Maruti Complex - and a few cans from inside a nala lying a few miles away. These
recoveries are sought to be connected with the destruction of the film on the basis of the following
averments forming part of the testimony of the approver :

"It was after the elections held in March, 1977, that Sanjay Gandhi who was then Director met me in
the factory hall. Kanwar Singh Yadav was also there. Vijay Sharma, Bus Body Manager, was called
there. Sanjay Gandhi asked us to collect all the damaged trunks with the contractors and to deposit

21
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

them in Bus Body Store. We could collect 12 out of 13 trunks mentioned above along with four or
five other big trunks. Later on I found them shifted to Press shop store. A couple of days thereafter,
Kanwar Singh Yadav, Sanjay Gandhi and I went inside the General Store. We walked down to Bus
Body Store. There Sanjay Gandhi asked Panna Lal, Bus Body Supervisor and Incharge Bus Body
Store, to collect all the damaged locks available with them. Panna Lal passed on the order to Om
Prakash who was Bus Body Clerk Incharge Stores. About 25 damaged locks were collected. These
included Harrison, Tiger and Godrej locks. Godrej locks were 4 or 5 Sanjay Gandhi asked me to get
all those collected locks melted in a foundry and I got them melted.... Ram Lakhan was Incharge of
the foundry and I handed over the collected locks to him..... Thereafter, scrapping of the trunks and
their removal was performed by my Asstt. Kanwar Singh Yadav and he told me about that. Kanwar
Singh Yadav told me that Sanjay Gandhi had asked him to scrap the trunks and cans and to dispose
them off. He told me that he cut the trunks into pieces and threw them into the iron scraps which were
sold to different contractors. As regards the cans, he told me that he had damaged the cans and thrown
them at different places on Rajasthan Highway and Rajasthan Byepass.... He told me that the trunks
had been cut into pieces and cans had been damaged in the Press Shop."

35. This story is inherently, improbable. The thirteen trunks which admittedly had no marks of
identification on them and were of the ordinary type available in any market are said to have been
shredded and the locks - which again are available in plenty everywhere - are alleged to have been
melted in the foundry but, strangely enought, the cans which had on them labels carrying the legend
'Kissa Kursi Kaa' were subjected to a much milder treatment and were merely pressed and then thrown
away at various places on the Rajasthan Highway and Rajasthan Byepass to which Kanwar Singh
Yadav, PW 32 had to make journeys off and on. It is not disputed that if the cans

were to be shredded or melted the operation would not have presented any difficulty whatsoever in
view of the facilities available at the Maruti factory. And, if that be so, surely any person who wanted
to obliterate evidence of the commission of a serious offence would see to it that the material of the
cans was so transformed as to be impossible of identification. There is no reason why all of them
should not have been melted into lumps or in any case shredded beyond recognition. And we also
do not see how just one can would be left intact when so much care was bestowed on Operations
Obliteration. In fact, it may have been much easier for the cans to be shredded or melted than for them
to be first pressed and then transported to far off places and thrown away there. In this view of the
matter we need not pursue this part of the case any further.

36. Thus, on a complete and careful examination of the circumstances and the evidence, mentioned
above, even taking the substratum of the prosecution case at its face value, the prosecution has not
been able to prove either that there was any existence of any conspiracy between A-1 and A-2 to
destroy the film 'Kissa Kursi Kaa' by burning it or to commit any other offence in respect of the film.
There is no evidence to show that there was any meeting of minds between A-1 and A-2. We have
also found that even on the first two parts of the prosecution case, the allegation of the prosecution
that the positive prints were removed at the instance or to the knowledge of A-1 or that the negatives
and other materials of the film were sent for by A-1 and kept in his personal custody has not been
proved. The mere fact that A-1 decided to ban film and refused certification for public exhibition and
passed orders for seizure of the film and its transfer to the custody of the Ministry of Information and
Broadcasting does not disclose any offence. We have already shown that the decision to ban the film
was not taken by A-1 secretly or clandestinely but after a full-fledged discussion in the Co-ordination
Committee meeting and it is proved that such meetings are usually attended by senior officers of
22
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

various Ministries, as deposed to by K. N. Prasad, PW 63. Further, that part of the case which relates
to the burning of film material rests solely on the uncorroborated testimony of the approver and is
negatived in so far as the role therein of A-1 is concerned.

37. We may mention here that a lot of evidence has been produced by the prosecution to show :-

(a) that the positive print of the film found its way into the luggage compartment of the car in which
A-1 then travelled to the Prime Minister's house where the print was unloaded by someone in the
absence of A-1; and

(b) that the nagatives and other material relating to the film were taken in a tempo or two to the
Prime Minister's residence and from there to the Maruti Complex where they were stored before their
destruction.

38. We have considered it purposeless to go into these factors for the reasons that the connection of A-1
or A-2 therewith remains unproved as discussed above. Head these factors provided circumstantial
evidence on the basis of which alone the charge against either A-1 or A-2 could be held established it
would have been necessary for us to sift the evidence produced in support thereof. But that is definitely
not the case, for, if either or both of the factors are proved, the inference of guilt of either A-1 or
A-2 does not necessarily follow. For circumstantial evidence to furnish evidence of guilt it has to be
such as it cannot be explained on any other reasonable hypothesis except the guilt of the accused,
which is not the case here because appellants A-1 and A-2 could not be said to be the only persons
interested in the destruction of the film if it was as obnoxious to the then Prime Minister or as critical
of the functioning of the then Union Government as the prosecution would have us believe. The film
and all the material relating to it no doubt appear to have vanished into thin air but then neither A-1
nor A-2 can be held responsible therefor, in the absence of proof in that behalf - proof which would
exclude all reasonable doubt.

39. The prosecution having thus failed to prove the case against the appellants, their appeals are
allowed, the convictions recorded against and the sentences imposed on the appellants are set aside
and they are acquitted of all the charges framed against them. Both the appellants who are on bail
shall now be discharged from their bailbonds. In view of the acquittal of

appellant No. 1, Shukla in Criminal Appeal No. 494 of 1979 and appellant No. 2, Sanjay Gandhi in
Criminal Appeal No. 493 of 1979, Criminal Appeal No. 492 of 1979, filed by the State is dismissed.
In view of the fact that we have made no comments on the conduct of the investigation or on Mr. N.
K. Singh, no order need be passed on the application filed by him.

39A. FAZAL ALI, J :-The appellants (in Crl. As. 493-494/79) have raised a number of preliminary
objections challenging the constitutional validity of the Special Courts Act of 1979 (Act No. 22 of
1979) and of Sections 5 to 8 thereof as being violative of Articles 14, 21 and other provisions of the
Constitution. We have heard counsel for the appellants and the Solicitor General at great length. We
are clearly of the opinion that the Special Courts Act referred to above as also its impugned provisions
are constitutionally valid. We, therefore, overrule the preliminary objections and proceed to hear the
appeals. Reasons for this Order will follow.

(Reasons for the order dated 5-12-1979 passed by the Court forming part of this judgment - See Para
2).
23
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

40. FAZAL ALI, J :-There two criminal appeals are directed against judgment dated 27th Feb.,
1979 of the Sessions Judge, Delhi by which the accused (hereinafter referred to as the appellants)
have been convicted under various sections of the Penal Code and awarded sentences of various terms
of imprisonment not exceeding two years (which have been ordered to run concurrently) in addition
of fines.

41. Both the appeals were originally filed before the Delhi High Court and were admitted by it on the
21st March, 1979 when the sentences of the appellants were suspended and they were released on bail.
On the 17th May, 1979, the State also filed an appeal to the Delhi High Court for enhancement of the
sentences. The Special Courts Act (No. 22 of 1979 and hereinafter to be referred to as the 'Act') was
passed by Parliament and received the assent of the President on 16th May, 1979. On the 27th, June,
1979, the Central Government made a declaration under Section 5 (1) of the Act as a consequence of
which the appeals stood transferred to this Court.

42. The appellants have raised a number of preliminary objections relating to the constitutional
validity of the Act and various provisions thereof on several grounds including the contravention of
Articles 14 and 21 of the Constitution of India. Alternatively, it was argued that some of the provisions
of the Act did not at all apply to the appellants and the transfer of the appeals from the High Court to
this Court was not legal. The State has appeared through Shri Soli J. Sorabjee who has countered all
the objections raised by the appellants and has submitted that the Act is a valid piece of legislation
and that there is no illegality in the transfer of the appeals from the High Court to this Court. In view
of the nature of the preliminary objections raised by the appellants we decided to dispose them of
before entering into the merits of the appeals. After hearing the parties at great length, by an order
dated December 5, 1979 we overruled all the said objections and proceeded to hear the appeals on
merits. We now proceed to set out the reasons given for the order rejecting those objections.

43. In order to understand the arguments advanced by learned counsel for the parties it will be
necessary to state certain undisputed facts. The Act was preceded by a Bill (introduced by a Member of
the Lok Sabha) which was adopted by the Government but in view of certain Constitutional objections
the President made a reference to this Court for its opinion regarding the validity of the Bill and its
*
provisions. The matter was heard by a Bench of seven Judges and in its report dated Dec. 1, 1978 ,
this Court upheld the validity of the Bill generally by a majority of six to one. Certain clauses of the
Bill, however, were held to be violative of Article 21 of the Constitution. This Court further held that
Parliament had legislative competence to create Special Courts and to provide for appeals against
judgments and orders of such Courts to the Supreme Court. This Court also upheld the classification
provided in clauses 4 (1) of the Bill which conferred power on the Central Government to make
a declaration in respect of an offence alleged to have been committed during the operation of the
Proclamation of Emergency dated 25th June, 1975 by a person who held high public or political office
in India. To the extent that

the clause brought within the purview of the Act persons who had committed offences between
February 27, 1975 and June 25, 1975 it was, however, held to be invalid. Similarly, the provisions of
clause 7 of the Bill laying down that a retired Judge of a High Court could be appointed as a Judge
of the Special Court and that this could be done by the Central Government in consultation with but
without the concurrence of the Chief Justice of India were held to be bad. Furthermore, the Court
observed that the absence of a provision for the transfer of a case from one Special Court to another
affected the fairness of the trial and, therefore, was violative of Article 21 of the Constitution. Barring
24
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

theses infirmities, the constitutional validity of the Bill was upheld by this Court. It may be mentioned
here that during the course of arguments learned counsel for the Union gave an express undertaking
that the defects pointed out in the Bill would be suitably removed so as to bring the Bill in accord with
the opinion expressed by the Court Consequently, a fresh Bill was prepared and was introduced in the
Lok Sabha on the 21st February, 1979. This Bill incorporated the suggestions of this Court, deleted
reference to the period prior to the 25th June, 1975 in the preamble, made a provision for transfer of
a case from one Special Judge to another by the Supreme Court and provided that a Special Court
would consist of the sitting Judge of a High Court nominated by the Central Government with the
concurrence of the Chief Justice of India. After some debate the Bill was passed by the Lok Sabha
on the 9th March, 1979. It was then sent to the Rajya Sabha where its various provisions were fully
debated and certain important suggestions were made by the Members of the Rajya Sabha as a result
of which the Bill was returned by the Rajay Sabha with certain amendments on 21st March 1979.
Thereafter the Government accepted the amendments suggested by the Rajya Sabha and incorporated
the same in the Bill which was then passed and ultimately received the assent of the President on
16th May, 1979.
* Reported in AIR 1979 SC 478.

44. Some of the substantial changes which have been incorporated in the Act may be summarised
thus :

45. The Act is now a permanent Act and does not deal only with offences committed during the
period of Emergency. Secondly, in the preamble an additional clause has been added to indicate the
nature of the offences committed by persons holding high public or political office. Thirdly, it has
been provided that a Special Court would consist of a sitting Judge of a High Court nominated by
the Chief Justice of the High Court concerned with the concurrence of the Chief Justice of India.
Thus, the Government has absolutely no hand either in the appointment of or any control over the
Special Judge. This provision appears to ensure complete independence of the Special Judge who is
to be appointed to decide cases of highly placed or political officers, so that they may have complete
confidence in the Judge who tries their case.

46. Another Special feature of the Act is that the preamble and its various clauses are not merely
intended to spell out the object of the Act but contain important guidelines and essential safeguards
and by virtue of Sections 5 (1) of the Act the clauses of the preamble become a part of the Act itself.

47. As the Act has thus assumed a new complexion, it is necessary to analyse briefly its scheme before
we deal with the contentions raised by learned counsel for the parties. The heading of the Act shows
that its main object is to provide for the speedy trial of a certain class of offences (emphasis ours).
There are as many as nine clauses of the preamble which run thus :

AN ACT

to provide for the speedy trial of a certain class of offences.

(1) Whereas Commissions of Inquiry appointed under the Commissions of Inquiry Act, 1952 have
rendered reports disclosing the existence of prima facie evidence of offences committed by persons
who held high public or political offices in the country and others connected with the commission
of such offences during the operation of the Proclamation of Emergency, dated the 25th June, 1975,
issued under clauses (1) of Article 352 of the Constitution;
25
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

(2) And whereas investigations conducted by the Government through its agencies have also disclosed
similar offences committed during the period aforesaid'

(3) And whereas the offences referred to in the recitals aforesaid were committed during the operation
of the said proclamation of Emergency, during

which a grave emergency was clamped on the whole country, civil liberties were curtailed to a great
extent, important fundamental rights of the people were suspended, strict censorship was imposed
on the press, judicial powers were severely crippled and the parliamentary democratic system was
emasculated;

(4) And whereas all powers being a trust, and holders of high public or political offices are accountable
for the exercise of their powers in all cases where Commissions of Inquiry appointed under the
Commissions of Inquiry Act, 1952 or investigations conducted by Government through its agencies
disclose offences committed by the holders;

(5) And whereas it is the constitutional, legal and moral obligation of the State to prosecute persons
involved in the said offences;

(6) And whereas the ordinary criminal courts due to congestion of work and other reasons cannot
reasonably be expected to bring those prosecutions to a speedy termination'

(7) And whereas it is imperative for the efficient functioning of parliamentary democracy and the
institutions created by or under the Constitution of India that the commission of offences referred to
in the recitals aforesaid should be judicially determined with the utmost dispatch;

(8) And whereas it is necessary for the said purpose of establish additional courts presided over by
sitting Judges of High Courts;

(9) And whereas it is expedient to make some procedural changes whereby avoidable delay in the
final determination of the innocence or guilt of the persons to be tried is eliminated without interfering
with the right to a fair trial."

(Numbering of the clauses by us to facilitate discussion)

48. So far as clause (1) is concerned it refers to Commissions of Inquiry and the reports given by
them disclosing the existence of prima facie evidence of offences committed by persons holding high
public or political offices in the country and others connected with the commission of such offences
during the operation of the Proclamation of Emergency dated June 25, 1975. Clauses (2) and (3) give
the history of the special features of the Emergency and the result of the investigation conducted by
the Government regarding offences committed during the Emergency. Clause (4) makes the Act a
permanent one. According to this clause, persons holding high public or political offices are actually
trustees in regard to the powers vested in them and offences committed by them in breach of the trust
or confidence reposed in them would also fall within the ambit of the Act, if either by the Commissions
of Inquiry or investigations conducted by the Government such offences are disclosed. Clause (5)
makes it clear that it is the constitutional, legal and moral obligation of the State to prosecute persons
involved in the offences mentioned in the foregoing clauses. Clauses (6) and (7) deal with the main
object of the Act which is to bring the prosecution of the offenders falling within the ambit of the Act

26
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

to a speedy termination and to bring about a judicial determination of the offences said to have been
committed by them with the utmost dispatch. Clause (3) provides for the establishment of additional
courts presided over by sitting Judges of High Courts. Clause (9) refers to certain procedural changes
brought about by the Act in the provisions of the Code of Criminal Procedure and intended to avoid
delay in the final determination of the innocence or guilt of the persons to be tried. To sum up from
the object of the various clauses of the preamble it is manifest that particular type of persons, namely,
those who are holding high public or political offices by way of a trust have been put in a separate
class along with those who have committed offences during the Emergency and who also bear the
same characteristics as those indicated in clause (4). Section 2 of the Act defines "Code", "declaration"
and "Special Court" and the residuary clauses (d) thereof says that words and expressions not defined
in the Act would have the same meaning as in the Code of Criminal Procedure. Section 3 (1) gives
power to the Central Government to establish an adequate number of Special Courts by notification
in the Official Gazette. Section 3 (2) enacts that a Special Court shall consist of a sitting. Judge of a
High Court nominated by the Chief Justice thereof with the concurrence of the Chief Justice of India.
Section 4 empowers the Special Court to take cognizance and try such cases as are instituted before
it or transferred to it in accordance with the manner provided by the Act. Section 5 (1) is the

pivotal provision which lays down the conditions under which the Central Government is empowered
to make a declaration which is the starting point of the prosecution of the offenders falling within the
ambit of the Act. It may be noticed that Section 5 (1) clearly states that the guidelines contained in the
preamble are to be followed by the Central Government in determining whether an offence is to be
dealt with under the Act. Section 5 (2) provides that a declaration made by the Central Government
shall not be called in question in any court. Section 6 provides that on a declaration made under Section
5 (1) in respect of any offence, any prosecution in respect of any offence, any prosecution in respect
of such offence shall be instituted only in a Special Court designated by the Central Government and
that where a prosecution is pending in any other court, the same shall stand transferred to the Special
Court. This would be in derogation of anything contained in the Code of Criminal Procedure. Section
7 deals with the automatic transfer to the Supreme Court of appeals or revisions pending in any court
of appeal or revision at the date of the declaration. Section 8 embodies the well known provisions
of the Code of Criminal Procedure relating to a joint trial of a number of accused persons who are
charged with the offence of abetment or conspiracy. Section 9 (1) provides that the Special Court
would follow the procedure prescribed by the Code for the trial of warrant cases before a Magistrate,
that is to say, it makes applicable the provisions of Sections 238 to 243 and 248 of the Code to trials
by a Special Court. Sub-section (3) of Section 9 lays down that the provisions of the Code of Criminal
Procedure shall apply, in so far as they are not inconsistent with those of the Act, to proceedings
before a Special Court which shall be deemed to be a Court of Session and would have all the powers
thereof, and that a person conducting a prosecution before a Special Court shall be deemed to be a
Public Prosecutor. Sub-section (4) of Section 9 empowers a Special Court to pass upon any person
convicted by it any sentence authorised by law for the punishment of the offence of which such person
is convicted. Section 10 (1) contains a provision for the transfer by the Supreme Court of a case from
one Special Court to another where such an order is expedient in the ends of justice. In fact, in the
opinion given by this Court on the Presidential Reference this aspect of the matter was particularly
highlighted. Sub-section (2) of Section 10, however, lays down the norms under which an application
for transfer could be made. Sub-section (3) of Section 10 empowers the Supreme Court to grant
compensation to any person who has opposed the application for the transfer of a case if the Court
finds that such an application was frivolous or vexatious. Sec. 11 (1) prescribes the forum of an appeal
to the Supreme Court against a judgment, order or sentence passed by a Special Court but excludes
27
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

interlocutory order, from its ambit. It may be noted that interlocutory orders have been excluded from
the purview of Section 11 (1) so as to eliminate unnecessary delays in the trial of a case by a Special
Court. Even the Code of Criminal Procedure has barred any revision against an interlocutory order
by virtue of the provisions of Section 397 (2) of the Code of Criminal Procedure, 1973. Sub-sec. (2)
of Section 11 provides that no appeal or revision shall lie to any court from any judgment, sentence
or order of a Special Court except as provided for under Section 11 (1). Sub-section (3) provides the
period of limitation for filing an appeal before the Supreme Court and the proviso thereto confers
power on the Supreme Court to condone any delay if sufficient cause is shown. It may be noticed
here that under Section 11 an appeal to the Supreme Court from an order of the Special Judge lies as a
matter of right. Section 12 empowers the Supreme Court to frame rules for carrying out the purposes
of the Act. Section 13 provides that every notification made under sub-section (1) of Section 3 and
every declaration made under sub-sec. (1) of Section 5 shall be laid, as soon as may be after it is made,
before each House of Parliament.

49. Thus, by and large, the Act contains almost the same provisions as were contained in the Bill
which was sent to this Court for its opinion by the President. Clause (1) of the Bill is now Section 1
(1) of the Act. Clause (2) is now Sec. 3 of the Act. Clause (3) of the Bill is now Section 4 of the Act.
Clauses (4) of the Bill is now Section 5 of the Act. Clause (5) of the Bill is now Section 6 of the Act.
Clause 6 of the Bill is now Section 7 of the Act. Clause (7) of the Bill is now Section 3 (2) of the Act.

with an explanation added to it. Cl. (8) of the Bill is now Section 8 of the Act. Clauses (9) of the
Bill is now Section 9 (1) of the Act with sub-sections (2), (3) and (4) added to it. Clause (10) of the
Bill is now Section 11 (1) of the Act. Thus, in so far as the arguments advanced before this Court in
the reference case are concerned, they are concluded by the decision given thereon and, we do not
propose to go behind the opinion given by the Court in that case or the reason thereof with which
we are in respectful agreement. Learned counsel for the appellants having realised the force of this
position, confined their arguments to certain points which either did not arise at the reference stage
or were not argued before the Court and on which no decision was given, and in fact, relied on some
of the findings given and the propositions of law adumbrated by this Court in the reference case.

50. The main ground of attack regarding the constitutional validity of the Act is based on Articles 14
and 21 of the Constitution. Before dealing with the arguments we might mention certain important
principles laid down by this Court in the reference case.

51. In a diverse society and a large democracy such as ours where the expanding needs of the nation
change with the temper of the times, it is extremely difficult for any legislation to make laws applicable
to all persons alike. Some amount of classification is, therefore, necessary to administer various
spheres of the activities of the State. It is well settled that in applying Article 14 mathematical precision
or nicety or perfect equanimity are not required. Similarity rather than identity of treatment is enough.
The courts should not make a doctrinaire approach in construing Article 14 so as to destroy or frustrate
any beneficial legislation. What Article 14 prohibits is hostile discrimination and not reasonable
classification for the purpose of legislation. Furthermore, the Legislature which is in the best position
to understand the needs and requirements of the people must be given sufficient latitude for making
selection or differentiation and so long as such a selection is not arbitrary and has a rational basis
having regard to the object of the Act, Article 14 would not be attracted. That is why this Court has laid
down that presumption is always in favour of the constitutionality of an enactment and the onus lies
upon the person who attacks the statute to show that there has been an infraction of the constitutional

28
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

concept of equality. It has also been held that in order to sustain the presumption of constitutionality,
the Court is entitled to take into consideration matters of common knowledge, common report, the
history of the times and all other facts which may be existing at the time of the legislation. Similarly,
it cannot be presumed that the administration of a particular law would be done with an "evil eye
and an unequal hand". Finally, any person invoking Article 14 of the Constitution must show that
there has been discrimination against a person who is similarly situate or equally circumstanced. In
the case of State of U. P. v. Deoman Upadhyaya, (1961) 1 SCR 14 : (AIR 1960 SC 1125), Subba
Rao, J., observed as follows:-

"No discrimination can be made either in the privileges conferred or in the liabilities imposed. But
there propositions conceived in the interests of the public, if logically stretched too far, may not
achieve the high purpose behind them. In a society of unequal basic structure, it is well nigh impossible
to make laws suitable in their application to all the persons alike. So, a reasonable classification is not
only permitted but is necessary if society should progress".

52. With this brief introduction, we now proceed to deal with the arguments of learned counsel for the
appellants. In the first place, Mr. Bhatia, appearing for appellant Sanjay Gandhi submitted that even
having regard to the principles laid down by this Court in the reference case, the Act fails to pass the
test laid down for a valid classification under Article 14. Therefore, we might mention here that the
classical tests laid down for the application of Article 14 are the following :-

(1) The classification must be founded on an intelligible differentia which distinguishes persons who
are placed in a group from others who are left out of the group".

(2) Such differentiation must have a rational relation to the object sought to be achieved by the Act.

(3) There must be a nexus between the differentiation which is the basis of the classification and the
object of the Act.

53. In applying the aforesaid tests, Mr. Bhatia contended that the decision

given in the Reference Case upheld the Bill and rejected the challenge that the Bill violated Article 14
mainly on the ground that the Bill sought to put a certain class of persons, namely, persons, holding
high public or political offices who had committed offences only during the period of Emergency.
In other words, he argued that the constitutionality of the Bill was upheld on the ground that it
was legislation confined to selected offences committed by a particular class of persons during the
Emergency period, it was contended that the impugned Act transgressed the limits imposed by the
judgment in the Reference case by bringing within its fold offences committed prior and sub-sequent
to the Emergency and thus was in direct conflict with the opinion of this Court rendered in the
Reference case. In amplification of this argument it was contended that this Court struck down that
part of the Bill which related to the period between February and June 1975, on the ground that
persons having committed offences during that period could not be clubbed with those who had
committed offences during the period of Emergency. In other words, the argument was that the Act,
by clubbing together persons accused of offences committed during the Emergency with those alleged
to be guilty of crimes pertaining to periods before and after the Emergency (i.e., by dealing with
offences committed at any point of time whatsoever), has violated the guarantee under Article 14 and
the classification made by the Act is in direct contravention of the opinion given by this Court in the

29
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

Reference case. In support of his contention, Mr. Bhatia relied on the following observations of this
Court in the Reference case, (1979) 2 SCR 476 : (AIR 1979 SC 478):-

"The classification which Section 4 (1) thus makes is both of offences and offenders, the former in
relation to the period mentioned in the preamble, that is to say, from February 27, 1975, until the expiry
of the proclamation of emergency dated June 25, 1975, and in relation to the objective mentioned in the
sixth paragraph of the Preamble that it is imperative for the functioning of parliamentary democracy
and the institutions created by or under the Constitution of India that the commission of such offences
should be judicially determined with the utmost dispatch and the latter in relation to their status, that is
to say, in relation to the high public or political office held by them in India. It is only if both of these
factors coexist that the prosecution in respect of the offences committed by the particular offenders
can be instituted in the Special Court.............

We are not concerned with the truth or otherwise of the allegations, the narrow question before us
being whether, in the first instance, the classification is based on some qualities or characteristics
which are to be found in all the persons grouped together and not in others who are left out. The answer
to that question can be one and one only, namely, that offences alleged to have been committed during
the emergency by persons holding high public or political offices in India stand in a class apart. The
cover of emergency, so it is alleged, provided a unique opportunity to the holders of such offices to
subvert the rule of law and perpetrate political crimes on the society. Other left out of that group had
neither the means nor the opportunity to do so, since they lacked the authority which comes from
official position. Thus, persons who are singled out by the Bill for trial before Special Courts possess
common characteristics and those who fall outside that group do not possess them.....

The suppression of people's liberties facilitates easy commission of crimes. Public criticism is a potent
deterrent to misbehaviour and when that is suppressed, there is no fear of detection. Secondly, crimes
which are alleged to have been committed during extraordinary period like the period of emergency
are oblique in their design and selective in their object..... But those crimes are not woven out of the
warp and woof of political motivations. Equal laws have to be applied to all in the same situation and
legislature is free to recognise the degree of harm or evil".

(Emphasis ours)

54. Special stress was laid on the observations of this Court that the offences alleged to have been
committed during the Emergency by persons holding high public or political offices were a class
apart because such offences were committed under the cover of Emergency which provided a unique
opportunity to the holders of the said offices to subvert the rule of law. It was urged

that this cannot be said of the period either before or after the emergency when no such cover or
opportunity was available to the offenders concerned to misuse or abuse their powers and commit
offences. We find this argument to be without any substance. To begin with, it cannot be gainsaid
that, this Court while dealing with the Reference case was not at all concerned with the provisions of
the Act which is of much wider application than the Bill considered by the Court in the Reference.
It is no doubt true that the Bill contained provisions for punishing only those offenders who were
accused of offences committed during a particular period, namely, the period of Emergency. It is
also true that the period of Emergency was an extraordinary one in the history of our country and its
features have been spelt out in the preamble of the Bill as also in the judgment given by this Court
in the aforesaid case. But that by itself does not debar Parliament from passing a permanent Act to
30
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

deal with a specified class of persons who occupy high public or political offices (which are offices
of trust) and misuse or abuse them. It cannot be doubted that for the establishment and continuance of
a Parliamentary democracy and to secure efficiency and purity of administration it is necessary that
when such persons commit serious abuse of power and are guilty of a breach of the trust reposed in
them, they would form a special class of offenders. The simple answer to the argument of Mr. Bhatia
is that this Court was not at all concerned with the broader aspect of the matter as envisaged by the
Act at the time when the Bill was being considered. That this is so, is clear from the observations
made by Chandrachud, C. J., and Krishna Iyer, J., the former observed:-

"Parliamentary democracy will see its halcyon days in India when law will provide for a speedy trial
of all offenders who misuse the public offices held by them. Purity in public is a desired goal at all
times and in all situations, emergency or no emergency. But, we cannot sit as a super legislature and
strike down the instant classification on the ground of under-inclusion on the score that those others
are left untouched, so long as there is no violation of constitutional restraints".

(Emphasis ours)

The observation that purity in public life is a desired goal at all times is a sufficient justification for
the classification made by the Act which widens its scope to include offenders of a particular type to
be punished for offences committed at any time, whether before, during or after the Emergency.

55. Similar observations were made by Krishna Iyer J. in his concurring judgment:-

"The pathology of our public law, with its class slant, is that an unmincing ombudsman or sentinel
on the qui vive with power to act against those in power, now or before, and offering legal access to
the informed citizen to complain with immunity does not exist........ And so, to track down and give
short shrift to.....

... ... ... ... ...

Where the proposed law excludes the pre-and post-emergency crime-doers in the higher brackets and
picks out only 'Emergency' offenders, its benign purpose perhaps becomes a crypto cover-up of like
criminals before and after. An 'ephemeral' measure to meet a perennial menace is neither a logical
step nor national fulfilment. The classification, if I may anticipate my conclusion, is on the brink of
constitutional breakdown at that point and becomes almost vulnerable to the attack of Article 14.

... ... ... ... ...

The crucial test is 'All power is a trust', its holders are 'accountable for its exercise', for 'from the
people, and for the people, all springs, and all must exist'. By this high and only standard the Bill
must fail morally if it exempts non-Emergency criminals about whom prior Commission Reports,
now asleep in official pigeon holes, bear witness and future Commission Reports (who knows?) may,
in time, testify......

Nothing about Emergency period is adverted to there as a distinguishing mark. If at all, the clear clue
is that all abuse of public authority by exalted public men, whatever the time of Commission, shall be
punished without the tedious delay Which ordinarily defeats justice in the case of top echelons whose
crimes affect the credentials of democratic regimes.

31
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

Assuming civil liberty was a casualty during the Emergency, as it was, how did it obstruct trials of
super-political criminals? If faith in democratic

institutions is the victim in case there is undue delay in punishing high public and political offenders,
that holds good, regardless of Emergency...........The question, then, is whether there is constitutional
rationale for keeping out of the reach of speedy justice non-emergency criminals in high public or
political offices. Such a Bill, were it a permanent addition to the corpus juris and available as a
jurisdiction for the public to compel government, if a prima facie case were made out even against a
minister in office, to launch a prosecution before a sitting High Court Judge, would be a wholesome
corrective to the spreading evil of corruption in power pyramids".(Emphasis ours)

56. It would thus appear from the observations quoted above that the majority judgment never meant
to indicate that the passing of an Act covering all persons holding high public or political offices
without reference to any period during which they are alleged to have committed the offences sought
to be made the subject matter of their indictment, would be beyond the legislative competence of
Parliament. In fact, such persons would undoubtedly form a special class of offenders which would
justify the legislative measure singling them out for an expeditious trial. To hold otherwise would
be to say that persons bearing the aforesaid attributes would be immune from prosecution under any
Special Act. Reading the opinion rendered in the Reference case carefully we are unable to agree with
Mr. Bhatia that this Court held that only Emergency offenders could be punished under a special Act
and that any Act seeking to punish offenders of a special type unrelated to the Emergency would be
hit by Article 14. It is true that some of the observations made by the learned Chief Justice, if read out
of context, may apparently lend some support to the arguments of Mr. Bhatia but taken as a whole
(as they must be) they clearly indicate that the passing of a permanent legislation classifying the type
of offenders mentioned in the Act, namely, persons holding high public or political offices would be
valid and, in fact, would be an ideal achievement.

57. We may mention here that the various observations made by Chandrachud, C. J., and Krishna
Iyer, J., in the Reference case were highlighted during the debates which followed the introduction
of the Bill in the Lok Sabha and the Rajya Sabha after the opinion of this Court was given. The Bill
was returned to the Lok Sabha on March 21, 1979, with suggestions for its amendment so as to make
it embrace offences without reference to a particular period, namely, the period of Emergency. The
Lok Sabha accepted the suggestions and passed the Bill in the form of the Act which received the
assent of the President on the 16th May 1979. Thus, the Act incorporates not only the above extraced
observations made by Chandrachud, C. J., and Krishna Iyer, J., but also the views expressed by the
Hon'ble Members of the two Houses of Parliament.

58. In view of the factors mentioned above, we are fully satisfied that the Act does not suffer from the
infirmities pointed out by Mr. Bhatia and the circumstance that it applies to offences committed at any
time by a particular set of persons possessing special characteristics does not render it unconstitutional;
for when it puts into a class a particular set of persons having special characteristics which distinguish
them from others who are left out of that class and who are to be tried under the ordinary law, the
classification is eminently reasonable. It may also be stated here that the classification made has a
reasonable nexus with the object sought to be achieved, namely, quick despatch and speedy trials. In
this connection, some observations of Chandrachud, C. J., in the Reference case may be adverted to:

32
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

"If prosecutions which the Bill envisages are allowed to have their normal, leisurely span of anything
between 5 to 10 years, no fruitful purpose will be served by launching them. Speedy termination of
prosecutions under the Bill is the heart and soul of the Bill........

Thus, both the tests are fulfilled in the instant case, namely, that (1) the classification is founded on
an intelligible differentia which distinguishes those which are grouped together from others who are
left out and (2) the said differentia has a rational relation with the object sought to be achieved by
the Bill, namely, speedy termination of prosecutions initiated in pursunance of the declaration made
under clause 4 (1) of the Bill".

59. The same, we hold, is true of the Act.

60. It was then submitted by Mr. Bhatia that even if the classification was valid, as the procedure
prescribed by the Act is extremely harsh and prejudicial to the accused, Articles 14 and 21 are clearly
violated. This aspect of the matter also has been expressly dealt with by Chandrachud, C. J., in
the Reference case where he has pointed out that once the classification is held to be valid even if
the procedure is harsher or disadvantageous that will not attract Article 14. In this connection, he
observed :-

If the classification is valid and its basis bears a reasonable relationship with the object of the Bill, no
grievance can be entertained under Article 14 that the procedure prescribed by the Bill for the trial of
offences which fall within its terms is harsher or more onerous as compared with the procedure which
governs ordinary trials. Classification necessarily entails the subjection of those who fall within it
to a different set of rules and procedure, which may conceivably be more disadvantageous than the
procedure which generally applies to ordinary trials........ But once a classification is upheld by the
application of the dual test, subjection to harsher treatment or disadvantageous procedure loses its
relevance, the reason being that for the purposes of Article 14, unequals cannot complain of unequal
treatment".

61. We shall, however, deal with the question whether or not the procedure is disadvantageous when
we examine the argument of the learned counsel regrading Secs. 5, 6, 7 and 11 of the Act.

62. Thus, to sum up, the position so far as this part of the argument is concerned is as follows :-

(1) Separate grouping of holders of high offices for purposes of expeditious criminal action to be
taken by superior courts is a reasonable and valid classification because it enhances confidence in the
rule of law, strengthens the democratic system and ensures purity of public life and political conduct.

(2) The Bill was challenged before the Supreme Court on the touchstone of Article 14 on several
grounds. In the first place, it was argued that no rational basis for separately classifying Emergency
offenders existed. The second ground of challenge was that assuming that there was a valid
classification, the same was bad because it suffered from the vice of under-inclusion inasmuch as
holders of high public or political offices were left out. This Court, however, repelled the argument
of rational basis on the ground that the Emergency period, because of its special characteristics
afforded adequate basis for separate classification of Emergency offences. The Court was not at all
at that time concerned expressly with the question as to whether classification of high public or
political dignitaries without reference to any period during which they were alleged to have committed
offences would be violative of Article 14 of the Constitution. On the other hand, this Court made
33
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

clear observations that an Act providing for such a classification would be not only valid but also
highly welcome. It is true that the provision regarding a particular period before the Emergency
was then struck down but that was so because the Bill was confined to offences committed only
during the period of Emergency and the inclusion of the period meant bad classification for the
reason that the period last mentioned could not be distinguished from other pre-or post-Emergency
periods on any reasonable basis. This view of the Court could not be interpreted as laying down a
law of universal application that no special Act on a permanent basis classifying offenders possessing
particular characteristics or attributes and providing for their prosecution under a special procedure
would be invalid or violative of Article 14. Thus, we do not think that the opinion of the Supreme
Court in any way amounted to disapproval or condemnation of a permanent law in futuro bringing
within its scope all holders of high public or political office.

63. It was then argued by Mr. Bhatia that assuming the classification of persons holding high public or
political offices to be justified, it suffers from a serious infirmity in that neither the term 'high public
or political office' has been defined nor have the offences been delineated or defined so as to make
the prosecution of such offenders a practical reality. Dealing with this argument, the learned Solicitor
General pointed out that it was specifically raised when the Court was hearing the Reference and
written submission were filed by

the parties but that, unfortunately, the opinion did not give any finding on it and urged that even in
absence of any finding, the argument must be deemed to have been rejected. We find sufficient force
in what the learned Solicitor General says but as we are hearing the appeals of persons who have been
convicted and sentenced to various terms of imprisonment so that their liberty is involved, we feel
that we should go into Mr. Bhatia's argument.

64. As regards the difinition of 'high public or political offices' the expression is of well-known
significance and bears a clear connotation which admits of no vaguencess or ambiguity. Even during
the debate in Parliament, it was not suggested that the expression suffered from the vagueness. Apart
from that even in the Reference case Krishna Iyer, J., referred to holders of such offices thus :-

"heavy-weight criminaloids who often mislead the people by public moral weight-lifting and
multipoint manifestoes......... Such super-offenders in top positions..........No erudite pedantry can
stand in the way of pragmatic grouping of high-placed office holders separately, for purposes of high-
speed criminal action invested with early conclusiveness and inquired into by high-level courts".
(Emphasis ours)

65. It is manifest from the observations of Krishna Iyer, J., that persons holding high public or political
offices mean persons holding top positions wielding large powers.

66. In American Jurisprudence 2d (Vol. 63, pp. 626, 627 and 637) the author describes persons holding
public or political offices thus :

"Public offices are created for the purpose of effecting the end for which government has been
instituted, which is the common good, and not for the profit, honor, or private interest of any one man,
family, or class of men.......The powers and functions attached to a position manifest its character, and
there is implied in every public office an authority to exercise some portion of the sovereign power
of the State in making executing, or administering the law...... Various positions, on the other hand,
have been held not to be public offices, as, for example, auditor of accounts appointed by railroad
34
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

Commissioners....." Similarly, Ferris in his thesis on 'Extraordinary Legal Remedies' defines public
or political offices thus :-

"A public office is the right, authority and duty created and conferred by law, by which an individual
is vested with some portion of the sovereign functions of the Government to be exercised by him for
the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation
of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose,
embracing the ideas of tenure, duration, emoluments and duties......The determining factor, the test,
is whether the office involves a delegation of some of the solemn functions of Government, either
executive, legislative or judicial to be exercised by the holder for the public benefit."

(72 Cal WN p. 64, Vol. 72)

Similarly, Wade and Phillips in 'Constitutional Law, defines political offices thus :-

"The Cabinet is the body of principal Ministers with whom rests the real direction of policy. We speak
of the Ministry or the Administration of a particular Prima Minister with reference to the full body
of political office holders who from time to time hold the reins of Government, i.e., the Minister of
the Crown and their Parliamentary Secretaries."

67. O. Hood Phillips in 'Constitutional And Administrative Law' (4th Edition, p. 312 and 314) defines
the hierarchy of Government Departments thus :

"Ministers - At the head of each Department - except the "non-political" Departments, which are not
important for present purposes - is the Minister, whether he is called Minister or Secretary of State
or President of the Board. He is a member of the Government and changes with the Minister of the
day, and he may also be a member of the Cabinet.

Parliamentary Secretaries - Under the Minister will be one or more Parliamentary Secretaries, or
Parliamentary Under-Secretaries of State if the Minister himself is a Secretary of State. As their name
implies, Parliamentary Secretaries are members of one or other of the Houses of Parliament; they
are Junior Ministers who change with the Government of the day. They assist their Chief in the
Parliamentary or political side of his work, as well as in the administration of his Department........

The detailed adminstration of the work of a Government Department is carried out by "permanent"
civil servants. Although, like Ministers, they are servants of the Crown, civil servants are called
"permanent" since their appointment is non-political and in practice lasts during good behaviour, as
opposed to Minister, Parliamentary Secretaries, etc., who are responsible to Parliament and change
office with the Government." So also, Ramsay Muir in his book 'How Britain is Governed ' (3rd Ed.
p. 81) states as follows :-

"In this chapter we have to discuss the second element in the Government - that which changes with
every change in the balance of power between parties in the country, which consists not of experts,
but of politicians, and which works under the limelight of publicity............This changing element is
known as 'the Ministry'."

Asirvetham in his book 'Political Theory' (9th Edn. p. 352) defines Political Executive thus :-

35
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

"Turning from the nominal to the political executive we find at least four distinct forms, viz., the
English, the American, the Swiss and the French. In England, the Prime Minister and the Cabinet
constitute the political executive. They can remain in office only so long as they command the
confidence of Parliament. They are members of one or the other house of the legislature and play a
leading part in initiating legislation. They are also administrative heads of departments and, in that
capacity, are responsible to Parliament not only for policy but also for the details of administration.
They work together as a team and, in their relation to Parliament, stand or fall together."

In Words and Phrases (Permanent Edition, Vol. 32 (Suppl.) p. 226) the word 'Political' has been
defined thus :-

"The word "political" is defined as of or pertaining to policy, politics, or conduct of

government.........or pertaining to, or incidental to, exercise of functions vested in those charged with
conduct of government, and relating to management of affairs of State."

"The word 'political' is defined by Bourvier to be pertaining to policy or the administration of

government. People v. Morgan, 90 III 558, 563.

The word "political" means that which pertains to government of a nation......" (p. 802)

68. A perusal of the observations made in the various text books referred to above clearly shows
that 'political office' is an office which forms part of a Political Department of the Government
or the Political Executive. This, therefore, clearly includes Cabinet Ministers, Ministers, Deputy
Ministers and Parliamentary Secretaries who are running the Department formulating policies and are
responsible to the Parliament. The word 'high' is indication of a top position and enabling the holder
thereof to take major policy decisions. Thus, the terms 'high public or political office' used in the Act
contemplates only a special class of officers or politicians who may be categorised as follows :-

(1) officials wielding extraordinary powers entitling them to take major policy decision and holding
positions of trust and answerable and accountable for their wrongs;

(2) ersons responsible for giving to the State a clean, stable and honest administration;

(3) persons occupying a very elevated status in whose hands lies the destiny of the nation.

69. The rationale behind the classification of persons possessing the aforesaid characteristics is that
they wield wide powers which, if exercised improperly by reason of corruption, nepotism or breach
of trust, may mar or adversely mould the future of the country and tarnish its image. It cannot be
said, therefore, with any conviction that persons who possess special attributes could be equated with
ordinary criminals who have neither the power nor the resources to commit offences of the type
described above. We are, therefore, satisfied that the term 'persons holding high public or political
offices' is self-explanatory and admits of no difficulty and that mere absence of definition of the
expression would not vitiate the classification made by the Act. Such persons are in a position to
take major decisions regarding social, economic, financial aspects of the life of the community and
other far-reaching decision on the home front as also regarding external affairs and if their actions
are tainted by breach of trust, corruption or other extraneous considerations, they would damage the
interests of the country. It is, therefore, not only proper but essential to bring such offenders to book
at the earliest possible opportunity.
36
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

70. It was then contended that even the nature and character of the offences have not been defined
in the Act which introduces an element of vagueness in the classification. We are, however, unable
to agree with this contention because clause (4) of the preamble clearly indicates the nature of the
offences that could be tried under the Act. Clause (4) of the preamble to the Act runs thus :

"And whereas all powers being a trust and holders of high public or political offices are accountable
for the exercise of their powers in all cases where Commissions of Inquiry appointed under the
Commissions of Inquiry Act, 1952 or investigations conducted by Government through its agencies
disclose offences committed by such holders."

71. The words 'powers being a trust' clearly indicate that any act which amounts to a breach of the
trust or of the powers conferred on the person concerned would be an offence triable under the Act.
Clause (4) is wide enough to include any offence committed by holders of high public or political
offices which amounts to breach of trust or for which they are accounable in law and does not leave
any room for doubt. Mr. Bhatia, however, submitted that even if the person concerned commits a petty
offence like violation of municipal bye-laws or traffic rules he would have to be prosecuted under the
Act which will be seriously prejudicial to him. In our opinion, this argument is purely illusory and
based on a misconception of the provisions of the Act. Sec. 5 which confers powers on the Central
Government to make a declaration clearly refers to the guidelines laid down in the preamble and no
Central Government would ever think of prosecution of holders of high public or political offices for
petty offences and the doubt expressed by the counsel for the appellant is therefore, totally unfounded.

72. It was contended on behalf of the appellants that Parliament was not competent to pass a Special
Act and create Special Courts for a particular set of offenders. This argument need not detain us
because it has been effectively answered in the reference case which has held clearly that Parliament
was fully competent to pass the Bill creating Special Courts.

73. Regarding the validity of Secs. 7 and 11 of the Act which correspond to clauses 6 and 10 of the
Bill, Chandrachud, C. J., observed as follows:-

"In view of our conclusion that Parliament has the legislative competence to enact clauses 6 and 10 (1)
of the Bill, it is unnecessary to consider the argument of the learned Solicitor General that, everything
else failing, Parliament would have the competence to legislate upon the jurisdiction and powers of
the Supreme Court by virtue of Article 248 (1) read with Entry 97 of List I........

To sum up, we are of the opinion that clauses 2, 6 and 10 (1) of the Bill are within the legislative
competence of the Parliament. That is to say, Parliament has the competence to provide for the creation
of Special Courts as clause 2 of the Bill provides, to empower the Supreme Court to dispose of pending
appeals and revisions as provided for by clause 6 of the Bill and to confer jurisdiction on the Supreme
Court by providing, as is done by clause 10 (1), that an appeal shall lie as of right from any judgment
or order of a Special Court to the Supreme Court both on fact and on law."

74. It was also contended for the appellants that the Act seeks to change the situs of the Court and
virtually abrogates Section 181 of the Code of Criminal Procedure. This argument also does not merit
any consideration because it was raised in the reference case and rejected. Dealing with this aspect
of the matter, Chandrachud, C. J., observed:-

37
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

"As regards situs of trial, it is unfair to make an assumption of mala fides and say that an inconvenient
forum will be chosen deliberately. Besides, the provisions of Chapter XII of the Code containing
Sections 177 to 189, which deal with "Jurisdiction of the criminal courts in Inquires and Trials", are
not excluded by the Bill. Those provisions will govern the question as to the situs of trial."

75. Mr. Bhatia further submitted that the Act creates an invidious distinction inasmuch as persons
holding high public or political offices would have the benefit of trial by such an experienced officer
as a sitting Judge of a High Court while the appellants have been deprived of that right and were
tried by a Special Judge who was only a Sessions Judge. This argument, in our opinion, is completely
devoid of substance. The first information report against the appellants was lodged on 13th April,
1977 and the

charge sheet was submitted before the Special Judge who convicted the appellants by his order dated
February 27, 1979. The Act, however, came into force on May 16, 1979, that is to say, three months
after the conviction and about two months after the appellants had filed their appeals before the High
Court. In these circumstances, the question of the appellants being tried by the Special Judge appointed
under the Act could not arise because the said Special Court did not exist at all when the trial of the
appellants was concluded. The existence of such fortuitous circumstances cannot attract Article 14.
This matter was considered in two decisions of this court. In the case of Khandige Sham Bhat v. The
Agricultural Income-tax Officer, (1963) 3 SCR 809 : (AIR 1963 SC 591) Subba Rao, J., observed
as follows :

"If there is equality and uniformity within each group, the law will not be condemned as
discriminative, though due to some fortuitous circumstance arising out of a peculiar situation some
included in a class get an advantage over others, so long as they are not singled out for special
treatment."

The same view was expressed thus in a later decision of this Court reported as Dantuluri Ram Raju
v. State of Andhra Pradesh, (1972) 1 SCC 421 : (AIR 1972 SC 828):

"The fact that on account of topographical situation some landowners get greater benefit of the
drainage scheme because of their lands being more prone to damage by floods is fortuitous
circumstances and the same would not be a valid ground for striking down the impugned legislation.
It is well established that if there is equality and uniformity within each group, the law will not be
condemned as discriminative though due to some fortuitous circumstances arising out of a peculiar
situation, some included in a class get an advantage over others so long as they are not singled out
for special treatment."

76. In view of these decisions, the argument of Mr. Bhatia must be overruled.

77. This, therefore, concludes the submission made by Mr. Bhatia generally regarding the
constitutionality of the Act.

78. Mr. Mridul adopted the abovenoted arguments, advanced by Mr. Bhatia, but put forward
contentions with respect to other aspects which we shall deal with at a later stage of the judgment.

79. It was next contended by Mr. Bhatia that Section 5 of the Act suffers from several constitutional
and legal infirmities.
38
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

80. Sub-sections (1) and (2) thereof may be extracted here :

"Declaration by Central Government of cases to be dealt with under this Act

5. (1) If the Central Government is of opinion that there is prima facie evidence of the commission
of an offence alleged to have been committed by a person who held high public or political office
in India and that in accordance with the guidelines contained in the preamble hereto the said offence
ought to be dealt with under this Act, the Central Government shall make a declaration to that effect
in every case in which it is of the aforesaid opinion.

(2) Such declaration shall not be called in question in any court."

81. In the first place, it was contended that Section 5 (1) suffers from the vice of excessive delegation
of powers so as to violate Article 14 inasmuch as the discretion conferred on the Central Government
is absolute, naked and arbitrary and is clearly discriminatory as it is open to the Central Government
to pick and choose persons and make declaration in respect of them while excluding others. In our
opinion, this contention is based on a serious misconception of the provisions of the Act. For one thing,
no unguided or uncanalised power has been conferred on the Central Government. A basic condition
imposed on the Central Government is that there must be a proper application of mind regarding the
existence of prima facie evidence of the commission of an offence. Secondly, the discretion has to
be exercised in accordance with the guidelines contained in the preamble. The various clauses of the
preamble which have been set out in an earlier part of this judgment, lay down clear guidelines and
provide sufficient safeguards against any abuse of power. Thirdly, clause (4) of the preamble clearly
lays down that the power under Section 5 is exercisable only after the commission of an offence by
the holder of a high public or political office has been disclosed as a result of an inquiry conducted
under the Commissions of Inquiry Act or of an

investigation conducted by the Government through its agencies. It is well settled that discretionary
power is not the same thing as power to discriminate nor can the constitutional validity of a law be
tested on the assumption that where a discretionary power is conferred on a high authority, the same
may or would be exercised in a discriminatory manner. In the case of Dr. N. B. Khare v. The State of
Delhi, 1950 SCR 519 : (AIR 1950 SC 211), Kania, C. J., dealing with the same aspect of the matter
observed as follows :

"Moreover, this whole argument is based on the assumption that the Provincial Government when
making the order will not perform its duty and may abuse the provisions of the section. In my opinion,
it is improper to start with such an assumption and decide the legality of an Act on that basis. Abuse
of power given by a law sometimes occurs, but the validity of the law cannot be contested because of
such an apprehension. In my opinion, therefore, this contention of the petitioner cannot be accepted."

In the case of Kathi Ranning Rawat v. State of Saurashtra, 1952 SCR 435 : (AIR 1952 SC 123) this
Court observed :

"The discretion that is conferred on official agencies in such circumstance is not an unguided
discretion, it has to be exercised in conformity with the policy to effectuate which the direction is given
and it is in relation to that objective that the properiety of the classification would have to be tested."

39
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

The same view was taken in a later decision of this Court in the case of Matajog Dobey v. H. C. Bhari,
(1955) 2 SCR 925 : (AIR 1956 SC 44) where the Court observed as follows :-

"It has to be borne in mind that a discretionary power is not necessarily a discriminatory power and
that abuse of power is not to be easily assumed where the discretion is vested in the Government and
not in a minor official."

In the case of In Re The Kerala Education Bill, 1957, 1959 SCR 995 : (AIR 1958 SC 956) this Court
said:

"But all that we need say is that apart from laying down a policy for the guidance of the Government in
the matter of the exercise of powers conferred on it under the different provisions of the Bill including
clauses 36, the Kerala Legislature has, by clause 15 and cl. 37 provided further safeguards. In this
connection, we must bear in mind what has been laid down by this Court in more decisions than one,
namely, that discretionary power is not necessarily a discriminatory power and the abuse of power
by the Government will not be lightly assumed."

Similarly, in the case of Jyoti Pershad v. The Administrator for the Union Territory of Delhi (1962)
2 SCR 125 : (AIR 1961 SC 1602), Ayyangar, J., speaking for the Court, observed :

"So long therefore as the Legislature indicates, in the operative provisions of the statute with certainty,
the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a
discretion is left to those entrusted with administering the law, affords no basis either for the contention
that there has been an excessive delegation of legislative power as to amount to an abdication of its
functions, or that the discretion vested as uncanalised and unguided as to amount to a carte blanche
to discriminate."

In the case of Moti Ram Dekka v. General Manager, N. E. F. Railways, Maligaon, Pandu, (1964) 5
SCR 683 : (AIR 1964 SC 600), Shah, J., speaking for the Court, remarked :-

"Power to exercise discretion is not necessarily to be assumed to be a power to discriminate

unlawfully, and possibility of abuse of power will not invalidate the conferment of power. Conferment
of power has necessarily to be coupled with the duty to exercise it bona fide and for effectuating
the purpose and policy underlying the rules which provide for the exercise of the power. If in the
scheme of the rules, a clear policy relating to the circumstances in which the power is to be exercised
is discernible, the conferment of power must be regarded as made in furtherance of the scheme, and
is not open to attack as infringing the equality clause."

In the case of V. C. Shukla v. The State through C. B. I. (Criminal Appeal No. 562 of 1979,
decided on November 7, 1979): (reported in AIR 1980 SC 962) this Court pointed out that where a
discretion is conferred on a high authority such as the Central Government it must be presumed that
the Government would act in accordance with law and in a bona fide manner, and said :

"In fact, this Court has held in a number of cases where a power is

vested in a very high authority, the abuse of the power is reduced to the minimum."

40
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

82. In view of these decisions, it must be held that the power conferred on the Central Government is
controlled by the guidelines contained in the preamble which by virtue of the provisions of Section 5
(1) becomes a part of that section. As the power has been conferred on the Central Government which
is to make a declaration in accordance with the conditions laid down in Section 5 (1) and, therefore,
in conformity with the guidelines mentioned in the preamble, the attack based on discrimination is
unfounded and is hereby repelled.

83. Another allied argument advanced by Mr. Bhatia was that the issuance of a declaration under
Section 5 (1) depends purely on the subjective satisfaction of the Central Government and under sub-
section (2) of Section 5 such a declaration cannot be called into question by any court so that there
would be an element of inherent bias or malice in an order which the Central Government may pass,
for prosecuting persons who are political opponents and that the section is therefore invalid. We are
unable to agree with this argument. As already pointed out, the power of the Central Government to
issue a declaration is a statutory power circumscribed by certain conditions. Furthermore, as the power
is vested in a very high authority, it cannot be assumed that it is likely to be abused. On the other hand,
where the power is conferred on such a high authority as the Central Government, the presumption
will be that the power will be exercised in a bona fide manner and according to law. In the case of
Chinta Lingam v. Government of India, (1971) 2 SCR 871 : (AIR 1971 SC 474), this Court observed:

"At any rate, it has been pointed out in more than one decision of this Court that when the power
has to be exercised by one of the highest officers the fact that no appeal has been provided for is a
matter of no moment.......It was said that though the power was discretionary but it was not necessarily
discriminatory and abuse of power could not be easily assumed. There was moreover a presumption
that public officials would discharge their duties honestly and in accordance with rules of law."

To the same effect is the decision of this Court in Budhan Choudhry v. The State of Bihar, (1955)
1 SCR 1045 : (AIR 1955 SC 191). It was, however, suggested that as the central Government in a
democracy consists of the political party which has the majority in Parliament, declarations under
Section 5 (1) of the Act could be used as an engine of oppression against members of parties who are
opposed to the ideologies of the ruling party. This is really an argument of fear and mistrust which,
if accepted, would invalidate practically all laws of the land; for, then even a prosecution under the
ordinary law may be considered as politically motivated, which is absurd. Furthermore, prejudice,
malice or taint is not a matter for presumption in the absence of evidence supporting it. It is well settled
that burden lies on the parties alleging bias or malice to prove its existence, and if malice or bias is
proved in a particular case, the courts would strike down the act vitiated by it, in exercise of its powers
under Articles 226, 227 or 136. This aspect of the matter was dealt with in the reference case thus :-

"Though the opinion which the Central Government has to form under clauses 4 (1) is subjective, we
have no doubt that despite the provisions of sub-clause (2) it will be open to judicial review at least
within the limits indicated by this Court in Khudiram Das v. The State of West Bengal, (1975) 2 SCR
832, 845 : (AIR 1975 SC 550). It was observed in that case by one of us, Bhagwati, J., while speaking
for the Court, that in a Government of laws "there is nothing like unfettered discretion immune from
judicial reviewability". The opinion has to be formed by the Government, to say the least, rationally
and in a bona fide manner."

84. Another limb of the argument of Mr. Bhatia regarding the provisions about declaration contained
in Section 5 (1) was that they are violative of the principles of natural justice inasmuch as they do not

41
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

provide for any hearing being given to the accused before a declaration is made. This argument, in our
opinion, is also without substance. It is to be borne in mind that at the stage when the declaration is
sought to be made there is no lis pending nor has any prosecution been launched against the accused.
Section 5 deals only with the decision taken by the Central Government to prosecute and until that
decision is notified, the prosecution does not start, and the question of an accused

being heard at that stage, therefore, does not arise at all. A couple of instances in point may be cited
here with advantage. In cases where law requires sanction to be given by the appointing authority
before a prosecution can be launched against a Government servant, it has never been suggested that
the accused must be heard before sanction is accorded. The question of sanction arises at a point of
time when there is no danger to the liberty of the subject and the accused at that stage is not in the
picture at all. It is only after sanction is accorded that an accused is brought to trial or proceedings are
started against him when he is to be heard and can challenge the validity of the sanction. Similarly,
when a first information report is filed before a police officer, the law does not require that the officer
must hear the accused before recording it or submitting a charge-sheet to the Court. Another instance
is to be found where a complaint is filed before a Magistrate who chooses to hold an inquiry under
Section 202 of the Code of Criminal Procedure before issuing process or summons to the accused.
It has been held in several cases that at that stage the accused has got no locus to appear and file
his objections to the inquiry. The right of the accused to be heard comes into existence only when
an order summoning the accused is passed by the Magistrate under Section 204 of the of Criminal
Procedure. In the case of Cozens v. North Devon Hospital Management Committee, (1966) 2 QB
330, Lord Salmon pithily observed:

"No one suggests that it is unfair to launch a criminal prosecution without first hearing the accused."

85. The argument of Mr. Bhatia which is under examination is thus also found to be wholly untenable.

86. It was then contended that in the instant case the declaration dated June 22, 1979 made under
Section 5 (1) of the Act per se shows that it had not resulted from any real application of mind by
the Central Government. The declaration is based, it is pointed out, on the existence of prima facie
evidence of the commission of certain offences by Mr. Shukla and Mr. Sanjay Gandhi and proceeds
to state that the said offences ought to be dealt with under the Act. It was vehemently argued that
at the time when the declaration was made the appellants had already been convicted and had filed
appeals in the High Court and that therefore for the Central Government to say that 'a prima facie
case' was made out was to close its eyes to the realities of the situation. The argument, in other words,
is that once the prosecution of the appellants had culminated in a conviction and an appeal therefrom,
there was no question of the existence of any 'prima facie case', and that the use of such an expression
could be intelligible only if the accused were facing criminal proceedings which had not culminated
in a conviction. The assertion about the existence of a prima facie case clearly shows, according to
learned counsel, that the Central Government did not apply its mind at all to the factors relevant to
the issuance of the declaration or that , at any rate, the application of its mind was perfunctory. We
find ourselves unable to accept this argument which fails to consider certain fundamental aspects of
the scope and ambit of Section 5 (1) of the Act and is based on a misconstruction of the nature of the
declaration which is to be made. Under the section the Government has to be satisfied on two counts
before it could issue a declaration. It must be satisfied in the first instance that there is prima facie
evidence of the commission of an offence. Secondly, it must form the opinion in accordance with
the guidelines contained in the preamble that such offence ought to be dealt with under the Act. The

42
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

argument under examination relates to the first limb of the satisfaction of the Central Government.
So, the question arises whether the condition of the existence of prima facie evidence is not fulfilled in
the case of the present declaration merely because the trial in the first court had ended in a conviction
and an appeal therefrom. The answer to the question has to be an emphatic 'no', the reason being that
if conviction is construed as evidence of the existence of something more than a mere prima facie
case, that would not mean that a prima facie case ceases to exist. That a prima facie case must be
found to exist is only the minimumrequirement for the satisfaction of the Central Government and
it would be doubly made out if the evidence available is stronger than is needed to make out only a
prima facie case. A conviction of an accused person cannot mean that there is no prima facie evidence
against him. All that it spells out is

that not only a prima facie case is made out against him but that the evidence available is even stronger
and is sufficient for a conviction. However, as the Government, while acting under the section, is to
satisfy itself only with the existence of prima facie evidence, the assertion by it in the declaration that
such evidence was available to its satisfaction cannot, by any stretch of imagination, be held to be
inapplicable to a case in which a conviction has been recorded. In this view of the matter we find the
use of the expression 'prima facie evidence' in the declaration to be fully justified even though the
trial had ended in a conviction which was under appeal on the date of the declaration. In this context,
the contents of the declaration also deserve scrutiny. It reads:

"Whereas the Central Bureau of Investigation recorded under Section 154 of the Code of Criminal
Procedure ((2) of 1974) on the 13th April, 1977, a first information report and registered a case being
RC-2/77-CIU(1) for suspected offences of a conspiracy to commit theft and actual theft of the film
materials of the film 'Kissa Kursi Kaa' produced by one Shri Amrit Nahata from the custody of the
Ministry of Information and Broadcasting:

And whereas investigations conducted by the Central Bureau of Investigation disclosed offences
committed during the period while the proclamation of emergency dated the 25th June, 1975, issued
by the President under clause (i) of Article 352 of the Constitution was in force;

And whereas after completion of investigation the Central Bureau of Investigation filed a chargesheet
on the 14th July, 1977 in the court of the Chief Metropolitan Magistrate, Delhi;

And whereas the facts mentioned in the said chargesheet disclosed offences having been committed
by Shri Vidya Charan Shukla, who was the Minister of Information and Broadcasting, Government
of India, and Shri Sanjay Gandhi, son of late Shri Feroz Gandhi, under Sec. 120-B of the Indian Penal
Code, 1860 (45 of 1860) read with Sections 409, 435, 411, 414 and 201 of the I. P. C. as well as
substantive offences under Section 409, 411, 414, 435, and 201 of the I. P. C. as also the said offences
read with Section 409 of the I. P. C.

And whereas a case (RC-2/77-CIA-I) was filed in the court of the Chief Metropolitan Magistrate,
Delhi, with respect to the said offences and the Chief Metropolitan Magistrate committed the case to
the Court of Session for trial on 22-2-1978;

And whereas the District and Sessions Judge having convicted the accused by his order dated
17-2-1979 sentenced Shri Vidya Charan Shukla and Shri Sanjay Gandhi with imprisonment and also
imposed fines on them as specified in the said order dated 27-2-1979;

43
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

And whereas Shri Vidya Charan Shukla and Shri Sanjay Gandhi filed appeals Nos. 71/79 respectively
under Section 374 (2) of the Code of Criminal Procedure, 1973 (2 of 1974) in the High Court of Delhi
on 20-3-1979 against the aforesaid conviction and that the said appeals were admitted by Delhi High
Court on 21-3-1979;

And whereas the State has also filed an appeal in the Delhi High Court on 18-5-1979 under Section
377, Code of Criminal Procedure (No. 2 of 1974) for enhancement of the sentence with respect to
the aforesaid accused persons;

And whereas the above-mentioned appeals are now pending in the High Court of Delhi;

And whereas the Central Government after fully and carefully examining the material placed before
it in regard to the aforesaid offences is of opinion that there is prima facie evidence of the commission
of the said offences by Shri Vidya Charan Shukla, who was the Minister of Information and
Broadcasting, Government of India, at the relevant period and as such a person who held high
public and political office, Shri Sanjay Gandhi and others and that in accordance with the guidelines
contained in the preamble to the Special Courts Acts, 1979 (22 of 1979) the said offences ought to
be dealt with under that Act.

Now, therefore, in exercise of the powers conferred by sub-section (1) of Sec. 5 of the Special Courts
Act, 1979 (22 of 1979), the Central Government hereby declares that there is prima facie evidence
of the commission of the afore-said offences alleged to have been committed by Shri Vidya Charan
Shukla, who was the Minister of Information and Broadcasting, Government of India, during the
relevant period, and as such held a high public and political office in India during the relevant period,
and Shri Sanjay Gandhi, son of

late Shri Feroz Gandhi, and that in accordance with the guidelines contained in the preamble to that
Act, the said offences ought to be dealt with under that Act."

87. A perusal of the declaration reveals that it gives the history of the case from beginning to end which
demonstrates that the Central Government was fully aware of the various stages through which the trial
of the appellants passed. Thus, the formation of the opinion by the Government of the existence of a
prima facie case cannot be held to be perfunctory or illusory. It has not been shown that the declaration
was in any way irrational or mala fide or based on extraneous considerations. The argument advanced
by Mr. Bhatia, therefore, must be overruled.

88. The last plank of attack on Section 5 of the Act is that the declaration is non est because it has
not been laid before each House of Parliament as required by Section 13 of the Act. This argument
merits some consideration. Section 13 runs thus :

"13. Every notification made under sub-section (1) of Section 3 and every declaration made under
sub-section (1) of Section 5 shall be laid, as soon as may be after it is made, before each House of
Parliament."

As we read the section, we are clearly of the opinion that its provisions are purely directory and not
mandatory so that if the conditions mentioned in it are not fulfilled the declaration would not be
vitiated. It is to be noted that the section does not say that until a declaration is placed before the
two Houses of Parliament it shall not be deemed to be effective, nor does the section intend that any
44
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

consequence would result from its non-compliance. More over, the matter is no longer res integra
and is concluded by several decisions of this Court, the most recent of them being M/s. Atlas Cycle
Industries Ltd. v. The State of Haryana (1979) 2 SCC 196: (AIR 1979 SC 1149), where this Court
observed:

"Thus, two considerations for regarding a provision as directory are : (1) absence of any provision for
the contingency of a particular provisions not being complied with or followed, and (2) serious general
inconvenience and prejudice that would result to the general public if the act of the Government or
an instrumentality is declared invalid for non-compliance with the particular provisions......

...... ..... .....

In the instant case, it would be noticed that sub-section (6) of Section 3 of the Act merely provides
that every order made under Section 3 by the Central Government or by any officer or authority of
the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is
made. It does not provide that it shall be subject to the negative or the affirmative resolution by either
House of Parliament. It also does not provide that it shall be open to the Parliament to approve or
disapprove the order made under Section 3 of the Act. It does not even say that it shall be subject to
any modification which either House of Parliament may in its wisdom think it necessary to provide.
It does not even specify the period for which the order is to be laid before both Houses of Parliament
nor does it provide any penalty for non-observance of or non-compliance with the direction as to the
laying of the order before both Houses of Parliament. It would also be noticed that the requirement as
to the laying of the order before both Houses of Parliament is not a condition precedent but subsequent
to the making of the order. In other words, there is no prohibition to the making of the orders without
the approval of both Houses of Parliament. In these circumstances, we are clearly of the view that
the requirement as to laying contained in sub-section (6) of Section 3 of the Act falls within the first
category, i. e., "simple laying" and is directory, not mandatory."

89. We fully agree with this view and hold that on a true interpretation of Section 13 of the Act, it
is a case of a simple laying of the declaration before each House of Parliament, and the declaration
cannot be struck down on the grounds suggested by the counsel.

90. In was then submitted that as the declaration is based on the result of an investigation held by a
Central agency even though the offences were alleged to have been committed in a State, it affects
the basic structure of the Constitution and is, therefore, void. This argument, in our opinion, is also
misconceived. The doctrine of the violation of basic structure of the Constitution or its fundamental
features applies not to the provision of a law made by a

State legislature or Parliament but comes into operation where an amendment made in the Constitution
itself is said to affect its basic features like fundamental rights enshrined under Articles 14, 19, 31
or the power of amendment of the Constitution under Article 368 and so on. The doctrine has no
application to the provisions of a Central or State law because if the statute is violative of any provision
of the Constitution it can be struck down on that ground and it is not necessary to enter into the
question of basic structure of the Constitution at all.

91. Mr. Mridul, appearing for Mr. Shukla, apart from adopting the arguments of Mr. Bhatia, as
discussed above, raised two additional points. In the first place, he submitted that Section 5 (1) of the
Act has no application to the facts of the present case because under Section 5 (1) a declaration has
45
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

to be made on the basis of the sources indicated in the section, namely, inquires conducted under the
Commissions of Inquiry Act or investigations which become otiose and would have relevance only
if his client had not been convicted. This argument, in our opinion, appears to be the same as was put
forward by Mr. Bhatia which we have already rejected.

92. It was next argued that conviction being a finding of guilt cannot be said to fall within the situation
contemplated by Section 5 (1) of the Act. Mr. Mridul contended that as Section 6 is an extension of
the scheme contained in Section 5 the former does not overrule the entire Code of Criminal Procedure
but in fact takes in only those cases which are pending at the trial stage when the declaration is made.
Once the case ends in a conviction, Section 6 spends itself out and there is no room for the application
of Section 5, according to learned counsel. It is true that Section 6 does contemplate a prosecution
which is relatable to the declaration under Section 5 but that does not debar the application of S. 5
to other stages of a criminal case, especially those specifically dealt with under Sec. 7 of the Act
which, as we shall presently show, fully covers the situation in hand. The limited field in which Sec.
6 operates does not therefore exhaust the consequences flowing from the issuance of a declaration
under Section 5.

93. Mr Mridul however contended that Section 7 would not apply to this case because its language
embraces only those appeals which arise out of a prosecution which itself is pending at the time when
a declaration is made. The argument is devoid of force as, to accept it, would be to ignore an important
part of Section 7 which runs thus :

"7. If at the date of the declaration in respect of any offence any appeal or revision against any
judgment or order in a prosecution in respect of such offence, whether pending or disposed of, is itself
pending in any court of appeal revision, the same shall stand transferred for disposal to the Supreme
Court".

94. The words "whether pending or disposed of" are significant and qualify the immediately preceding
clause "a prosecution in respect of such offence". The legislature has thus taken care to expressly
provide that an appeal or revision would be covered by Section 7 and transferable to the Supreme
Court for disposal if it is directed against a judgment or order made in a prosecution which is either
pending or has beendisposed of, the only other requirement of the section being that such appeal or
revision must itself be pending at the date of the declaration. To interpret Section 7 in such a way
that its applicability is limited to appeals or revisions arising from prosecutions pending at the trial
stage at the date of the relevant declaration is possible only if the words "or disposed of" are treated
as absent from the Section - a course which is not open to this Court in view of the express language
used. The argument is therefore repelled.

95. Finally, it was argued that by providing in Section 7 for an automatic transfer of appeals from the
High Court to the Supreme Court the legislature has exercised a judicial power which is vested in the
Supreme Court alone under Section 406 of the Code of Criminal Procedure and that the section is
invalid as it conflicts with the said Section 406. We are, however, unable to agree with this argument.
There is no question of the exercise of any judicial power by the legislature in enacting Section 7
which covers a wellknown legislative process. The decision of this Court in Smt. Indira Nehru Gnadhi
v. Raj Narain, (1976) 2 SCR 347 : (AIR 1976 SC 2299) relied upon by Mr. Mridul deals with quite a
different situation and is wholly inapplicable to the present case. There what the legislature

46
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

did was to dispose of two appeals on merits through an amendment to deprive the court of the
opportunity to decide the appeals which are pending before it. The amendment was struck down by
this Court in a judgment during the course of which Mathew, J., observed:

"At the time when the Amendment was passed, the appeal filed by the appellant and the cross appeal
of the respondent were pending before the Supreme Court. Clauses (4) was legislation ad hominem
directed against the course of the hearing of the appeals on merits as the appeal and the cross appeal
were to be disposed of in accordance with that clause and not by applying the law to the facts as
ascertained by the court. This was a direct interference with the decision of the these appeals by the
Supreme Court on their merits by a legislative judgment."

96. Thus, in that case the legislation was ad hominem and was directed against the course of the
hearing of the appeals on merits. In the instant case, however, the Parliament has done nothing of the
sort. By enacting Section 7, it has merely provided a new forum for the appeals which were pending
in the High Court and in respect of which a valid declaration, fully consistent with the provisions of
the Act, was made - a course which involved no interference with the judicial functions of the court
and was fully open to the legislature. We are thus clearly of the opinion that the decision relied upon
by Mr. Mridul is of no assistance to him and that his argument is without merit.

97. We now pass on to the next phase of the argument of Mr. Bhatia and Mr. Mridul which relates to
the nature of the procedure provided for by the Act. According to the contention of learned counsel
for the appellants, the procedure prescribed by the Act is harsher and more rigorous than that provided
for in the Code of Criminal Procedure and causes serious prejudice to the accused and is, therefore,
violative of Art. 14 of the Constitution. We might mention here that in view of our finding, that the
classification made by the Act complies with the dual test laid down by this Court and is a reasonable
classification, Article 14 would not be attracted even if the procedure is held to be harsher than that
available under the ordinary law. Apart from that, however, we find that the procedure prescribed by
the Act is not harsh or onerous as contended but is more liberal and advantageous to the accused who
is assured of an expeditious and fair trial thereunder. Before, however, dealing with this aspect of
the matter, we might dispose of an argument advanced by Mr. Bhatia that his client not having held
any high public or political office has been drawn into this case by virtue of the declaration and has,
therefore, been singled out for a discriminatory treatment. We are unable to accept this argument. It
is true that Mr. Sanjay Gandhi has never been the holder of any high public or political office but the
first clause of the preamble clearly includes within its ambit not only persons holding high public or
political offices but also others as Section 8 states :

"8. A Special Court shall have jurisdiction to try any person concerned in the offence in respect of
which a declaration has been made, either as principal, conspirator or abettor and all other offences
and accused persons as can be jointly tried therewith at one trial in accordance with the Code".

98. Section 8 thus incorporates the well-known concept or joint trial of accused persons in respect
of offences forming part of the same transaction. In these circumstances no discrimination, as
complained of by the appellants, results.

99. Coming now to the procedure prescribed by the Act, reliance was placed by learned counsel for
both the appellants on a few cases decided by this Court to show that the procedure prescribed by the
Act is harsh and unfavorable to the accused. As suggested by by Mr. Bhatia we have tried to judge
the harshness or otherwise of the procedure from the vision of an accused persons but find ourselves
47
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

unable to agree with the contention. We might mention here that in the Reference case, Chandrachud,
C. J., pointed out the undernoted three infirmities appearing in the Bill which were violative of Art.
21 of the Constitution:

(1) that there was no provision for transfer of a case;

(2) that a retried Judge could be appointed as a Special Judge; and

(3) that the appointment of a Special Judge was controlled by the Government.

100. Shinghal, J., in his dissenting note observed that if jurisdiction in the

matter of appointing a Special Judge was given to the High Court concerned leaving its Chief Justice
to designate one of the Judges of this Court as a Special Judge, the procedure may become very fair and
unexceptionable. This view, however, was not shared by the majority of Judges though they did agree
that if such a course was adopted that would be undoubtedly laudable. But then it is for the legislature
to decide upon the procedure to be followed in the matter, and it is significant for our purpose that
the aforesaid infirmities have been removed by the Act, whereunder not only is the appointment of
a Special Judge made free of control by the Government as it now rests with the Chief Justice of the
High Court concerned subject to the only condition that he must obtain the concurrence of the Chief
Justice of India therefor. A provision for transfer of case from one Special Court to another Special
Court has also been inserted in Section 10 (1). The challenge on the ground of violation of Article
21 of the Constitution fails.

101. We shall now deal with the contention that the procedure prescribed by the Act is harsh. In the
first place, it was submitted that under Section 7 an appeal pending in the High Court stands transferred
to the Supreme Court and that thus the appellant is deprived of a valuable right of having the appeal
heard and decided by the High Court which is vested in him the moment he is convicted. Secondly,
it was urged that if the appeal in the High Court was decided against the appellant, he would still
have a right to move the Supreme Court under Article 136 of the Constitution against conviction but
that by reason of the appeal having been transferred to the Supreme Court, that right also has been
taken away. In our opinion, there is no substance in this grievance. To begin with, an appeal being a
creature of statute, an accused has no inherent right to appeal to a particular tribunal. The legislature
may choose any tribunal for the purpose of giving a right of appeal. Moreover, an appeal to the High
Court is less advantageous than an appeal to the Supreme Court for the following reasons:

(1) The right of appeal given to an accused from the order of a Session Judge or Special Judge to
the High Court is not totally unrestricted. Section 384 of the Code of Criminal Procedure empowers
an Appellate Court to dismiss an appeal summarily if it is satisfied that there is no sufficient ground
for interference.

102. The relevant portion of Sec. 384 runs thus :

"384. (1) If upon examining the petition of appeal and copy of the judgment received under Section
382 or Sec. 383, the Appellate Court considers that there is no sufficient ground for interfering, it
may dismiss the appeal summarily :

Provided that :-

48
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

(a) no appeal presented under Section 382 shall be dismissed unless the appellant or his pleader has
had a reasonable opportunity of being heard in support of the same;

(b) no appeal presented under Section 383 shall be dismissed except after giving the appellant a
reasonable opportunity of being heard in support of the same, unless the Appellate Court considers
that the appeal is frivolous or that the production of the accused in custody before the Court would
involve such inconvenience as would be disproportionate in the circumstances of the case:

(c) no appeal presented under Section 383 shall be dismissed summarily until the period allowed for
preferring such appeal has expired.

(2) Before dismissing an appeal under this section, the Court may call for the record of the case".

103. Thus, an appeal to the High Court under Code of Criminal Procedure is attended with the risk
of being summarily dismissed under Sec. 384 On the other hand, an appeal to the Supreme Court is
governed by Section 11 (1) of the Act which runs thus :-

"11 (1) Notwithstanding anything in the Code, an appeal shall lie as of right from any judgment,
sentence or order, not being interlocutory order, of a Special Court to the Supreme Court both on
facts and on law".

104. An Appeal under Section 11 (1) lies as of right and both on facts and on law. Thus, the right
conferred on a convict by Section 11 (1) is wider and less restricted than the right of appeal given
by the Code of Criminal Procedure.

(2) If the appeal is filed before the Supreme Court or is transferred thereto, the accused becomes
entitled to a hearing of his case by the highest court in the country both on facts and on law and thus
gets a far greater advantage

than a right to move the Court for grant of special leave which may or may not be granted, it being
a matter of discretion to be exercised by the Supreme Court.

105. A similar view was expressed in Syed Qasim Razvi v. The State of Hyderabad, 1953 SCR 589 :
(AIR 1953 SC 156), where this Court made the following observations:-

"But in the present case the original trial was by the Special Tribunal which was invested with the
powers of a sessions court and consequently only one appeal would lie to the High Court. It is said
that the case could have been tried by the District Magistrate and in that case the accused could have
one appeal to the Sessions Judge and a second one to the High Court under the Hyderbad law. This
contention rests on a pure speculation and is hardly tenable".

106. In the above view of the matter, we are unable to agree with learned counsel for the appellants that
the procedure regarding appeals is harsher than that prescribed by the Code of Criminal Procedure.

107. There is yet another aspect of the matter which was stressed by the learned Solicitor General.
Under the provisions of Section 376 of the Code of Criminal Procedure no appeal by a convicted
person would lie in any of the following cases :-

49
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

(1) Where a High Court passes only a sentence of imprisonment for a term not exceeding six months
or of fine not exceeding one thousand rupees;

(2) where a Court of Session or a Metropolitan Magistrate passes only a sentence of imprisonment
for a term not exceeding three months or of fine not exceeding two hundred rupees;

(3) where a Magistrate of the first class passes only a sentence of fine not exceeding one hundred
rupees;

(4) where, in a case tried summarily, a Magistrate empowered to act under Section 260 passes only
a sentence of fine not exceeding two hundred rupees.

108. Thus if the Sessions Judge were to try an accused and sentence him to fine or to imprisonment
not exceeding three months, he would have no right of appeal at all. On the other hand, if a Special
Judge imposes the same sentence, an appeal lies to the Supreme Court as of right both on facts and
on law. Could it be reasonably argued in such circumstances that the right of appeal provided by the
Act was harsher or less advantageous to the accused? For the reasons given above, our answer to this
question is in the negative.

109. It was then pointed out that the right of having matters decided in revision by the High Court
has been taken away from the accused by the procedure prescribed by the Act, under Section 11 (1)
under which no appeal also lies against an interlocutory order and it was contended that the section
therefore entailed a definite procedural disadvantage to the accused. This argument also is based on
a misconception of the provisions of the Act and those of the Code of Criminal Procedure, Sec. 397
(2) of which runs thus :

"397. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any
interlocutory order passed in any appeal, inquiry, trial or other proceeding".

110. Thus, even the Code of Criminal Procedure does not provide for any revision against an
interlocutory order. As to what is the connotation of an interlocutory order is a mater with which we are
not concerned in this case. What is material is that so far as interlocutory orders are concerned, there
is no right of revision either under the Code of Criminal Procedure or under the Act. In considering
this aspect of the matter one must also bear in mind the fact that under the Act the Special Court
is presided over by no less a person who is a sitting Judge of a High Court and the possibility of
miscarriage of justice is reduced to the bare minimum. While adverting to this aspect of the case, this
Court observed in the case of V. C. Shukla v. The State through C. B. I. (AIR 1980 SC 962) (supra):

"That the Act makes a distinct departure from the trial of ordinary offences by criminal courts in that
the trial of the offences is entrusted to a very high judicial dignitary who is a sitting Judge of the High
Court to be appointed by the Chief Justice concerned on the recommendations of the Chief Justice of
India. Thus contains a built-in safeguard and a safety valve for ensuring the independence of judiciary
on the one hand and a complete fairness of trial on the other. In appointing the Special Judge, the
Government has absolutely no hand or control so that the Special Judge is appointed on the

recommendations of the highest judicial authority in the country, viz., the Chief Justice of India. This
would naturally instil great confidence of the people in the Special Judge who is given a very elevated
status".
50
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

111. We may mention here that in the case of Jagannath Sonu Parkar v. State of Maharashtra, (1963)
Supp 1 SCR 573 : (AIR 1963 SC 728), the right of appeal from an order of a Special Magistrate
directly to the High Court (by-passing the Sessions Judge) was held to be more advantageous from
the point of view of the accused. In this connection, this Court said.

"It is true that if the complaint was filed in the Court of Magistrate having jurisdiction over Deogad
alone as it could lawfully be filed, an appeal would, against an order of conviction, lie to the Court of
Session, Ratnagiri and an application in the exercise of revisional jurisdiction to the High Court from
the order of the Court of Session. But it is difficult to hold that this amounts to any discrimination.
Apart from the fact that the trial by a special Magistrate and an appeal directly to the High Court
against the order of the Magistrate may be regarded normally as more advantageous to the accused
persons, the distinction between Courts to which the appeal may lie arises out of the constitution of
the Special Magistrate and not any special procedure evolved by the Notification".

112. What is true of an appeal to the High Court from the order of a Special Magistrate equally applies
to an appeal to the Supreme Court from the order of a Special Court constituted under the Act. Thus,
viewed from any angle, the procedure prescribed by the Act cannot be said to be prejudicial or less
advantageous to the accused, much less harsher or more rigorous than the one provided in the Code
of Criminal Procedure.

113. It was then argued that though the Special Court has been given the status of a Court of Session
under Section 9 (3) of the Act, yet it has to follow, under Section 9 (1) thereof the procedure prescribed
for the trial of warrant cases before a Magistrate in Ss. 238 to 243 and 248 of Code of Criminal
Procedure. We cannot conceive how any grievance can be made on this score that the provision is
harsh. The procedure for trial of warrant cases gives a full opportunity to the accused to participate in
the trial at all its stages and to rebut the case for the prosecution in every possible manner and it has
not been pointed out how the adoption thereof for trials under the Act would be to the disadvantage
of the accused. We find that the grievance put forward is unfounded.

114. Great reliance was placed by learned counsel on the judgment in The State of West Bengal
v. Anwar Ali Sarkar, 1952 SCR 284 : (AIR 1952 SC 75) in support of the proposition that the
procedure prescribed by the Act was harsh and disadvantageous to the accused. Before referring
to certain passages in that judgment (which has been fully considered in the Reference case) we
consider it necessary to give the background and the special facts in the light of which the Judges
of this Court made the relevant observations. The West Bengal legislature passed the West Bengal
Special Courts Act (hereinafter to be referred to as the 'West Bengal Act') constituting Special Courts
and empowering the State Government to refer cases or offences or classes of cases or classes of
offences to such Courts but did not at all indicate any guidelines as to the nature of the cases to be so
referred which was thus a matter left entirely to the discretion of the Government. In other words, the
Government was given a blanket power to refer any case of whatsoever nature to the Special Courts.
Sub-sections (1) and (2) of Section 5 of the West Bengal Act are extracted below :-

"5 (1) A Special Court shall try such offences or classes of offences of cases or classes of cases, as
the State Government may by general or special order in writing, direct.

(2) No direction shall be made under sub-section (1) for the trial of an offence for which an accused
person was being tried at the commencement of this Act before any court, but save as aforesaid, such

51
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

direction may be made in respect of an offence, whether such offence was committed before or after
the commencement of this Act".

115. A perusal of these provisions would show that the State Government was given an uncontrolled
power to refer for trial offences or cases by a general or special order. Under Section 3, the Government
was empowered by a notification in the official Gazette to constitute Special Courts and Section 4

provided for the appointment of Special Judges to preside over such Courts. Even though no
conditions regulating the exercise of discretion by the State Government were laid, Sastri, C. J., upheld
the validity of the law on the ground that the State in the exercise of its governmental power was
entitled to make laws operating differently to different groups or classes of persons. Elaborating the
point, Sastri C. J., observed:

"In the face of all these considerations, it seems to me difficult to condemn Section 5 (1) as violative
of Article 14. If the discretion given to the State Government should be exercised improperly or
arbitrarily, the administrative action may be challenged as discriminatory, but it cannot affect the
constitutionality of the law. Whether a law conferring discretionary powers on an administrative
authority is constitutionally valid or not should not be determined on the assumption that such
authority will act in an arbitrary manner in exercising the discretion committed to it.......On the
contrary, it is to be presumed that a public authority will act honestly and reasonably in the exercise of
its statutory powers, and that the State Government in the present case will, before directing a case to
be tried by a Special Court, consider whether there are special features and circumstances which might
unduly protract its trial under the ordinary procedure and mark it off for speedier trial under the Act.

... ... ..

Even from the point of view of reasonable classification, I can see no reason why the validity of the
Act should not be sustained. As already pointed out, wide latitude must be allowed to a legislature
in classifying persons and things to be brought under the operation of a special law, and such
classification need not be based on an exact or scientific exclusion or inclusion."

116. It might be noticed, therefore, that even though no guidelines at all were provided by the statute,
yet Sastri, C. J., held that the classification was a reasonable one and sustained the validity of the
law. The other Judges, however, did not agree with the view of Sastri, C. J., and struck down the
provisions of Section 5 of the West Bengal Act. However, the judgment is wholly inapplicable to the
present case in which the Act not only lays down clear, explicit and exhaustive guidelines but further
requires the State Government to act only on the basis of certain specific conditions and after being
satisfied on a full application of the mind that a prima facie case was made out. We have already
indicated that by enacting Section 5, the Act makes the various clauses of the preamble as a part
of that section. Thus, any possibility of discrimination or absolute or arbitrary exercise of powers
is excluded by the Act. The case of Anwar Ali Sarkar (AIR 1952 SC 75) (supra), therefore cannot
furnish any criterion for judging the validity of any of the provisions of the Act, it is in the light of
this background that we have to examine Anwar Ali Sarkar's case. It may be mentioned that one of
the grounds which appealed to Sastri, C. J., was that the object of the West Bengal Act was to provide
for speedier trial by instituting a system of Special Courts with a simplified procedure which was
sufficient, in his opinion, to justify the validity of that Act. Fazal Ali, J., (as he then was) laid stress
on the fact that although a procedure ensuring a speedy trial was prescribed by the West Bengal Act
yet that Act had not set out any principle of classification while laying down the new procedure. He
52
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

held that in the absence of a reasonable classification a procedure which catered to a speedier trial
was itself not sufficient to justify the constitutionality of the West Bengal Act. In the instant case,
we have already pointed out that a reasonable classification of a particular set of persons or class
of persons, viz., those holding high public and political offices, has already been made and that this
classification is consistent with the object of the statute which is a rational one, viz., expeditious trial.
This was not true of the West Bengal Act. Section 5 of which was held to be violative of Article 14
by Mahajan, J., also on the ground that there was no basis for the differential treatment prescribed in
the West Bengal Act. He observed:

"Section 5 of the West Bengal Special Courts Act is hit by Article 14 of the Constitution inasmuch as
it mentions no basis for the differential treatment prescribed in the Act for trial of criminals in certain
cases and for certain offences........

By the process of classification the State has the power of determining who should be regarded as a
class for purposes of legislation and in relation to a law enacted on a particular subject".

These observations can obviously have no application to the present case because as already held by
us, the Act makes not only a classification but a classification which fulfills the dual test laid down
by this Court in several cases.

117. Reliance was placed by the counsel for the appellant on the following observations of Mahajan, J.:

"The present statute suggests no reasonable basis of classification either in respect of offenses or in
respect of cases. It has laid down no yardstick or measures for the grouping either of persons or of
cases or of offenses by which measure these groups could be distinguished from those who are outside
the purview of the Special Act. The Act has left this matter entirely to the unregulated discretion of the
provincial government". These observations also do not apply to the facts of the present case because
the Act in the present case has provided a rational basis for the classification and laid down specific
yardsticks for grouping of special class of persons and has provided a different procedure which is
not harsh (the position being different in the West Bengal Act) and which is undoubtedly favourable
and advantageous to the accused.

118. Reliance was also placed on a few observations of Mukherjea, J., where he has pointed out that
in making the classification the legislature cannot certainly be expected to provide absolute symmetry
and has held that while recognising the degree of evil, the classification should not be arbitrary,
artificial or evasive. He has stated :

"It must rest always upon real and substantial distinction bearing a reasonable and just relation to the
thing in respect to which the classification is made".

119. There can be no doubt that the present Act fulfills all the conditions laid down by Mukherjea,
J., who found that certain provisions of the West Bengal Act curtailed the rights of the accused in
a substantial manner, thereby resulting in discrimination. Here we have already pointed out that no
rights of the accused have been curtailed and that on the other hand, the procedure prescribed is more
advantageous and fair to him than that available under the ordinary law of the land, namely, the Code
of Criminal Procedure.

53
© Copyright with AIR Infotech & All India Reporter. All rights reserved
 Registered To : Dip Jyoti Chakraborty
All India Reporter

120. Finally, Mukherjea, J., pointed out that the language of Section 5 (1) of the West Bengal Act
vested an unrestricted discretion in the State Government in cases or classes of cases to be tried
by the Special Court in accordance with the procedure laid down by that Act. This infirmity is not
present in the provisions of the present Act which treats equally all persons who form part of the
classification made by the Act, the same procedure being applicable to all. The ordinary law governs
only those persons who are left out of the classification and do not fulfil the conditions of the persons
constituting the class, namely, holders of high public and political offices. Thus, the observations of
Mukherjea, J., are of no help to the appellants which is also true of passages appearing in the judgment
of Das, J., (as he then was) and cited before us. In the first place, Das, J., deals with the conditions
necessary for a valid classification, which have already been spelt out by us. There the learned Judge
held that if the State Government classified offenses arbitrarily, without any reasonable or rational
basis having relation to the object of the Act, its action will amount to an abuse of its powers. We
have already pointed out that there is no question of the classification made by the Act being arbitrary
or unreasonable because the basis for the classification is undoubtedly a reasonable one and has a
rational nexus with the object of the Act, namely, expeditious trial. We have pointed out that it will
be in the public interest that the offenders sought to be tried under the Act are either convicted or
acquitted within the shortest possible time. Bose, J., conceded that though the procedure prescribed
by the West Bengal Act may promote the ends of justice and would be welcome, yet he took serious
exception to the differential treatment resulting therefrom. He observed (AIR 1952 SC 75) :

"What I have to determine is whether the differentiation made offends what I may call the social
conscience of a sovereign democratic republic........... It is the differentiation which matters; the
singling out of cases or groups of cases, or even of offenses or classes of offenses, of a kind fraught
with the most serious consequences to the individuals concerned, for special, and what some would
regard as peculiar, treatment".

121. All these observations have, however, to be read in the light of the peculiar provisions of the West
Bengal Act which contained no guidelines, no conditions, no safeguards but conferred uncontrolled
and arbitrary powers on the Government to make the classification as it liked. This, however, is not
the case here. We are, therefore, unable to agree with learned counsel that the observations of the
Judges constituting the Bench in Anwar Ali Sarkar's case, (AIR 1952 SC 75) can be called into aid
for the purpose of striking down the Act in the present case.

122. Thus, after a consideration of the provisions of the Act, the guidelines contained in the preamble,
the procedural part of the Act and the classification made we are clearly of the opinion that none of
the sections of the Act are violative of Art. 14 or Article 21 or any other provision of the Constitution.
We hold that the classification is valid and reasonable and has a rational nexus with the object of
the Act and that the procedure prescribed is fair and advantageous to the accused. Accordingly, we
declare that the Act and its provisions are constitutionally valid and overrule preliminary objections
taken on behalf of the appellants,

Cri. Appeal No. 492 of 1979 dis-Missed; Criminal Appeals Nos.. 494and 493 of 1979
allowed;Preliminary objections overruled.

Order Accordingly

54
© Copyright with AIR Infotech & All India Reporter. All rights reserved