V. C. Shukla Vs. State (Delhi Administration) [1980] INSC 77 (11 April 1980)
1980 Latest Caselaw 77 SC

V. C. Shukla Vs. State (Delhi Administration) [1980] INSC 77 (11 April 1980)

FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA KAILASAM, P.S.

KOSHAL, A.D.

CITATION: 1980 AIR 1382 1980 SCR (3) 500 1980 SCC (2) 665

CITATOR INFO :

RF 1981 SC 873 (52) R 1982 SC 839 (25) RF 1986 SC 791 (5) R 1988 SC1531 (163)

ACT:

Criminal Conspiracy, ingredients of-Section 120B of the Indian Penal Code , evidence required to prove criminal conspiracy explained-Approver's evidence, value of.

Words and Phrases-"High Public or political Offices"- Meaning of. Special Court's Act 1979, ss. 5, 7, 9 & 11- Constitutional validity of.

HEADNOTE:

Sri Amrit Nahata PW 1 was a member of Parliament and had produced a film titled "Kissa Kursi Ka" under the banner of Dhwani Prakash. 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. 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, 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 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 & Broadcasting, Incharge of film and T.V. Projects and was appointed, Joint Secretary on 1st of May 1975. 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 Film Division Auditorium, situate at 1, Mahadev Road, New Delhi. In pursuance of these directions PW 1 deposited the positive print and an entry thereof (Ext. 17A) was made by the Librarian-cum-Projectionist of the Auditorium. PW 17, K. P.

Sreedharam, who was a Technical Officer incharge also inspected the reels and found them in order.

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. PW 6 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 501 no final decision was taken. Meanwhile PW 1, Amrit Nahata, filed a writ petition (Ex. PW 1/D) in the Supreme Court. On the 23rd of the 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 9-7-75. Thus the Ministry of Information and Broadcasting had taken a tentative decision to refuse certification to the film because of its objectionable and offensive nature.

Emergency was proclaimed on the night of 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 that 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 Ex. PW 6/D. On July 10, 1975 A 1 directed that the film be banned for 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 to the Government. In pursuance of the decision taken by the Central Government PW 39, S. Ghosh Deputy Secretary, incharge of the films and T. V. 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 in the godown of the Board. As, however, a final order had been passed by the Government banning the film. PW, 1, Amrit Nahata filed a petition for special leave in the Supreme Court on 6-9-1975. This petition was heard on 29-10-75 and the Court directed the Government to screen the film on 17-11-75 in the Auditorium for being shown to the Judges constituting the Bench. In pursuance of the order of the Court, intimation was sent to the Ministry concerned and PW 62, Mr. S. M. H. Burney who was then Secretary Ministry of Information and Broadcasting directed that immediate action be taken to implement the orders of the Supreme Court and that arrangements should be made to book the Auditorium for 17-11-75. By a letter dated 5-11-75 (Ext. PW 2/A2) the Supreme Court was also informed regarding the steps taken.

Sometime thereafter PW 2, L. Dayal took over as Joint Secretary (Films Division) in place of Mr. Murshed. The film, however, was not shown to the Judges of the Supreme Court on the ground that the films were not traceable.

After the general elections of March 1977, the new Government directed the Central Bureau of Investigation to investigate into the matter of disappearance of the films.

The C.B.I. accordingly investigated the matter and found that A 1, V. C. Shukla and A 2 Sanjay Gandhi conspired together and ultimately burnt them in Maruti Complex.

Therefore C.B.I. filed charge sheets against V. C. Shukla A 1 and Sanjay Gandhi A 2 under several provisions of Penal Code. The prosecution examined several witnesses to prove criminal conspiracy of A 1 and A 2 more particularly under three stages, namely, (i) the deposit of the positive print in the Auditorium and its alleged transfer to the personal custody of A 1; (ii) 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 (iii) the actual orders alleged to have been given 502 by A 2 for burning the film in the premises of 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.

The Sessions Judge, Delhi convicted V. C. Shukla (A-1) appellant in Criminal Appeal No. 494/79 under section 120B read with Ss. 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 Ka' under section 411 read with S. 109 I.P.C.; under section 414 read with section 109 I.P.C.; and under section 201 read with section 109 I.P.C. The appellant, Sanjay Gandhi (A 1) in Criminal Appeal No. 493/79 was convicted by the Sessions Judge, Delhi under section 120B read with Ss. 409, 435, 411, 414 and 201, Penal Code and further convicted under Ss. 435, 411, 414 and 201 Penal Code in regard to the negative and other materials of the film, as also under section 409 read with section 109 of the Penal Code .

Accused No. 1 was sentenced under s. 120B read with Ss. 409, 435, 411, 414 and 201 to two years rigorous imprisonment; under s. 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 s. 409 regarding the positive print of the film to two years rigorous imprisonment and a fine of Rs 5000 and in case of default further rigorous imprisonment for three months; under s. 411 read with s. 109 to rigorous imprisonment for one year; under s. 414 read with s. 109 to rigorous imprisonment for one year; under s. 201 read with s. 109 to rigorous imprisonment for one year; under s. 435 read with s. 109 to rigorous imprisonment for one year and six months. Accused No. 2 was sentenced under s. 120 B read with ss. 409, 435, 411, 414 and 201 to rigorous imprisonment for two years; under s. 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 s. 411 to rigorous imprisonment for one year; under s. 414 to rigorous imprisonment for one year; under s. 201 in regard to the negative, etc., to rigorous imprisonment for one year; under s. 201 in regard to 13 trunks, etc., to rigorous imprisonment for one year and under s. 409 read with s. 109 to rigorous imprisonment for two years. The aforesaid sentences of imprisonment were ordered to run concurrently in the case of both the accused.

On being convicted by the Sessions Judge, Delhi, both the accused filed appeals before the Delhi High Court against their convictions and sentences, 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 the Supreme Court.

The appellants raised the following preliminary objections as to the constitutional validity of Sections 5, 7, 9 and 11 of the Act, apart from the plea that their conviction and sentence were not based on any evidence, legal or otherwise.

A. Even having regard to the principles laid down the Supreme Court in the Reference case, the Act fails to pass the tests laid down for a valid classification under Art. 14. The decision given in the Reference case upheld the Bill and rejected the challenge that the Bill violated Art. 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, the constitutionality of the Bill was upheld on the ground that the legislation was confined to select offences committed by a particular class of persons during the Emergency period.

The impugned Act transgressed the limits imposed by the judgment in the Reference case by bringing within its fold offences committed prior and subsequent to the Emergency and thus was in direct conflict with the opinion of this Court rendered in the Reference case. In other words 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. Thus 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 Art. 14 and the classification made by the Act is in direct contravention of the opinion given by this Court in the Reference Case.

B. 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.

(a) Section 7 deprives a valuable right of appeal;

(b) Section 11(1) takes away the valuable right of revision against interlocutory orders;

(c) Section 9(3) of the Act prescribes the procedure for the trial of Warrant cases before the Magistrate in Sections 238 to 243 and 248 Crl. P.C., while treating the special Court as Court of Sessions.

C. Assuming the classification of persons holding high public or political offices to be justified, it suffers from a serious infirmity in that neither the terms "high public or political office" has been defined nor have the offences been delivered or defined so as to make the prosecution of such offenders a practical reality.

D. Even the nature and character of the offences have not been defined in the Act which introduces an element of vagueness in the classification.

E. Parliament was not competent to pass a special Act and create Special Courts for a particular set of offenders.

F. The Act seeks to change the situs of the Court and virtually abrogates section 181 of the Code of Criminal Procedure.

G. The Act creates an invidious distinction in as much 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.

504 H. Section 5 of the Act suffers from several constitutional and legal infirmities, namely, (a) Section 5 (1) suffers from the vice of excessive delegation of powers so as to violate Article 14 in as much 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 to make declarations in respect of them while excluding others.

(b) The issuance of a declaration under section 5(1) of the Act 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.

(c) 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.

(d) the provisions about declaration contained in Section 5(1) are violative of the principle of natural justice in as much as they do not provide for any bearing being given to the accused before a declaration is made.

(e) in an 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 the mind by the Central Government. Once the prosecution of the appellants had culminated in a conviction and an appeal there from 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; and (f) the declaration made under section 5 of the Act is non est because it has not been laid before each House of Parliament as required by section 13 of the Act.

J. The appellant not having held any high public or political office has been drawn into this case by virtue of a declaration and has therefore been singled out for a discriminatory treatment.

K. Section 5(1) of the Act has no application to the facts of the present case because under section 5(1) a declaration has to be made on the basis of the source indicated in the section, namely, inquiries conducted under the Commissions of Inquiry Act or investigations which become otiose and would have relevance only if the appellant had not been convicted.

L. Conviction being a finding of guilt cannot be said to fall within the situation contemplated by section 5(1) of the Act. 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 5 spends itself out and there is no room for the application of section 5.

M. 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.

505 N. 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 section 406 Crl. P.C.

Allowing the appeals, the Court ^

HELD: (Regarding Constitutional validity of the Act)

1. 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 legislature 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.

[522 D-E]

2. It is well settled that in applying Art. 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 Art. 14 so as to destroy or frustrate any beneficial legislation. What Art. 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, Art. 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 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 Art. 14 of the Constitution must show that there has been discrimination against a person who is similarly situate or equally circumstanced.

[522 E-H, 523 A] State of U.P. v. Deoman Upadhyaya, [1961] 1 SCR 14, followed.

3. The classical tests laid down for the application of Art. 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.

[523 D-F]

4. 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 506 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 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. [525 F-H, 526 A]

5. That Purity of life is a desired goal at all times itself is a sufficient justification for the classification made by the Act which widens its scope to include offenders of a particular type, whether before, during or after the Emergency. 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. Passing of such a Special Act is within the Legislative competence of Parliament.

[526 D-E, 527 G-H, 528 B]

6. The Act does not suffer from any infirmity 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. The classification made has a reasonable nexus with the object sought to be achieved. 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.

[528 E-G, 529 G-H, 530 A]

7. The opinion of the Supreme Court in Re. Special Act, in no way amounted to disapproval or condemnation of a permanent law in future bringing within its scope all holders of high public or political office. [530 G-H] The Bill was challenged before the Supreme Court on the touch stone of Art. 14 on several groups. 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 Art. 14 of the Constitution. On 507 the other hand, this Court made 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 another period meant bad classification for the reason that the period last mentioned could not be distinguished from either 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 Art. 14.

[530 A-G]

8. 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. [531 C-D, F] 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 holders thereof to take major policy decisions. Thus, the term '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 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.

[534 C-E] 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 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 decisions on the home front as also regarding external affairs and if their actions are tainted by breach of trust, corruption or other extraneous consideration, 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. [534 F-H, 535 A] 508

9. Clause 4 of the preamble to the Special Courts Act clearly indicates the nature of the offences that would be tried under the Act. [535 B] The words 'power 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 friable 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 accountable in law and does not leave any room for doubt. 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. [535 D-G]

10. Sections 7 and 11 of the Special Courts Act are within the legislative competence of the Parliament. That is to say Parliament has the competence to provide for the creation of Special Courts and to confer jurisdiction on the Supreme Court by providing that an appeal shall lie as of right from any judgment or order of Special Court to the Supreme Court both on fact and on law.

[536 A-D] In re. Special Courts Bill [1979] 2 SCR 476; applied.

11. The Act neither seeks to change the situs of the Court nor virtually abrogates Section 181 of the Code of Criminal Procedure. [536 E] In re. Special Court Bill, [1979] 3 SCR; followed.

12. The question of the appellants being tried by the Special Judge appointed under the Special Courts Act could not arise because the said Special Court did not exist at all even when the trial of the appellant was concluded. The First Information report against the appellants was lodged on 13th April 1977 and the chargesheet 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. The existence of such fortuitous circumstances cannot attract Article 14.

[536 G-H, 537 A-B] Khandige Sham Bhatt and Ors. v. The Agricultural Income Tax Officer, [1963] 3 SCR 809; Dantuluri Ram Raju and Ors. v. State of Andhra Pradesh and Anr., [1972] 1 SCR 421;

applied.

13. Section 5(1) does not suffer from the vice of excessive delegation of powers so as to violate Article 14.

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 lay down clear guidelines and provide sufficient safe-guards against any abuse of power. Thirdly, clause (4) of the preamble clearly lays down that the power under s. 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 509 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 mayor would be exercised in a discriminatory manner. [538 E-H, 539 A] The power conferred on the Central Government is controlled by the guidelines contained in the preamble which by virtue of the provisions of s. 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 s. 5(1) and, therefore, in conformity with the guidelines mentioned in the preamble, the attack based on discrimination is unfounded. [541 B-C] Dr. N. B. Khare v. The State of Delhi, [1950] SCR 519, Kathi Raning Rawat v. The State of Saurashtra, [1952] SCR 435; Matajog Dubey v. H. C. Bhari, [1955] 2 SCR 925 In Re.

The Kerala Education Bill, 1957, [1959] SCR 995 Jyoti Parshad v. The Administrator for the Union Territory of Delhi, [1968] 2 SCR 125; Moti Ram Dekha etc. v. General Manager, N.E.F., Railways, Maligaon, Pandu etc. [1964] 5 SCR 683; V. C. Shukla v. The State through C.B.I., [1980] 1 SCR 380; followed.

14. 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. [541 D-F] Chinta Lingam and Ors. v. Government of India and Ors., [1971] 2 SCR 871; Budhan Chaudhary and Ors. v. The State of Bihar, [1955] 1 SCR 1045; referred to.

15. The contention that declarations under s. 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 is one arising out 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. [542 A-D] In Re. Special Courts Bill, [1979] 2 SCR 476 referred to.

16. At the stage when the declaration is sought to be made there is no list 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.

[542 F-G] Cozons v. North Devon Hospital Management Committee and Anr., [1966] 2 Q.B. 330: quoted with approval.

17. Under section 5(1) of the Act the Government has to be satisfied on two counts before it could issue a declaration. It must be satisfied in the first 510 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 condition of the existence of prima facie evidence is fulfilled in the case of the present declaration though the trial in the first Court had ended in a conviction and an appeal therefrom, 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 cease to exist. That a prima 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. In this view of the matter the use of the expression 'prima facie' evidence in the declaration is fully justified even though the trial had ended in a conviction which was under appeal on the date of the declaration. [544 A-G] 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. [546 F-G]

18. The provisions of Section 13 of the Special Courts Act 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 consequences would result from its non-compliance. On a true interpretation of section 13 of the Act, it is clear that it is a case of a simple laying of the declaration before each House of Parliament. [547 A-B, 548 B] M/s Atlas Cycle Industries Ltd. and Ors. v. State of Haryana, [1979] 2 SCC 196; applied.

19. The doctrine of the violation of basic structure of the Constitution or its 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 Art. 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.

[548 C-E] 511

20. It is true that section 6 of the Act does not 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 which fully covers the situation in hand. The limited field in which section 6 operates does not therefore exhaust the consequences flowing from the issuance of a declaration under section 5 of the Act. [549 A-B]

21. The words "whether pending or disposed of" are significant and qualify the immediately preceding clause "a prosecution in respect of such offences". 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 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. Therefore to interpret section 7 in such a way as 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 section-a course which is not open to this Court in view of the express language used.

[549 E-G]

22. There is no question of the exercise of any judicial power by the legislature in enacting section 7 of the Act which covers a well known legislative process. By enacting section 7, Parliament 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. [550 A, E-F] Indira Nehru Gandhi v. Sri Raj Narain, [1976] 2 SCR 347; distinguished.

23. Since the classification made by the Act complies with the dual test laid down by the Supreme Court and therefore held to be a reasonable classifications, 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, 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.

[550 G-H, 551 A]

24. 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 reason:

"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." While an appeal to the High Court under the Code of Criminal Procedure is attended with the risk of being summarily dismissed under section 384, an appeal under section 11(1) of the Act which runs thus:

512 "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." is not so.

An appeal under s. 11(1) lies as of right and both on facts and on law. Thus, the right conferred on a convict by s. 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.

Therefore the procedure regarding the appeals under the Act is not harsher than that prescribed by the Code of Criminal Procedure.

[552 D-H, 553 E-H, 554 C] Syed Quasim Razvi v. The State of Hyderabad and Ors.

[1953] SCR 589; applied.

25. Even the Code of Criminal Procedure does not provide for any revision against an interlocutory order.

Section 397(2) of the Criminal Procedure Code expressly bars revision against interlocutory orders. Inasmuch as there is no right of revision either under the Code of Criminal Procedure or under the Act, it cannot be said that section 11(1) of the Act creates a definite procedural disadvantage to the accused. In fact 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 barest minimum. [555 C-D] V. C. Shukla v. The State, through C.B.I., [1980] 1 SCR 380; Jagannath Sonu Parker v. State of Maharashtra, [1963] Suppl. 1 SCR 573; followed.

26. 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. Therefore the provisions of sections 9(1) and (3) of the Act cannot be said to be harsh.

[556 E-G] State of West Bengal v. Anwal Ali Sarkar, [1952] SCR 284 explained and distinguished.

27. None of the sections of the Act are violative of Article 14 or Article 21 or any other provision of the Constitution. The classification made in the Act 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. [561 E-F]

28. The appellant in Crl. Appeal 493/79 has not been singled out for a discriminatory treatment. It is true that he has never been the holder of any high public or political office but the first clause of the preamble 513 clearly includes within its ambit not only persons holding high public or political offices but also others. Section 8 thus incorporates the well known concept of joint trial of accused persons in respect of offences forming part of the same transaction. [551 C-E] Further Held (on merits):

29. In order to prove a criminal conspiracy which is punishable under section 120B 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 the minds resulting in an ultimate decision taken by the conspirators regarding the ommission of an offence.

[565 H, 566 A]

30. 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 two or more persons to commit an offence. [566 A- B] In the instant case, there is no acceptable evidence connecting either of the appellants with the existence of any conspiracy. Even taking the main part of the prosecution case at their face value, no connection has been proved with the destruction of the film 'Kissa Kursi Ka' and the two appellants. The evidence produced by the prosecution falls short of the standard of proof required in a criminal case.

The prosecution failed to prove either there was any existence of any conspiracy between A 1 and A 2 to destroy the film 'Kissa Kursi Ka' by burning it or to commit any other offence in respect of the film. There is evidence to show that there was any meeting of minds between A 1 and A

2. 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 show the 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 does not disclose any offence. The decision to ban the film was not taken by A 1 secretly or clandestinely but after a full fledged discussion in the coordination Committee meeting attended by senior officers of various ministries as deposed by 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 insofar as the role therein of A 1 is concerned. [566 C-D, 583 F-H, 584 A-B] (i) Till 9-7-75 i.e. the date by which the notice to show cause why certification of the film 'Kissa Kursi Ka' was made returnable, neither A 1 nor A 2 was anywhere in the picture. The facts disclosed by the prosecution ex facie show that objection 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; [564 C-E] (ii) Even at the stage of proposed exhibition of the film to the Judges of the Supreme Court who constituted the Bench and heard the Special Leave Petition i.e. 17-11-75 there was absolutely no evidence to show that there 514 was any meeting of minds of A 1 and A 2 nor is there any material to indicate that A 2 played any role in the burning of the film. The decision to ban the film was 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 persuance of the film at Bombay and its transfer to Delhi was in the nature of routine to see that the decision taken by the Government was implemented. As soon as the Ministry received the orders of the Supreme Court for screening the film on 17-11-1975, immediate steps were taken to comply with the orders of the Court. Admittedly between 17th November 1975 to 23rd November 1975, A 2 was either away to Hyderabad or Sikkim as proved by DW 3. This negatives the story of the approver connecting A 2 with the burning of the film. [565 E-H, 581 C-D, 582 A] 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 negatives 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. [584 B- D] But the connection of A 1 or A 2 therewith remains unproved.

Had 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 the Court 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 the Court 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 there for, in the absence of proof in that behalf proof which would exclude all reasonable doubt. [594 D-G] (iii) A mere identification by a witness of a person in the Court for the first time who was not known to the witness and who had only caught a glimpse of the person, long time before is valueless, in the absence of the operative witness being tested by a previously held Test Identification does not exclude possibility of mistakes in identification. [576 B-D]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 492, 493 and 494 of 1979.

Appeals under section 7 of the Special Courts Act, 1979 on transfer from the Delhi High Court at New Delhi from the Judgment and 515 Order dated 27-2-1979 of the Sessions Court at Delhi in Sessions Case No. 340/1978.

J. S. Wasu, M. L. Nanda and M. N. Shroff for the Appellant in Crl. A. 492/79.

K. L. Arora, K. G. Bhagat, Harish Gulati, Madan Bhatia and D. Goburdhan for the Appellant in Crl. A. 493/79.

P. R. Mridul, Rajinder Singh, O. P. Sharma, R. C.

Bhatia and Vivek Tankha for the Appellant in Crl. A. 494/79.

K. L. Arora, K. G. Bhatat, Harish Gulati and D.

Goburdhan for the Respondent No. 1 in Crl. A. 492/79.

Rajinder Singh B. R. Handa and O. P. Sharma for the Respondent No. 2 in Crl. A. 492/79.

Soli J. Sorabjee, Sol. Genl. Ram Jethmalani, Grish Chandra, S. Markandeya and S. B. Jaisinghani for the Respondent in Crl. As. 493-494/79.

The following Judgments were delivered FAZAL ALI, J. These two criminal appeals are directed against a judgment dated 27th February 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 to fines.

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 s.5 (1) of the Act as a consequence of which the appeals stood transferred to this Court.

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 516 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.

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 December 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 Art. 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 clause 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 Art. 21 of the Constitution.

Barring these 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 517 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 a 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 Rajya 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.

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

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 public or political officers, so that they may have complete confidence in the Judge who tries their case.

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 s. 5(1) of the Act the clauses of the preamble become a part of the Act itself.

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 518 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 clause (1) of article 352 of the Constitution;

(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 such 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;

519 (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 to 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) 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 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 520 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" a