P (PLP)

The sole question for decision is whether in view of the West Punjab Public Safety Act XVIII of 1949 the trial of a sessions case with the aid of the assessors was in order? The murder was committed on 17th of June 1549 and the trial com menced on 14th of November 1949. The procedure followed was that prescribed for the trial of summons cases by Chapter XX of the Code of Criminal Procedure. The learned Session Judge, Lahore, found the accused guilty under section 304, Part I, Indian Penal Code, and sentenced him to three year's rigorous imprison ment on 16th of November 1949. The case was taken cognizance of, on the revision side, and as there appeared to be a conflict over the necessity of holding the Sessions trial with the aid of assessors, My Lord the Chief justice referred it to a Division Bench for an authoritative pronouncement on the point. The West Punjab Public Safety Act XVIII of 1949 was notified in the gazette on 13th of August 1949 and "shall be deemed in force as from the fifteenth day of August 1949, this is immediately on the expiry of the Punjab Public Safety Act, 1947" Section 30 deals with "Procedure for trial of offences". It says:‑‑ "30 (1) In any area the Government may by notification direct that all the offences under this Act, and any other offence under any other law for the time being in force, or any class or description of offences, shall notwithstanding anything in the Code be tried in accordance with the procedure prescribed for the trial of summons cases by Chapter XX of the Code, subject in the case of summary trials to the provisions of sections 263 to 265 of the Code. (2) The provisions of subsection (1) shall apply to the trial of offences mentioned therein committed before the notification aforesaid". No notification as required by this section has yet issued and section 30 therefore could not be invoked for the purposes of the trial of an offence. The operation of the Punjab Public Safety Ordinance, 1946, and the Punjab Public Safety Act, 1947, was however, distinctly saved by section 36 of the Act XVIII of 1949, Clause (2) of, section 36 relevant for the purposes of this case is reproduced below:‑ "(2) In so far as is not inconsistent with the Provision of this Act, the expiry of the Punjab Public Safety Act, 1947, shall not‑ (a) affect the previous operation of that Act or anything duly done or suffered thereunder; or (b) affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder; or (c) affect any penalty, forfeiture or punishment incurred in respect of an offence committed against that Act; or (d) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed under that Act: Provided that notwithstanding anything contained in this ‑Act all cases pending or instituted before the fifteenth day of August, 1949, shall be tried in accordance with the provision of section 35 of the 'Punjab Public Safety Act, 1947." The proviso is very significant; "all cases pending or instituted before the fifteenth day of August, 1949, shall be tried in accordance with the provision of section 35 of the Punjab Public Safety Act, 1947". The present case was pending on 15th of August 1949 and one has to turn to section 35 of the Punjab Public Safety Act, 1947, to find out the correct procedure. Section 35 of the Punjab Public Safety Act, 1947 runs:-- "35. (1) All offences under this Act, or under any other law for the time being in force in a dangerously disturbed area, and in any other area all offences under this Act and any other offence under any other law which the Provincial Government may certify to be triable under this Act shall be tried by the Courts and according to the procedure prescribed by the Code. Provided that in all cases the procedure prescribed for the trial of summons cases by Chapter XX of the Code shall be adopted, subject in the case of summary trials to the provisions of sections 263 to 265 of the Code. (2) For the avoidance of doubt, it is hereby declared that the provisions of subsection (1) shall apply to the trial of offences mentioned therein committed before the commencement of this Act, and in a dangerously disturbed area committed before the date of the notification under clause (b) of section 2 in respect of it." For the trial of offences, the Province was divided into (a) dangerously disturbed area and (b) any other area, i.e., not falling in (a). All offences under the Punjab Public Safety Act whether Committed in (a) or (b) above, became triable in accordance with the special procedure of summons cases. In addition, (i) in a dangerously disturbed area all offences under any other law for the time being in force and (ii) in any other area, the offence under any other law which the Provincial Government may certify to be triable under the Act, were made subject to the special procedure. An area could be declared "dangerously disturbed area" by a notification by the Provincial Government under section 2 of the Punjab Public Safety Act II of 1947. The entire Province was declared "dangerously disturbed area" on 8th of October 1947 and the trial of all offences under any other law for the time being in force" was governed by section

35. The offences falling under the Indian Penal Code would naturally be included "under and other law for the time being in force". Section 37 of the Punjab Public Safety Act II of 1947, made further drastic amendments to the Code of Criminal Procedure. Those necessary for the purposes of this case may be quoted:‑ "For the purpose of trials under this Act, the Code shall be deemed to have been amended as follows:‑ (1) (i) For sections 208 to 220 inclusive the following shall be deemed to have been substituted namely:‑ When it appears from a police report that the offence is one triable exclusively by a Court of Session or one which in the opinion of the Magistrate ought to be tried by such Court the Magistrate shall on perusal of the police report or when the accused appears or is brought before him, make over the case to the Sessions Court having jurisdiction and shall forward the accused, if in custody and shall send all police reports relating to the case to that Court; and that Court shall thereupon proceed with the trial of the case following the procedure for the trial of summons cases.' (ii) All references in the Code to commitment shall be deemed to refer to the action prescribed by this section. (2) Section 268 and section 350 of the Code shall be deemed to have been omitted'." The usual procedure for commitment to the Court of Session laid down in sections 208 to 220 of the Code of Criminal Procedure, was done away with. The case, which appeared from the police report to be exclusively triable by a Court of Session or which in the opinion of the Magistrate, ought to be tried by the Sessions Court, was to be simply "made over to the Sessions Court" having jurisdiction. In subsection (2), section 268 of the Criminal Procedure Code was omitted and trial of a case "made over to the Court of Session" was not required to be held with the aid of assessors. The effect of section 37, therefore, was that in a Sessions Court there were to be no committal proceedings and no choosing of assessors to aid at the trial, which was to be of a summons case by reason of section

35. The West Punjab Public Safety Act XVIII of 1949 contains no provisions corresponding to those contained in section 37 of the Punjab Public Safety Act, 1947. It has saved section 35 only and not section 37 of the old Act. In other words, it prescribes the procedure of a summons case in the trial of a sessions case but has not prescribed that the commitment proceedings or the choosing of the assessors should be dispensed with. The result is that in all cases pending before the Sessions judge before the 15th day oil flutist 1949, the procedure of a summons case shall be followed and the trial held with the aid of the assessors as required by section 268 of the Criminal Procedure Code and the sessions cases instituted or pending before a Magistrate before the 15th August 1949, shall have to pass through the mill of the commitment proceedings before reaching the Sessions Court. The procedure of the case under revision, therefore, was perfectly correct. A. H.