SHUKLA v. STATE (DELHI ADMINISTRATION)

Citation: [1980] 3 S.C.R. 500

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, P.S. KAILASAM, A.D. KOSHAL

Case summary

Bhatia contended that the decision given in the Reference Case upheld the Bill and rejected the challenge that the Bill violated Art. These two criminal appeals are directed against a judgment dated 27th February 1979 of the Sessions Judge, Delhi by which the accused...

Judgment text

V. C. SHUKLA v. STATE (DELHI ADMINISTRATION) April 11, 1980 [S. MURTAZA FAZAL ALI, P. s. KAILASAM AND A. D. KosHAL, JJ. ] Criminal Conspiracy, inf;redients of-Section 1201J of the Indian Pena{ Code, evidence required to prove criminal conspiracy explained-Approve;·s ei•idcnce, value of. Words and Phrases-"High Public or political (JjJices''-Meaning of. Special Court's Act 1979, ss. 5, 7, 9 & 11-Constitutional validity nf. Sri Amrit Nahata PW 1 was a member of Parliament and had produced & film titled "Kissa Kursi Ka" ur.. der the banner of Dhwani Prakash. The, film according to the prosecution was a grotesque satire containing a scathing criti-' cism of the functioning of the Central Government and was open to serious objections which were taken even by the Ceia. tral 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 Boord.

The film,was viewed on April 24, 1975 by an Examining Committee of the Board and whil. ::· three members were of the opinion that certificate for exhihition, with drastic cuts. '·' should b~ given, another member and Mr. N. S. Thapa, Chairman, disngreed with the opinion of their colleagues a-nd accordingly referred the matter to the Revising Committee. The Revising Committee after viewing the film agreed by 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 waB made· to the Centrit. l Government on 8-5~1975. In this connection, a letter was addressed to PW 6, Mr. S. M. Murshed, who, was at the relevant reriod 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 com- • ments PW 6 saw the film some time 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. Sreedharan, who \Vas Technical Officer incharge· also inspected the reels and found them iit order. Although Murshed, PW 6, after seeing tho film aj! reed with the opinion of the Chairman of the Board that the film may be1 open to objection on tho ground that it was full of sarcasm and contained critici~m of the political functioning of the Governmental machinery yet he was pe! ('Sonally 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, ! \iinistry of Information and Broadcasting.

The matter \Vas then examined by Mr. I. K. GujraJ, the then Minister of Information and Broadcasting but V. C. SHUKLA V. DELHI ADMN. 501 no final decision was taken. Meanwhile PW J, Amrit Nahat,. , filed a writ petition (Ex. PW I/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 riot' refused. 1he 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, 19i5 and soon thereafter A 1 took charge as the Union Minister of Informa- • tion and Broadcasting and he was of thei 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 materi sitive 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 thelir transfer to I, Safdarjung Road, then to the Maruti Comp1ex: and (iii) the actual orders alleged to have been given . l by A 2 for burning the film in the premises of Maruti Complex which operation according to thei prosecution V. 'as carried out by the approver PW 3, Khedkar and other witnesses between the 10th a·nd 24th of November 1975. The Sessions Judge, Delhi convicted V. C. Shukla (A-1) appellant in Criminal Appeal No. 494179 under section 120B rend with Ss. 409, 435, 411, ...

414 and 201 Indian Penal Code and also under section 409· Indian Penal Code in respect of the positive ptint and negative and other materia-1 of the film • ''Kissa Kursi Ka' under section 411 read with S. 109 l. P. C. ; under section 414 read with section 109 LP. C. ; oo. d under section 201 read with section 109 • I. P. C. The appellant, &tnjay 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 Ccx! e and further convicted under S.. 435, 411, 414 and 201 Penal Code in regard to the negative and other matcria. J. s of th& '· . '. k. c film, as aJso under section 409 read with section 109 of the Penal Code. Accused No. I 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 fer three months; under s~ 411 read with s. 109 to rigorous imprisonment fot one year; under s. 414 read with s. 109 to rigorous imprisonlnent for one year; under s. 201 read with s. 109 to rigorous imprisonment for one year; and 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; unde. r s. 201 in regard to the negaotive, 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 wet-e 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 G made under section 7 of the said Act, the appeals stood transferred to the Supreme Court. J 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 otberwile. R 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 classifica- V. C. SHUKLA v. DELHI ADMN. 503 tion under Art. 14. 1he decision given in the Reference case upheld the Bill and rejected the challenge that the Bill violated Art. 14 main1y on the ground that the Bill sought to put a certa'in class of persons, namely, persons holding high public or political offices who had committed offences only during the period of E1nergency. In other \vords, 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 li1nits imposed by the judgment in the Reference ca.. "e by bringing within its fold offences rommitted 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 \Vhicb related to the period bet\veen February and June 1975 on the ground that persons having committed offences during that period could not be clubbed \vith 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 per. taining 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 viol~ted. (a) Section 7 depdves a valuable right of af)peal; (b) Section 11 (I) takes away the valuabL.!

right of revision against in· terlocutory orders; (c) Section 9(3) of the Act prescribes the procedure for the trial of \\'arrant cases before the Magistrate in Sections 238 to 243 a. ad 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 1ustified, it suffers from a serious infirmity in that neither the terms "high public or political office" has been defined nor have the offences been deli~ vered 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 abrogate9 "Section 181 of the Code of Criminal Procedure. G.

The Act creates an inviQious distinction in as much as persons holding high public or political offices Would have the benefit of trial by such an experi4 enced officer as a sitting judge of a High Court. while the appellants have been deprived of (bat right and were tried by a Special Judge who was only a Sessions Judge. H. Section 5 of the Act suffers from several constitutional and legal infirmi~ ties, 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 n1ake declarations in respect of them while excluding others.

(b) The issuance of a declaration ilnder section 5(1) of the Act depends purely on the subjective· satisfaction of the Central Governn1ent 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 ! he 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 sec-tion 5( I) 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 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 pr~ ceedings which had not culminated in a conviction; and (f) the declaration made under section 5 of the Act is non est beca\ise 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 ha• been drawn into this case by virtue of a declaration and has therefore been singled p out for a discriminatory treatment. K.

Section 5(1) of the Act has no application to the fact,; 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 rel~ance only if the appellant had not been convicted. • L Conviction being a finding of1: 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. V. C. SHUKLA v. DELHI ADMN. 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 s~tion 406 of the Code of Criminal Procedure and that the section is invalid as it conflicts with section 406 Cr!. 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 when: lhe ex· panding 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-Ei 2.

It is well settled that in applying Art. 14 mathematical precision or nicety or perfect equaRimity are not required. Similarity rather than identity of treatment is enough. The court f the nation. [534 C-E] p 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 pub- ]ic 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, fii:tancial 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 interest ·H, 553 E-H, 554 CJ Syed Quasirn Razvi v. The State of Hyderabad and Ors. [19531 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 ju~tice is reduced to the barest minimum. [555 C·D] V. C. Shukla v. The State, through C. B. l. , [1980] I SCR 380; lagannath Sonu Parker v. State of Maharashtra, [1963] Suppl. I SCR 573; followed. 26. The procedure for trial of warrant cases gives a full opportuBity 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. There. fore the provisions of sections 9(1) a-a. cl (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 a.

nd bas 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 Cr!. Appeal 493/79 has not been singled out for 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 V. C. SHUKLA V. DELHI ADMN. 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 th~ same transaction. [551 C-E] Further Held (on merits) : 29. Jn order to prove a criminal conspiracy which is punishable under -section 120B of the Indian Penal Code, there must be direct or circlllll&tantial evidence1 to show that there was an agreement between two or more persons to commit an offence.

This clearly envisages that there must be • meeting of the n1inds resulting in an ultirnate decision taken by the conspirators regarding the ommission of an offence. [565 H, 566 J\] 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 con1mit an olTence. [566 A-B] In the instant case, there is no acceptable evidence connecting either of the appelJants 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 appel- _lants. 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· I 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 m:- 1hat 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 I decided to show the film and refused certification for public exhibition and passed orders for seizure of the film and its tranfer to the custody of the Ministry of Information does not disclose any offence. The decision to ban the .

film was not taken by A I 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 I is concerned. [566 C-D. 583 F-H, 584 A-BJ (i) TUI 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 prosecu· tion 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 I, Mr.

Shukla had taken over as Minister, which was merely the final scene of a drama long in process; [564 C-EJ (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 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 wa9 of the view that the film should not be certificated rfor public exhibition.. Similarly, the steps taken by the. officers of the Ministry in persuance of the ,. filn1 at Bombay a11d its transfer to Delhi ¥/as 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 behveen 17,th November 1975 to 23rd November 1975, . 1\ 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 F, charge against either A I or A 2 could be held established it would have been necessary for the Court to sift the evidence produced in sui)port 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 orthe accused which is not the ca-5e here because appellants A 1 and A 2 could JP not be said to be the only persons interested in the destruction of the film if it was as abnoxious to the then Prime1 Minister or as critical of the function~ • ing 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 therefor, 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 pretviously 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 tbe Special Courts Act, 1979 on transfer from the Delhi High Court at New Delhi from the Judgment an ~d by ii on the 21st March 1979 when the sentences of the appellants were suspended and they were released Qni bail. On the 17th May.

1979, the State also filed an appeal to Jhe 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 includihg the contravention of Articles 14 and 21 of the Constitution of India. Alternatively, it was argued that some of th~ provisions of the Act did not at all apply to the appellants and the transfer of the appeals from the High Court to 13-289SCl/80 this Court was not legal. The State has appeared through Shri Soli J.

Sorabjee who )las countered all the objections raised by the appellants and has submitted that the Act is a valid piece of legislation ahd that there is no illegality in the transfer of the appeals from the High Court to this Court. In v~ew of the nature of the preliminary objections raised by the appellants we decided to dispose them of .. before entering into the merit5 of the appeals. After bearing 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. fn order to understand the arguments advanced by learned counsel for the parties it will be necessary to state o;ortain 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 ""ard by a Bench of seven Judges and i11 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 agai. )lst 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 bdd high public or political office in India. To the extent that the claus•e 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 l Court and that this could be done by the Central Govermnent 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 th~ Constitution. Barring these infirmities, the constitutional validity of the Bill was upheld by this Court. I! may be mentioned here that during the course of arguments learned counsel for the Union gave an exp~ss undertaking tha( the defec! s v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, !. ) 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 cas~ ..

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 dn 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 w Act incorporates not only the above-extracted observations made by Chandrachud, C. J. , and Krishnal Iyer, J. but also the views expressed by the Hon'ble Members of the two Houses of Parliament. 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 doe81 non render it unconstitut. ional, 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 ·G 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: "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....... . v. c. SHUKLA v.

DELHI ADMN. (Fazal Ali, J. ) 529 Thus, both the tests are fulfilled in the instant case namely, that ( 1) the classification is fonnded 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 pursuance of the declaration made under clause 4(1) of the Bill. " The same, we hold, is true of the Act. It was_ then submitted by Mr. Bhatia that even if the dassificatiollj was valid, as the procedure prescribed by the Act is extreme! }". 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 vaild even if the procedure is harsher or disadvantageous that will not attract Art. 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 i~ 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, nnequals cannot complain of unequal treatment.

" We shall, however, deal with the question whether or not the ,• procedure is disadvantageons when we examine the argument of the learned connse] regarding sections 5, 6, 7 and 11 of the Act. Thus, to sum np, the position so far as this part of the argument is concerned is as follows:- ( l) Separate grouping of holders of high offices for purposes of expeditious criminal action to be taken by superior conrts is a reasonable and valid classification because it enhances confidence on the rule of Jaw, 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 Art. 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 becanse 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 foc 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 digniiaries without reference to any period during which they were alleged to have committed offences • would be violative of Art. 14 of the Constitution. On li 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 that period meant bad classification for the I reason that the period last mentioned could not be dis- ' tinguished from other pre-or post-Emergency periods on any reasonable basis. This view of the Court I! could not be interpreted as laying down a law of uni- ;... _,, versal application that no Special Act on a permanent basis classifying offenders possessing particular characteristics or attributes and providing for their pro- 'I secution under a special procedure would be invalid or violative of Art. 14. Thus, we do not think that the opinion of the Supreme Court in any way amount- ~ ,.. ed to disapproval or condemnation of a pernianent law in futuro bringing within its scope all holders of. high public or political office. It was then argued by Mr.

Bhatia that assuming the classification of persons holding high public or political offices to be justified, it suff- I v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J. ) 5 31 ers from a serious infirmity in that neither the term 'high public or political office' has been defined nor have the offences been delineated or defin" lic 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 ~overeign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescnbed by law. It implies a delegation of a portion of the sovereign power. It is 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 functi~ of Govermnent, either executive, legislative or judicial, to be exercised by the holder for the public benefit. " (72 Calcutta Weekly Notes, ;p. 64, Vol. 72) Similarly, Wade and Phillips in 'Constitutional Law' defines politlcal offices thus:- "The Cabinet is the body of principal Miilisten with whom rests the real direction of policy. We speak of the Ministry or the Administration of a particular Prime Minister with reference to the full body of political office holders who from time to time hold the reins of Govermnent, i. e. , the Ministers of the Crown and their Parliamentary Secre- 1' taries. " O. Hood Phillips in 'Constitutional and Administrative Law' (4th Edition, p.

312 & 314) defines the hierarchy of Govermnent Deport- >-·· ments 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 Ministry 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 v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J. ) 533 Under-Secretaries of State if the Minister himself is a Secretary of State. As their nrune 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 ....

Tbe det'ailed administration of the work of a Government Department is carried out by "permanent" civil • servants. Although, like Ministt>rs, 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 Ministers, Parliamenmry 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'. " Asirvatham in his book 'Political Theory' (9th Ed p.

352) defines Political Executive thus :- "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 1 command the confidence of Parliament. They are mem- ·~. bers 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 thns :- "The word "political" is defined as of or pertaining to p01icy, p01itics, or conduct of government. ...

or pertaining ,A 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 Bouvier to be pertaining to policy or the administration of government. People v. Morgan, 90 III 558, 563. 8 The word "political" means that which pcrtaim to gov· ernment of a nation ........ "(P. 802) A perusal of the observations made in the various textbooks 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 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. 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 t11e power nor the resources to commit offences of the type described above. We are, therefor('. satisfied that tlm terms 'persons holding high public or political offices' is selfexplanatory 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 cm the home front ;is. also I v. c. SHUKLA v. DELiil ADMN. (Fazal Ali,!. ) 535 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 pos- • sible opportunity. It was then contended that even the nature and character of the • offences have not been defined in the Act which introduces an clement of vagueness in the classification. We are, however, unable to ogree with this contention because clause (4) of the preamble clearly ind·1cates 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 hy Government through its agencies disc'lose offences committed by such holders.

" 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 bt; 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 accountable in law and does not leave any room for doubt. Mr. Bhatia, however, submitted that even if the pcr> 95. 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('), 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 is uncanalised and unguided as to amount to a carte blanche! to discriminate. " In the case of Mali Ram Deka etc. v. General Manager, N. E. F. Railways, Maligaon, Pandu, etc. ('), 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 equa,Jity clause. " r 3 In the case of V. C. Shukla v. The State through C. B. l. ( ), this .. - Court pointed out that where a discretion is conferred on a high. authority such as the Central Government it must be presumed that (1} [1962] 2 s. c. R. 125 (2) [1964] 5 S. C. R. 683. (3) [1980] 1 S. C. R. 380. v. c. SHUKLA v. DELHI ADMN. (Fazal AU, 1. ) 5 41 the Government would act in accordance with law and in a bona fide A. manner, .

and said : "In fact, this Court has held in a number of cases that where a power is vested in a very high authority, the abuse • of the power is reduced to the minimum. " • 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 s. 5(1) becomes a part of that section. As the power h;ts 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 will the guidelines mentioned in the preamble, the attack based on discrimination is unfounded and is hereby repelled. Another ll! llied argument advanced by Mr. Bhatia was that the issuance of a declaration under s. 5(1) depends purely on the subjective satisfaction of the Central Government and under sub-section (2) of s.

5 such a declaration cannot be called into question by any court so that there would be an elemenb of inherent bia~ 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 bona fide manner and according to law. In the case of Chinta Lingam & Ors. v. Government of India & Ors.

,(') this Court observed: "At any rate, it has been pointed ont 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 anti in accordance with rules of law.. " (I) [1971] 2 S. C. R. 871. To the same effect is the -decision of this Court in Budhan Ch0:,dJ? 'J' & Ors. v. The State of Bihar('). 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 s. 5( J) nt 'no 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 prudically all laws oi the land; for, tlien even a prosccut;oo 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 Arts. 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 clause 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 thi:> Court in Khudaran Das Deo v. The State of West Bengal & Ors.

(1975, 2, SCR 832, 845). 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 c. li:-:. cretion re1nove fron1 judlcial reversibility'~. 1-he: opinion has to be formed by the Gcvcrnment, to set the least, rationally and in a bona fide manner. " Another limb of the argument of Mr. Bhatia regarding the provisions about declaration contained in s. 5 (1) was that' they are \iolative; of the principles of natural justice inasmuch as they do not 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 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 dpes 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 JI) [1955] I S. C. R. ! 045, v. c. SHUKLA v. DELHI AOMN. (Fazal Ali, J. ) 543 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 docs 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 s. 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 c. has got no locus to appear and fi1e his objections to the inquiry. The right of the accused to be heard comes into existence only when au order summoning the accused is passed by the Magistrate under s. 204 of the Code of Criminal Procedure. In the case of Cozens v. North Devon Hospital Mangement Committee & Anr,(') Lord Salmon pithilv observed : "No one suggests that it is unfair to launch a criminal prosecution without first hearing the accused. " The argument of Mr.

Bhatia which is under examination is thus also found to be wholly untenable. I! was then contended that in the instant case the declaration elated June 22, 1979 made under s. 5(I) 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 C. entral . 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 (I) [1966] 2 Q. B. 330. Gove. rnment 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. tbi' argument which fails to consider certain fundamental aspects of the scope and ambit of s. 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 nuder the Act. The 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 soro~ thing more than a mere prima facie case, that would uot mean that a prima facie case ceases 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 'E 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 i1Js 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 mattet 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-2177-CIU (1) for suspected offences of a conspiracy to commit theft and actual theft of the film materials of the film 'Kissa Kursi Kaa' pro- v. c. SHUKLA v. DELHI ADMN. (Fazal AU, J.

) 545 duced by one Shr~ Amrit Nahata from the custody of the Ministry of Information and Broadcasting : AND WHEREAS investigations conducted by the Central Bureau of Investigation disolosed 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 section 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 109 of the I. P. C. : AND WHEREAS a case (RC/2177-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 22-2-78: AND WHEREAS the District and Sessions Judge having convicted the accused by his order dated 17-2-79 sentenced Shri Vidya Charan Shukla and Shri Sanjay Gandhi with imprisonment and also imposed fines on them as specified ---~ in the said order dated 27-2-79 : AND WHEREAS Shri Vidya Charan Shukla and Shri , Sanjay Gandhi filed appeals Nos.

71/79 and 72/79 respectively under Section 374(2) of the Code of Criminal Procedure, 1973 (2 of 1974) in the High Court of Delhi on 20-3-79 against the aforesaid conviction and that the said appeals were admitted by Delhi High Court on 21-3-79 : AND WHEREAS the State has also filed an appeal in the Delhi High Court on 18-5-79 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 hi 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 pr!

ma fade evidence of the commissiol) 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 Act, 1979 (22 of 1979) the said offences ought t be dealt with under that Act.

NOW, THEREFORE, in exercise of the powers conferred by sub-section (1) of Section 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 aforesaid offences alleged to have been committed by Shri Vidya Charan Shukla, who was the Minister of Infor- 1 mation 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. " A perusal of the declaration reveals that it gives the history of the case from beginning to el)d which demonstrates that the Central Government was fully aware of the various stages through which the trial of the appellantsi 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 deolaration was in any way irrational or mala fide or based on extraneous considerations. The argument advanced by Mr. Bhatia, therefore, must be overruled. • ', The last plank of attack on s 5 of the Act is that the declaration is non est because it has not been laid before each House of Parliament -as required hy s. 13 of the Act. This argument merits some consideration. Section 13 runs thus : "13. Every notification made under sub-section (! ) of section 3 and every declaration made under sub-section (1) v. c. SHUKLA v. DEi. HI ADMN. (Fazal Ali, !. ) 5 4 7 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 consequence would result from its non-compliance. Moreover, 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. & Ors. v.

The, State of Haryana(') 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 provision 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 noncompliance with the particular provision.... *** *** 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 sha! l 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 G, 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 the Houses ·of Parliament is not a condition precedent but subsequent to the making of the order. In other words, there is no prohi- (1) [1979] 2 s. c. c. 196. 15-289 SCI/80 ' - " r. bition 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 contamed in sub-section (6) of Section 3 of the Act falls within the ·first category, i. e. , "simple laying" and is directory, not mandatory. " 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 dec:-laration before each House of Parliament and the declaration cannot be struck down on he grounds suggested by the counsel. It was then submitted that as the declaration is based on the iesult 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 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. 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 s. 5(1) of the Act has no application to the facts of the present case because under s.

5 (1) a declaration has to be made on the basis of the sources indicated in the section, namely, inquiries conducted under the Commissions of Inquiry Act or investigations which become otiose and would have relevance only if Iris client had not been convicted. This argument, in our opinion, appears to be the same as was put for- . • ward by Mr. Bhatia which we have already rejected. 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 v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J. ) 549 A, when the declaration is made. Once the case ends in a conviction, section 6 spends itself out and there is no room for the npplication 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 section 5 to olher stages of a criminal case, especially those specifically • dealt with under section 7 of the Act which, as we shall presently show, 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. 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 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 'l\ithout merit. 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 mieht 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 (1) [1976] 2 S. C. R. 347 v. c. SHUKLA v. DELHI ADMN. (Fazal AU, !. ) 5 51 classification, Art. 14 would not be attracted even if the procedure is h tracted below:- "5(1) A Special Court shall try such offences or classes of offences or cases or classes of cases, as tbe 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 direction may be made in respect of an offence, whether such offence was committed before or after the commencement of this Act.

" 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 s. 3, the Government was empowered by a notification in the Official Gazette to constitute Special Courts and s. 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, CJ. , upheW the validity of the law on the ground tbat the State in the exercise of its governmental power was entitled to make laws operating differently to different groups or classes of persons. Elaborating tbe 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, ' 1f the discretion given to the State Government should be exercised improperly or arbitrarily, tbe 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 constitntionally 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 vrew of reasonable classification, I can see no reason why the validity of the Act should not be sustamed. 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. " It might be noticed, therefore, that even though no guidelines ar. 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 fully application of the mind that a prima facie case was mac'. e O'Jl. We ha>() already indicated that. by enacting s. 5, the Act makes the various clauses of the preamble as part of that section. Thus, any possibility of discrimination or absolute or arbitrary exercise of powers is ei y A-1. He further admits that after the Janata Government took over in March 1977 while be 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 imprnbabk, firstly, because of his failure to draw the attention of the Supreme Court to I the threats, etc. Secondly, it is impossible to believe that after the ·• 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 undoubtc ld him in the presence of Tripathi, PW 57, that A-1 had decided to keep all material relating to the film in his (A-l's) personal custody, that detailed arrangements for the delivery of the material would be made by 1 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, and 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 Vya~ (Chairman of 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 confidentally' which particular words were attributed to A-1 to show his crimiual intent.

In this connection, Ghose, PW 39, wbo 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 scat. When I entered the room Shri Dayal was already conversing with Shri l Khandpur. Looking at us, namely, myself and V. S. Tripathi and Shri Khandpur. Shri Dayal generally enquired where 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. " The stand of Tripathi, PW 57, who was also allowed to be crossexamined 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 nega. tive 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 hls return to Bombay.

Roughly this is all that I remember and in addition that if was early in the afternoon. " 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, CJ. 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 Kurs\ Kaa'. The then Minister of I & B, gave instructions to Shri L. Dayal, Jt. Secy. (Information) in my presence that hf( wanted the positives & negatives etc. of the film, "Kissa Kursi Kaa" to be handed over to him, in hls custody immediately & confidentially.

The Minister also said that the arrangements for · trnnsportation will be made by him and Shri Dayal should get in touch with the personal staff for this. " The witness also de! lied the cOJ[rectness of the assertion that in bis presence later on Shri Dayal, PW 2,1 had told Shri Kbandpur, 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 hls said statement to the police where the assertion appears. Even Khandpur, PW 4, who has fully supported the prosecution; has not said anything in his evidence to indicate that PW2 had said that .. v. c. SHUKLA v. DELHI ADMN. (Fazal Ali, J. ) 575 the materials should be 'carefully and confidentially" collectf' present at the Railway Station to receive the film and hence it cannot be said that A-1 took an unusua~ interest in seeing that the film is properly brought from Bombay to Delhi and placed in his custody.

F Coming back to the evidence of PW2, there is yet another circumstance which he proves and which merits some consideration. , According to the witness, in t11e special leave petition filed by PW 1, 12th March 1976 was fixed for screening the film. The witness adds that he tock instructiqn, 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 u the orders of the Minister should be carri5'd 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 v. c. SHUKLA v. DELHI ADMN.

(Fazal Ali, J. ) 577 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 Minister. Ultimately, however, as PW 1, Amrit Nahafa, ·withdrew the petition nothing further happened. It appears that while the petition was pending in the Supreme Court, contempt proceedings • were taken ag~inst some, of the oJlicers including PW 2 who also filed 0 four affidavits, one of them on the 28th November 1977 and the other three on the 28th February 1978. These a! lidavits 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 other films received in connection with 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 a11 assertion made earlier by the witness in his own hand. That assertion a