S.C.R.

SUPREME COURT REPORTS 435

bona fide, even if good faith can be held to be a defence 1952

at all in a proceeding for contempt. What is more, Bathina Ramtt·
he did not express any regret for what he had done krishna Reddy
either in the High Court or before us and his behaviour v.
Joes not show the least trace of contrition. In these The State of
circumstances, we think that the appeal cannot suc- Madras:.
ceed and must be dismissed.

-
Appeal dismissed.
Agent for the appelliant : S. Subrahmanyam.
Agent for the respondent : P. A. Mehta.

KATHI RANING RAWAT 1952

ti.
p,,,. 27.
THE STATE OF SAURASHTRA
[PATANJALI SASTRI c. J., FAZL ALI, MEHAR CHAND
~1h.IHJAN, MuKERJEA, DAs, CHANDRASEKH.,RA
A1YAR and VIVIAN BosE JJ.]
Saurasiitra State Public Safety (Third Amendment) Orditzanu
(LXVI of 1949), ss. 9, 10, 11-Law empowering State to constitute
Special Court,· to try special classe..- of ofjences-Constittttional
11alidity-Contraventio11 of fundamental rig/it to equal protection of
laws-Ess~ntiais of valid clas.<ifimtion-I>c:legation of legislative
powers--r:omritutio11 of lndia, .1rts. 13, 14.

The Saurashtra State Public Safety .Measnrcs Ordinance,

19-18, was p~5'ed "to provide for pul1lic safety, maintenance of
public order and preservation of peace and tranquillity in the
State of Saurashtra." As crimes involving violence such as
dacoity and murder were increasing, this Ordinance was amend-
ed by the Saurashtra State Public Safety Measures (Third Amend-
ment) Ordinance, 1949, which, by secs. 9, JO and 11, empower-
ed the State Government hy notification in the official gazette
to constitute Special Courts of criminal jurisdiction for such
,1rea as may he specified in the notification, to appoint Special
fudges to prc,ide over such Conrts and to invest them with
jurisdiction to try such offences or classes of offences or such
cases or classes of cases as the Government may, by general or
special order in writing, direct. The procedure laid down by
 436 SUPREME COURT REPORTS [1952]
-, ...
1952 the Ordinance for trial before such Courts varied from the nor-
mal procedure prescribed by the Criminal Procedure (-:ode in two
Kathi Ran in g material respects, viz., there \Vas no provision for trial ·by jury
Rawat or v,rith the aid of assessors, or for enquiry before con1mitment
to sessions. In exercise of the po\vers conferred by this Ordi-
"·
The State of nance the Government, by a notification, constituted a Special
Saurasktra. Court for certain areas and empowered that Court to try
offences under secs. 183, 189, 302, '04, 307, 392 and certain other
sections of the Indian Penal Code \Vhich \\'ere specified in the
notification.
It was conten<led on behalf of the appellant who had been
convicted by the Special Court under secs. 302, 307 and 392 of
the Indian Penal Code read· with sec. 34, that the Ordinance of
1949 and the notification above-mentioned contravened J\rt. 14
of the Constitution and were therefore ultra vires and void :
Held, per PATANJALI SAsTRI C. J., FAZL Au, MuKHF.llJEA and
-
D1i.s JJ.-(:~.1EHR CHAND MAHAJAN, CttANDRASEKnA:n.A A1YA1t
and BosE Jj. dissenting)-That the impugned Ordinance in so
far as it authorised the State Government to Jirect offences or
classes of offences or ch1sses of cases to be tried by the Special
Court did not contravene the provisions of Art. 14 and was not
ultra vireJ or void. The notification i~sued under the Ordinancr.
w::i.s also not void.
PATANJALI SAsTRI C. J.-All legislative differentiation is not.
nece$sarily di$criminatory. Discrimination invol\'es an element
of unfavourable bias, and it is in that sense that the i;:xpression has -.,
to he understood in the context. Equal protection claims under ' '
Art. J4 arc exan1incd 'vi th the presun1ption that the State action
is reasonable and justified. 1'hough differing procc-durcs might
involve disparity in treatn1cnt of per'.'ons trie<l under then1, such
disparity is 11Dt in it<:clf sufficient to out\\'eigh this presumption
and e::.tahlish discrimination unless the <legree of disparity goes
beyond what the reason for its existence demands, ~.g., 'vhen it
-
an1ounts to a denial of a fair and impartial trial. 111.e impugned
Ordinance having been passetl to co1nbat the increasing tempo of
cert:1.in types of regional crime~ the t\vo-fold classification on thr-
lines of type and territory adopted by the said Ordinance read
with the notification issued thereunder was reasonabler, and the
degree of disparity of treatment involved W:1.S in no \vay in
•
excess of \Vhat the situation den1anded.
\Vhile on the one hand it cannot be said that any variation of
procedure which operates 1naterially to the disadvantage of the
accused is discrin1inatory and violates _r\rt. 14, the other extreme
vie\v that Art. 14 provides no further constitutional protection
to personal liberty than \vhat is afforded by :\rt. 21 is also
wrong.
F'AZL :\LI J.--~r\ distinction nlust be dra,vn l~twcen "discri-
1nination \vithout reason'' and "discrimination with reason".
 S.C.R. SUPREME COURT REPORTS 437
The whole doctrine of classification is based on this distinction 1952
and on the well-known fact that the circumstances which govern
one set of persons or objects may not necessarily be the same Kathi Raning
.as those governing another set of persons or objects so that the Rawat
question of unequal treatment does not really arise as between v.
persons governed by different conditions and different ~ets of The State of
circumstances. The clear recital of a definite objective in the Saurashtra.
-earlier Ordinance and the impugned Ordinance which amended
it, furnished a tangible and rational basis of classification and
....... the OrJinance and the notification <lid not violate Art. 14. [The
Legislature should however have recourse to legislation iikc this
only in ,·ery special circumstances.]
.MuKHERJEA J.-Where the legislative policy is clear and
definite and as an effective method of carrying out that policy
>
a. discretion is vested by the statute upon a body of administra-
tors or officers to make selective application of the law to certain
classes or groups of persons, the statute itself cannot be condem-
ned as a piece of discriminatory legislation. In such cases, the
power given to the executive body would import a duty on it to
classify the subject matter of legislation in accordance with the:
objective indicated in the statute. If the administrative body
proceeds to classify persons or things on a basis which has no
rational relation to the objertiYc of the legislature, its action
can certainly be annulled as offending against the equal protection
·clause.
The preamble. of the main Ordinance (IX of 1948) taken
,,. '
along with the surrounding circumstances disclosed a definite
legislative policy and objective, and the impugned Ordinance
cannot therefore he held to be unconstitutional merely because
.. it vested in the Government the authority to constitute Special
Courts and to specify the classes of offences to he tried by such
courts with a view to achieve that objective. The notification
issued by the Government was also not void as it did not proceed
on any unreasonable or arbitrary basis hut on the other hand
there was a reasonable relation between the classification made
by the notification and the objective that the legislation had in
vie,v.
Though it is a sound and reasonable proposition that when
the nature of two offences is intrinsically the same and they are
punishable in the same manner, a person accused of one should
not he treated differently from a person accused of the other,
yet in determining the reach and scope of a particular legisla-
tion it is not necessary for the legislature to provide abstract
~ymrnetr)'. A too rigid insistence on anything like scientific
classification is neither practicable nor desirable.
0As J.-The relevant part of sec. 11 properly construed and
understood does not confer an uncontrolled and unguided power
on the State Government; on the contrary, the power is
·controlled by the necessity of making a proper classification
 438 SUPREME COURT REPORTS [1952]
1952 which is to be guided by the prc..'lmble in the sense that the
classification must have a rational relation to the object of the
Kathi Raning Ordinance as recited in the preamble. The classification effected
Rawat by the in1pugned Ordinance and the notification thus satisfied
v. the t\vo conditions necessary for a valid classification! viz., that
The State of jt inust not be arbitrary but must be founded on an intelligible
Sattrashtra. diffcrentia, and that differentia rnust have a rational relation to
the object sought to be achieved by the Act. The Ordinance and
the notification did not therefore contravene Art. 14 of the
Constitution.
MAHAJAN ].-Section l l of the Ordinance suggests no rea~
sonable basis for classification either in respect of offences or
in respect of cases, nor has it laid down any measure for the
grouping either of persons or of cases or of offences, by which
tncasure these groups could be distinguished from those outside
the purvie\v of the Ordinance. The \vords used in the preamble
to the n1ain Ordinance and the fact that sec. 9 of the impugned
-
Ordinance provides that the po\\'Cr can be exercised for any
particular area cannot limit the plain and unambiguous language
of sec. 11 and the said section is therefore unconstitutional.
j

CHANDRASEKHARA AIYAR J.-Sections 9 and 11 do not lay

Jo~'n any classification. The preamble to the earlier Ordinance
also indicates no classification as the object stated there -is ct
general one which has to be kept in vie\v by every enlightened
Government or system of adn1inistration. The classification
adopted in the notification also is not a rational one.
BosE J.-The differentiation effected by the impugned Ordi-
nance and the notification lssued thereunder travels beyond
...
•
bou nJs \Vhich are Jcgithnate and the Ordinance therefore offends

-
Art. 14 and is invalid.
Held also, per curiam, that the Ordinance was not invalid on
the ground that it involved delegation of legislative powers.
The State of West Bengal v. Anwar Ali Sarkar ([l952l
S.C.R. 284 ), In re Delhi L<uus Act, 1912, etc. ( [ 1951] S.C.R. 747) and
King Emperor v. Bcnoarilnl Sarma [72 I.A. 57] referred to. f

CRI1vflNAL APPELLATE JURISDIC'TION : Criminal

Appeal No. 15 of 1951.
Appeal under Arts. 132(1! and 134(1) (c) of the
Constitntion of Inclia agamst the Judgment and
Order dated 28th February, 1951, of: the High Court
of Saurashtra at Rajkor (Shah C.J. and Chhatpar J.)
in Criminal Appeal No. 162 of 1950. The material
facts appear in the Judgment.
S. L. Chibber (amicus curia), for the appellant. -r~
B. Sen, for the respondent.
 S.C.R. SUPREME COURT REPORTS 439
195'2. February 27. The following Judgments 1952
were delivered.
Kathi Raning
PATANJALI SAsTRI C.J.-This appeal raises ques- Rawat
tions under article 14 of the . Const'1tution more or less v.
The State of
similar to thos.e dealt with by this Court in Criminal Saurashtra.
Appeal No. 297 of 1951, The State of West Bengal v.
Anwar Ali Sarkar('), and it was heard in part along Patanjali
with that appeal but was adjourned to enable the res- Sastri C /.

-
pondent State to file an affidavit explaining the circum-
stances which led to the enactment of the Saurashtra
State Public Safety Measures (Third Amendment)
Ordinance, 1949 (No. XLVI of 1949), here'inafter re.
ferred to as the impugned Ordinance.
As in the West Bengal case, the jurisdiction of the
Special Court of Criminal Jurisdiction, which tried and
convicted the appellant, was challenged on the ground
that the impugned Ordinance, under which the Court
was constituted, was discriminatory and void. The
objection was overruled by the Special Judge as well
as by the High Court of Saurashtra on appeal and the
appellant now seeks a decision nf this Court on thl"
)" ". point.
The impugned Ordinance purporti; to amend the
Saurashtra State Public Saftey Measures Ordinance
(No. IX of 1948) which had been passed "to provide
f:or public safety, maintenance of public urder and pr·~­
servation of peace and tranqui.~lity in the State of
Suarashtra", hv the insertion of sections 7 to 18 whfrh
deal with the .establishment of Special Courts of criminal
jurisdiction in certain areas to try certain classes of
• offences in accordance with :i >implified and 5hortenecl
procedure. Section 9 empowers the St:ite by notifica-
tion to constitute Special Courts for such :ireas as may
be specified in the notification and section 10 provides
f:or appointment of Special Judges to preside over such
courts. Section 11 enacts tliat the Special Judge shall
try "such offences or classes of offences or such
cases or classes of cases as the Government may,
by general or special order in writing, direct''.
(I) Since repor~<l as fl 9521 S.C.R. 284.
 440 SUPREME COURT REPORTS [ 1952]
1952 Then follow provisions prescribing the procedure·.
Kathi Raning
applicable· to · the trial . of such offences. The
Raum only variations in such procedure from the normal
v. procedure in criminal trials in the State consist of the
xi.. s1o1. •! abolition of trial by jury or with the aid of assessors
Saumhtra. and the elimination of the inquiry before commitment
P:;;;;: u : in sessicins cases. Even under the normal procedure
Saatri b~ J. trial by jury is not compulsory unless the Government
so directs (sections 268 and 269 (I)). while_ assessors
are not really members of the court and their opinion
is not binding on the judge with whom the respon-
sibility for the decision rests. Nor can the commit-
ment proceeding in a sessions case be said to be an essen- ·
tial requirement of a fair and impartial, trial. though
its dispensation may involve the deprivation of cer-
tain advantages which an accused person may other-
wise enjoy. Thus the variations from the normal pro-
cedure are by no means calculated to imperil the .
chances of a fair and impartial trial. .
In exercise of th.e power conferred by sections 9,
10 and ·11, the Government issued the notification
• No. H/35-5-C dated 9/11February,1950, directing that
a Special Court shall be constituted for certain special
areas and -that it shall try certain specified offences
which included offences under sections 302, 307 and
- 392 read with section 34 of the Indian Penal Code
(as adapted and applied to the State of Saurashtra) for
which the appellant was convicted and sentenced.· · ..
It is contended on behalf of the appellant that sec-
tion 11 and the notification referred to above are
discriminatory in that the offences alleged to have
been committed by the appellant within the specified
areas are required to be .tried by the Special Judge.
under the special procedure, while any person com-
. mitting the same offences outside those areas would
be tried by the ordinary courts under the ordinary
procedure. It is also urged that sections 9 and 11 by
- empowering the State Government to establish• a
Special Court and to direct it to try under_a special
procedure such offences as may be notified by the
Government, in effect, authorise the Gove!llII!ent tQ
r
S.C.R. SUPREME COURT REPORTS 441
amend section 5 of the Criminal Procedure Code read 1952
with the Second Schedule (as adapted and applied to
Kathi Raning
the State of Saurashtra), which provides that "all Rawat
offences under the Indian Penal Code shall be investi- v.
gated, enquired into, tried and otherwise dealt with The State of
according to the provisions hereinafter contained", Saurashtra.
and that delegation of such power to the executive
Patanjali
Government was beyond the competence of a legis- Sastri C. /.
lature and was, therefore, void.
On the first point many of the considerations
which weighed with me in upholding the constitu-
tionality of section 5(1) of the West Bengal Special
Courts Act, which is in identical terms with Section 11
of the impugned Act, apply a fortiori to the present
case. The West Bengal case(') arose out of a reference
by the State Government of certain individual cases
to the Special Court for trial and I there expressed
the view that it was wrong to think that classification
was someth'ing that must somehow be discoverable in
every piece of legislation or it would not be legislation.
That way of regarding classification, I pointed out,
tended only to obscure the real nature of the problems
for which we have to find solution. In the present
case, however, the State Government referred nor
certain individual cases but offences of certain
kinds committed in certain areas and so the ob-
jection as to discriminatory treatment is more easily
answered on the line of reasoning indicated in my
jud¥~ent in the West Bengal case(1). Again, the
vanat1ons from the normal procedure authorised by
the impugned Ordinance are less disadvantageous to
the persons tried before the Special Court than under
the West Bengal Act. It was, however, said that any
variation in procedure: which operates materially to
the disadvantange of such persons was discriminatory
and violative of article 14. On the other hand, it was
contended on behalf of the respondent State that,
in the field of personal liberty, the only constitu-
tional safeguards were those specifically provided
in artides 20 to· 22, and this Court having held in
(I) fl952l S.C.R. 28+.
 442 SUPREME COURT REPORTS [1952J
1952 Gopalan' s case(') that any procedure prescribed by ·'"
Kathi Ran in g
law satisfies the requirements of article 21 (the only
Rawat article relevant here) the impugned Ordinance which
v. prescribes a special procedure for trial of offences
The State of falling within its ambit could not be held to be un-
Saurashtra. constitutional. Reliance was placed on a decision of
Paianiali
a Full Bench of the Hyderabad High Court (Abdur
Sastri C. ]. Rahim and others v. Joseph A. Pinto and others) ( 2 ) ;,
which seems to lend some support to this view. I am, ,,...
however, of opinion t.hat neither of these extreme
contentions is sound.
All legislative differentiation is not necessarily dis-
criminatory. In fact, the word "discrimination" does
not occur in article 14. The expression "di·scriminate
against" is used in article 15 ( 1) and article 16 (2),
and it means, according to the Oxford Dictionary,
"to make an adverse distinction with regard to; to
distinguish unfavourably from others". Dis.crimina-
tion thus involves an element of unfavourable bias and
it is in that sense tl1at the expression has to be under-
stood in this context. If such bias is disclosed and is
based on any of the grounds mentioned in article 15
and 16, it may well be tl1at the statute will, without ·;

more, incur condemnation as violating a specific con-

stitutional prohibition unless it is saved by one or
other of ilie provisos to those articles. But tl1e
position under article 14 is different. Equal pro-
tection claims w1der that article are examined
with the presumption that the State action is
reasonable and justified. This presumption of con-
stitutionality stems from the wide power of classifi-
cation which the legislature must, of necessity, possess
in making laws operating differently as regards dif-
ferent groups of persons in order to give effect to its
policies. The power of the State to regulate criminal
trials by constiruti,ng different cour~s , with different
procedures according to the needs of different parts of
its territory is an essential part of its police power-
{cf. Missouri v. Lewis)( 3 ). Though the differing
(1) [1950] S.C.R. 88. (3) 161 U.S. 22.
(2) A.LR. 1951 Hyderabad 11. »\'
 S.C.R. SUPREME COURT REPORTS 443

procedures might involve disparity in the treatment of 1952

the persons tried under them, such disparity is not by
Kathi Raninz
itself sufficient, in my opinion, to outweigh the pre- Rawat
sumption and establish discrimination unless the degree v.
of disparity goes beyond what the reason for its The State of
existence demands as, for instance, when it amounts Saurashtra.
to a denial of a fair and impartial trial. It is, therefore,
Patanja/i
not correct to say that article 14 provides no further Sastri C. /,
constitutional protection to personal liberty than what
is afforded by article 21. Notwithstanding that its
wide general language is greatly qualified in its
practical application by a due recognition of the State's

- necessarily wide powers of legislative classification,

article 14 remains an important bulwark( against dis-
criminatory procedural laws.
In the present case, the affidavit filed on behalf of
the respondent State by one of its responsible officers
states facts and figures relating to an increasing
number of incidents of looting, robbery, dacoity, nose-
cutting and murder by marauding gangs of dacoits in
certain areas of the State, and these details support
the claim that "the security of the State and public
peace were jeopardised and that it became impossible
to deal with the offences that were committed 'in
different places in separate courts of law expeditiously."
The statement concludes by pointing out that the

-
areas specified in the notification were the "main zones
of the activities of the dacoits as mentioned above."
The impugned Ordinance having thus been passed to
combat the increas'ing tempo of certain types of
regional crime, the two-fold classification on the lines
of type and territory adopted in the :impugned
Ordinance, read with the notification issued thereunder~
is, in my view, reasonable and valid, and the degree
of disparity of treatment involved is in no way in
excess of what the situation demanded.
On the second point, the appellant's learned counsel
claimed that the majority view in In re The Delhi Law1
Act, 1912, etc.(1) supported his contention. He attempt-
ed to make this out by piecing together certain dicta
....1 (1) fl95ll S.C.R. 747.
 444 SUPREME COURT REPORTS [1952]
1952 found m the several judgments delivered in that case.
While undoubtedly certain definite conclusions were
Kathi Raning
Rawat
reached by the majority of the Judges who took part
v. in the decision in regard to the constitutionality of
The State of certain specified enactments, the reasoning in each case
Saurashtra. was different and it is difficult to say that any parti-
cular principle h~s been laid down by the majority
Patanjali
Sastri C. /.
which can be of assistance in the determination of
other cases. I have there expressed my view that
legislatures· in this country have plenary authority to
delegate their power to make law.< to subordinate
agencies of their choice and such delegation, however
inexpedient or undesirable politically, is constitutio·n-
ally competent. I accordingly reject this contention. ..
It follows that the Special Judge had jurisdiction to
try the appellant and the persons accused along with
him.
As the majority concur in overruling the preliminary
objection the appeal will be heard on the merits.
FAzL Au J.-This is an appeal by one Kathi Raning
Rawat, who has been convicted under sections 302,
307 and 392 read with section 34 of the Indian Penal
Code and sentenced to death and to seven years' rigor- '
•~
ous imprisonment. The appellant was tried by a
Special Court constituted under the Saurashtra State
Public Safety Measures (Third Amendment) Ordinance,
1949 (Ordinarrce No. LXVI of 1949), which was issued
by the Rajpramukh of Saurashtra on the· 2nd Novem-
..
ber, 1949, and his conviction and sentence were •pheld
on appeal by the State High Court. He has preterred
an appeal to this Court against the decesion of the
High Court.
The principal question which arises in this appeal is
whether the Ordinance to which reference has been
made is void under article 13(1) of the Constitution
on the ground that it violates the. provisions of arti-
cle 14. It appears that on the 5th April, 1948, the
Rajpramukh of Saurashtra State promulgated an
· Ordinance called the Criminal Procedure Code, 1898
(Adaptation) Ordi~ance, 1948 (Ordii1ahce No. xq of
 S.C.R. SUPREME COURT REPORTS 445
1948), by which "the Criminal Procedure Code of the 1952
Dominion of India as in force in that Dominion on
Kathi Ranint:
the 1st day of April, 1948" was made applicable to Rawat
the State of Saurashtra with certain ·modifications. In v.
the same month, another Ordinance called the Sau- The State of
rashtra State Public Safety Measures Ordinance (Ordi- Saurashtr11.
nance No. IX of 1948) was promulgated, which provid- Fazl Ali f. 1

ed among other things for the detention of persons

acting in a manner prejudicial to public safety,
maintenance of public order and peace and tranquillity
in the State. Subsequently, on the 5th November,
1949, the Ordinance with which we are concerned,
>
namely, the Saurashtra State Public Safety Measures
(Third Amendment) Ordinance, 1949, was promulgated,
which purported to amend the previous Ordinance by
inserting in it certain provisions which may be sum-
marised as follws:-
Section 9 of the Ordinance empowers the State
Government by notification in the Official Gazette to
constitute Special Courts of diminal jurisdiction for
s,uch area as may be specified in. the notification. Sec-
tion 11 provides that a Special Judge shall try such
offences or classes of offences or such cases or classes
of cases as the State Government may, by general or
special order in writing, direct. Sections 12 to 18 lay
down the procedure for the trial of cases by the
Special Judge, the special features of which are as
follows:-
(1) The Special Judge may take cognizance of
offences without the accused being committed to his
court for trial;
(2) There is to be no trial by jury or with the aid
of assessors;
(3) The Special Judge should ordinarily' record a
memorandum only of the substance of the evidence of
each witness; and
(4) The person convicted has to appeal ro the
~~ High Court within 15 days from the date of the
sentence.
6-S S. C: Indial71
 SUPREME COURT REPORTS [1952}

1952 The Ord'inance further provides that the provisions •

..
of sections 491 and 526 of the Code of Criminal Pro-
Kathi Ran in g cedure shall not apply to any person or case triable by
Rilwlll
v. the Special Judge, and the High Court may call for the
The State of record of the proceedings of any case tried by a Special
Saurashtra. Judge and may exercise any of the powers conferred on
an· appellate court by sections 423, 426, 427 and 428
Fazl Ali J. of the Code. •

-
From the foregoing summary of the provisions of
the Ordinance, it will appear that the difference bet-
ween the procedure laid down in the Criminal Pro-
cedure Code and the procedure to be followed by the
Special Judge consists mainly in the following matters :-
( 1) Where a case is triable by a court of session,
no commitment proceeding is necessary, and the
Special Judge may take cognizance without any com-
mitment;
(2) The trial shall not . be by jury or with the aid
of assessors;
(3) Only a memorandum of the substance of the·
evidence of each witness is ordinarily to be recorded; '
( 4) The period of limitation for appeal to the
High Court is curtailed; and
(5) No court has jurisdiction to transfer any case
from any Special Judge, or to make an order under
section 491 of the Criminal Procedure Code.
.It appears that pursuant to the provisions contained
in sections 9, IO and 11 of the Ordinance, the State '
Government issued a Notification No. H/35-5-C, dated
the 9/llth February, 1951, directing the constitution
of a Special Court for certain areas mentioned in a
schedule attached to the Notification and empower-
ing such court to try the following offences, namely,
offences under sections 183, 189, 190, 212, 216, 224,
302, 304, 307, 323-335, 341-344, 379-382, 384-389 and
392-402 of the Indian Penal Code, 1860, as adapted
and applied to the State of Saurashtra, and most of
the offences under the Ordinance of 1948. ·•
 S.C.R.: SUPREME COURT REPORTS 447

In•• the course of the hearing, an affidavit was filed 1952

by, then •Assistant Secretary in the Home Department Kathi Raning
of the Saurashtra Government, stat'ing that since the Rawat
integration of different States in Kathiawar in the v.
beginning of 1948 there had been a ·series of crimes The State of
against public peace and that had led to the promul- Saurashtra.
gation of Ordinance No. IX of 1948, which provided Fazl Ali/.
among other things for detention of persons acting in
a manner prejudiciial to public safety and maintenance
of public order in the State. Notwithstanding this
Ordinance, the cnmes went on increasing and there
occurred numer9us cases of dacoity, murder, nose-
cutting, ear-cutting, etc. for some of which certain
notorious gangs were responsible, and hence O!'dinance
No. LXVI of 1949 was promulgated to amend the
earlier Ordinance and to constitute Special Courts for
the speedy trial of cases arisilng1 out of the activities
of the dacoits and other criminals guilty of violent
crimes.
As has been already indicated, the main contention
advanced before us on behalf of the appellant is that
the Ordinance of 1949 voilates the provisions of
article 14 of the Constitution, by laying down a pro-
cedure which is defferent from and less advantageous

-
to the accused than the ordinary procedure laid down
in the Criminal Procedure Code, and thereby discri-
minating between persons who are to be tried under
the special pr<><;edure and those tried under the normal
procedure. In support of this argument, reliance is
placed on the decision of this court in The State of West
Bengal v. Anwar Ali Sarkar and Gajen Mali (Cases
Nos. 297 and 298 of 1951) (1), in which certain provi-
• sions of the West Bengal Special Courts Act, 1949,
have been held to be unconstitutional on grounds
similar to those urged on behalf of the appellant in the
present case. A comparison of the provisions of the
Ordinance in question with those of the West Bengal
Act will show that several of the objectionable features
in the latter enactment do not appear in the Ordinance,
..._t (1) f1952l S.C.R. 284.
58
 '148 SUPREME COURT REPORTS [1952}
1952 but on the whole, I am inclined to think that that
Kathi Raning
circumstance by itself will not afford justification for
Rawat upholding the Ordinance. There is however one very
v. important difference between the West Bengal Act and
The State of the present Ordinance which, in my opinion, does
S11Urashtra. afford such justification, and I shall try to refer to it
as briefly as possible.
I th'ink that a distinction should be drawn between
"discrimination without reason" and "discrimination
with reason". The whole doctrine of classification is
based on this distinction and on the well-known fact
that the circumstances which govern one set of persons
or objects may not necessarily be the same as those
governing another set of persons or objects so that the
question of unequal treatment does not really arise as
-
between persons governed by different conditions
and different 5ets of circumstances. The main
objection to the West Bengal Act was that it
permitted discrimination "without reason" or with-
out any rational basis. Having laid down a procedure
which was materially different from and less advanta-
geous to the accused than the ordinary procedure, that
Act gave uncontrolled and unguided authority to the
State Government to put that procedure into operation
in the trial of any case or class of cases or any offence

-
or class of offences. There was no principle to be
found in that Act to control the application of the dis-
criminatory provisions or to correlate those provisions
to some fungible and rational objective, in such a way
as to enable anyone reading the Act to say:--,-If that
is the objective the provisions as to special treatment '
of the offences seem to be quite suitable and there can
be no objection to ·dealing with a particular type of .....
offences on a special footing. The mere mention of
speedier trial as the object of the Act did not cure
the defect, because the expression "speedier trial"
standing by itself provided no rational basis of classi-
fication. It was merely a description of the result
sought to be achieved by the application of the special
procedure laid down in the Act and afforded no help ,,._
in determining what cases required speedier trial. '
 S.C.R. SUPREME COURT REPORTS 449
As regards the present Ordinance, we can discover 1952
a guiding principle within its four corners, which can-
Kathi Raning
not but have the effect of limiting the appl'ication of Rawat
the special procedure to a particular category of v.
offences only and establish such a nexus (which was The State of
missing in the West Bengal Act) between offences of a Saurashtra.
particular category and the object with wMch the Fazl Ali /.
Ordinance was promulgated, as should suffice to repel
the charge of discrimination and furnish some justi-
fication for the special treatment of those offences.
The Ordinance as I have already stated, purported to
amend another Ordinance, the object of which was to
provide for public safety, maintenance of public order
and preservation of peace and tranquillity in the State.
It was not disputed before us that the preamble of the
original Ordinance would govern the amending
Ordinance also, and the object of promulgating
the subsequent Ordinance was the same as the
object of promulgating the original OrdinanGe. Once
this is appreciated, it is easy to see that there is some-
thing in the Ordinance itself to guide the State Govern-
ment to apply die special procedure not to any
and every case but only to those cases or offences
which have a rational relation to, or connection
with, the main object and purpose of the Ordinance
and which for that reason become a class
by themselves requiring to be dealt with on a special
footing. The clear recital of a definite objective fur-
nishes a tangible and rational basitl of classification to
the Stare Government for the purpose of applying the
·~ provisions of the Ordinance and for choosing only
such offences or cases as affect public safety, main-
• tenance of public order and preservation of peace and
tranquillity. Thus, under section 11, the State
Government is expected to select only such offences ot
class of offences or class of cases for being tried by the
special court in accordance with the special procedure,
as are calculated to affect public safety, maintenance
of public order, etc., and under section 9, the use of
the special procedure must necessarily be confined to
only disturbed areas or those areas where adoption of
 450 SUPREME COURT REPORTS [1952]
1952 public safety measures is necessary. That this is how
Kathi Ran in g . the Ordinance was intended to be understood and was
Rawat in fact understood, is confirmed by the Notification
v. issued on the 9/llth February by the State Govern-
The State of ment in pursuahce of the Ordinance. That Noti-
Saurashtra. fication sets out 49 offences under the Indian Penal
Fazl Ali /. Code as adapted and applied to the State and certain
other offences punishable under the Ordinance, and
one can see at once that all these offences
directly affect the maintenance of public order and
peace and tranquillity. The Notification also specifies
certain areas in the · State over which only the
special court is to exercise jurisdiction. There can
be no dispute that if the State Legislature finds that
fawlessnes5 and crime are rampant and there is a direct
threat to peace and tranquillity in certain areas within
the State, it is competent to . deal with offences which
affect .the maintenance of public order . and preser-
vation of peace, and tranquillity in those areas as a
class by themselves and to provide that such offences
shall be tried as expeditiously as possible in accord- 1
ance with a special procedure devised for the purpose.
This, in my opinion, is in plain language the rationale
of the Ordinance, and it will be going too far to say • ...
that in no case and under no circumstances can a
legislature lay down a special procedure for the trial
of a particular class of offences, and that recourse to
a simplified and less cumbrous procedure for the trial
of those offences, even when abnormal conditions
prevail, will amount to a violation of article 14 of the
Constitution. I am satisfied that this case is dis-
tinguishable from the case relating to the West Bengal
Act, but I also feel that the legislatures should have
recourse to legislation such as the present only in very
special circumstances. The question of referring indi~
vidiual cases to the special court does not arise in this
appeal, and l do not wish t() express any opinion
on it.
Certain other points· were urged on behalf of the
appellant, namely, that the Ordinance suffers from
excessive delegation of legislative authority, and that
 S.C.R. SUPREME COURT REPORTS 451

the Rajpramukh had exceeded his powers in amending 1952

the provisions of the Criminal Procedure Code. These ' Kathi Raning
contentions were found to be devoid of all force and Rawat_
have to be rejected. v.
The State of
In the result, I would hold that the Suarashtra State Saurashtra.
:Public Safety Measures (Third Amendment) Ordinance
is not unconstitutional, and accordingly overrule the Mahajan/.

...
~
objection as to clie jurisdiction of the spedal court to
try the appellant.
MAHAJAN J.-The principal point for decision in the
appeal is whether section 11 of the Saurashtra State
Public Safety Measures (Third Amendment) Ordinance
(No. LXVI), 1949, wllich came into force on 2nd Novem-
ber, 1949, is hit by article 14 of the Constitution inas.
much as it mentions no ·basis for the differential ·treat~
ment prescribed in the Ordinance for trial of criminals
in certain cases and for certain offences. Section 11
of the Ordinance ·is in these terms:-
"A Special Judge shall try such offences or classes
of 9ffences or ·such cases or classes of cases as the Gov-
ernment of the United State of Saurashtra may, by
general or special order in writing, direct."
This section is in identical terms with section 5(1)
of the West Bengal Special Courts Act (Act X of
1950), section 5(1) of that Act provided as follows:-

- "A Special Coun shall try such offences or classes

of offences or cases or classes of cases, as the State
Government may; by general or special order in writ-
ing, direct."
The question whether section 5(1) of the West
Bengal Act (X of 1950) was hit by art'icle 14 of the
Constitution was ·answered in the affirmative by this
court in The State of West Bengal v. Anwar Al~ Sarkar
etc.(1) In that case I was of the opinion that even if the
statute on the face of it was not discriminatory, it was
so in its effect and operation inasmuch as it vested in
the executive government unregulated official discre-
tion and therefore had to be adjudged unconstitu-
tional. Section 11 of the Ordinance, like section 5(1)
(1) f19521 S.C.R. 284.
 452 SUPREME COURT REPORTS [1952]
1952 of the West Bengal Act, suggests no reasonable basis
Kathi Ran in g
or classification either in respect of offences or in res-
&wat pect of cases. It has laid down no measure for the
v. grouping either of persons or of cases or of offences by
The State of which measure thse groups could be distinguished
Saurashtra. from those outside the purview of the special Act.
Mahajan/. The State Government can choose a case of a person
similarly situate and hand it over to the special tri-
bunal and leave the case of another person in the same
circumstances to be tried by the procedure laid down
in the Criminal Procedure Code. It can direct that
the offence of simple hurt be tried by the special tri-
bunal while a more serious offence be tried in the
ordinary way. The notification m this case fully
illustrates the point. Offence of simple hurt punish-
-
able with two years' rigorous imprisonment is included
in the list of offences to be tried by the Special Judge,
while a more serious offence of the same kind puni~h­
able with heavier punishment under section 308 is ex-
cluded from the list. It is the mischief of section 11 of
the Ordinance that makes such discrimination pos-
sible. To my mind, offences falling in the group
of section 302 to 308, Indian Penal Code pos-
sess common characteristic and the appellant can ••
reasonably complain of hostile discrimination. I am

-
therefore of the opinion that section 11 of the Ordinance
is unconstitutional and the conviction of the appellant
under the Ordinance by the special judge is bad and
must be quashed. There will be a retrial of the appel-
lant under the procedure prescribed by the Code of·
Criminal Procedure. +
' The contention of the learned counsel for the State
that the provisions oi. the Ordinance are in some res-
pects distinguishable from the provisions of the West
Bengal Special Courts Act cannot be sustained. Refer-
ence was made to section 9 of the Ordinance which is
in these terms :-
"The Government of the United State of
Saurashtra may by notification in the official gazette
constitute Special Courts of criminal jurisdiction for
such area as may be specified in the notification." "l"-"
 S.C.R. SUPREME COURT REPORTS 453
This section is in the same terms as section 3 of the 1!>52
West Bengal Special Courts Act. It only empowers the
State Government to constitute Special Courts for any Kathi Raning
Rawat
area or for the whole of the State of Saurashtra in the v.
like manner in which section 3 empowered the West The State of
Bengal Government to constitute special courts for Saurashtr11.
the whole of the State or any particular area. It does
Mahajan f. '
not in any way limit or curtail the power conferred
on the State Government by the provisions of sec-
tion 11. Reference was also made to the preamble of
the original Orditiance which uses the familiar con-
ventional phraseology.
"An Ordinance to provide for public safety, main-
tenance of public order and preservation of peace and
trartquillity in the State of Saurashtra."
These words cannot limit the plain and unambigu-
ous language of section 11 of the Ordinance which auth-
orises the State Government to send any case or com-
mit persons guilty of any offence to the special judge
for trial by the procedure prescribed in the Ordinance.
MuKHERJEA J.-The appellant before us was tried,
along with two other persons, by the Special Judge,
Court of Criminal Jurisdiction, Saurashtra State, on
charges of murder, attempted murder and robbery

-
under sections 302, 307 and 392 of the Indian Penal
Code read with section 34. By his judgment dated
20th December, 1950, the Special Judge convicted the
appellant on all three charges and sentenced him
to death under section 302 and to seven years' rigorous
imprisonment both under ~ctions 307 and 392 of the
Indian Penal Code. The c6nviction and sentences
were upheld by the High Court of Saurashtra on
appeal. The appellant has now come to this court ·on
the strength of a certificate granted by the High Court
under article 132(1) and 134(1) (c) of the Constitution.
The appeal has not been heard on 'its merits as yet.
It was set down for hearing on certain preliminary
points of law raised by the learned counsel for the
appellant attacking the legality of the entire trial on
the ground that section 11 of the Saurashtra Public
 454 SUPREME COURT REPORTS [1952)
1952 Safety Measures Ordinance No. XLVI of 1949 passed
Kathi Raning by the Rajpramukh of Saurashtra as well as the Noti-
· Rawal fication issued by the State Government on 9/llth
v. February, 1951, under which the Special Court was
The State of constituted and the trial held, were void and inopera-
Saurashtra. tive. The first and the- main ground upon which the
Mukhe?jea /. constitutional validity of the section and the notifica-
tion has been assailed is that they are in conflict with
the provision of article 14 of the Constitution. The .....
other point raised is that the provision of section 11
of the Ordinance is illegal as it amounts to delegation
of essential legislative powers by the State Legislature
to the Executive.
So far as the first point is concerned, the learned
counsel for the appellant has placed great reliance upon
the majority decision of this court in two analogous
appeals from the Calcutta High Court (being cases
Nos. 2'17 and 298 of 1951( 1 ), where a similar questron
arose in regard to the validity of section 5(1) of the
West Bengal Special Courts Act, 1950. In fact, it was
because of our pronouncement in the Calcutta appeals
that is was considered desirable to have the ptesent
case heard on the preliminary points of law.
. It is not disputed that the language of section 11 of

-
the Saurashtra Ordinance, with which we are now con-
cerned, is identically the same as that of section 5 ( 1)
of the West Bengal Special Courts Act. The wording
of the section is as follows:.
''11. Jurisdiction of Special Judges-
. A Special Judge shall try such offences or classes of
offences or such cases or classes of cases as the Govern-
ment of the United State of Saurashtra may, by
general or special order in wt'iting, direct.;.'
In the West Bengal Act there is a further provision
embodied in clause (2) of section 5 which lays down
that no such direction as is contemplated by clause (1)
could be given in respect of cases pending before ordi-
nary criminal courts at the date when the· Act came
into force. No such exception has been made in the
Saurashtra Ord'inance. In · the Calcutta cases· referred
(!) Since reported as [19521 S.C.R. 284.
S.C.R. SUPREME COURT REPORTS 455
to above, the notification under section 5(1) of the West 1952
Bengal Act directed certain individual cases in which
Kathi Raning
specified persons were involved to be tried by the Rawae ·
Special Court and it was held by the High Court of v.
Calcutta that section 5(1) of the West Bengal Special The State <>f
Courts Act to the extent that it empowers the State Saurashtra;
Government to direct any case to be tried ·by Special
Courts was void as offending against the provision of Muftheriea f.
the equal protection clause in article 14 of the Con-
stitutt"on; and this view was affirmed in appeal by a
majority of this court. With regard to the remaining
part of section 5(1), which authorises the State Govern-
ment to direct, "offences, classes of offences .. or classes
of cases" for trial by Special Courts, the majority of
the Judges of the Calcutta High Court were of opinion
that it was not obnoxious to article 14 of the Constitu-
tion. In the present case the notification, that was
issued by the Saurashtra State Government on 9/llth
February, 1951, did not relate to individual cases.
The notification constituted in the first place a Special
Court in the areas specified in the schedule. It
appointed in the next place a judge to preside ovs:r
the Special Court and finally gave a list of offences with
reference to appropriate sections of the Indian Penal
Code which were to l:ie tried by the Special Judge. If
the view taken by the Chief Justice of the Cal-
cutta High Court and the majority of his colleagues is
right, such notification and that part of section 11 of
the ordinance, under which it was issued, could not
be challenged as being in conflict with article 14 of the
Constitution. This point did come . up for considera~
tion before us in· the appeals against the Calcutta
decision with reference to the corresponding part of
section 5(1) of the West Bengal Act, but although a
majority of this court concurred in dismissmg the
appeals, there was no such majority in the pronounce-
ment of any final opinion on this particular point.
In my judgment ·in the. Calcutta appeals I was
sceptical about the correctness of the view taken upon
this point by the learned Chief Justice of the Calcutta
High Court and ·the majority of liis colleagues. The
S\I .
 456 SUPREME COURT REPORTS [1952]
1952
'
consideration that weighed with me was that as the
Kathi Raning
learned Judges were definitely of opinion that the
Rilwat necessity of speedier trial, as set out in the preamble,
v. was too elusive and uncertain a criterion to form the
The State of basis of a proper classification, the authority given by
Saurashtra. section 5(1) of the Special Courts Act to the State
Muk.herjea /.
Government to direct any class of cases or offences to
be tried by the Special Court would be an unguided
authority and the propriety of the classification made
by the State Government that is said to be implied in
the direction could not be tested with reference to any
definite legislative policy or standard. Mr. Sen,
appearing for the State of Saurashtra, has argued be- ....
fore us that in this respect the Saurashtra Ordinance
stands on a different footing and he has referred in
this connection to the preamble to the orig'inal ordi-
nance·as well as the circumstances which necessitated
the present one. As the question is an important one
.....
and is not concluded by our previous decision, it merits
in my opinion, a careful consideration.
It may be stated at the outset that the Ctiminal
Procedure Code of India as such has no application to
the State of Saurashtra. After the State acceded to
the Indian Union, there was an Ordinance promulgated
by the Rajpramukh on 5th of April, 1948, which in-
troduced the provisions of the Criminal Procedure
Code of India (Act V of 1898) with certain modifica-
tions into the Saurashtra State. ·Another ordinance,
known as the ·Public Safety Measures Ordinance, was
passed on the 2nd of April, 1948, and this ordinance,
like similar other public safety measures obtaining in
other States, provided -for preventive detention, imposi-
tion of collective fines, control of essential supplies and
similar other matters. On 11th of November, 1949,
the present ordinance was passed by way of amend-
ment of the Public Safety Measures Ordinance and
inter alia it made provisions for the establishment of
special courts. Section 9 of this Ordinance empowers
the State Goverment to constitute special courts of
criminal jurisdiction for such areas as may be specified
in the notification. Section IO relates to appointment
 S.C.R. SUPREME COURT REPORTS 457
of Special Judges who are to preside over such courts 1952
and section 11 lays down that the Special Judge shall
try "such offences or classes of offences ........ or classes Kathi Ran ing
Rawat
of cases as the Government of United State of Saurashtra v.
may, by general or special order in writing, -~Iirect."
.
The State of
The procedure to be followed by the Special Judges 'is Saura1htr11.
' set out in sections 12 to 18 of the Ordinance. In sub-
Mukherjea /.
stance the Special Court is given the status of a sessions
...... court, although committal proceedings is eliminated
and so also is trial by jury or with the aid of assessors.
The Special Judge has only to make a memorandum of
the evidence and he can refuse to summon any wftness
if he is satisfied after examination of the accused that
the evidence of such witness would not be material.
'section 16(1) curtails the period of litn.itatiqn within
whicli an accused convicted by the Special Judge has to
file his appeal before the High Court and clause (3) of
the section provides that no court shall have jurisdic-
tion to transfer any case .from any Special Judge or
make any order under section 491 of the Criminal Pro-
cedure Code. The ordinance certainly lacks some of
the most objectionable features of the West Bengal
Act. Thus it has not taken away the High Court's
power of revision, nor does it expose the accused to
the chance of being convicted of a major offence
though he stood charged with a minor one. There is
also no provision in the ordinance similar to that in
the West Bengal Act which enables the court to pro-
ceed with the trial in the absence of the accused. But
although the ardinance in certain respects compares
favourably with the West Bengal Act, the procedure
which it lays down for the Special Judge to follow does
differ on material points from the normal procedure
prescribed in the Criminal Procedure Code and as
these differences abridge the rights of the accused
who are to be tried by the Special Court, and deprive
them of certain benefits to which they would otherwise
have been entitled under the general law, the ordinance
prima facie makes discrimination and the question has
got to be answered whether such discrimination brings
it in conflict with article 14 of the Constitution.
 458 SUPREME COURT REPORTS (1952]
195.2
The nature and scope of the guarantee that is im-
Kathi Raning plied in the equal protection clause of our Constitution
Rawat . have been explained and discussed in more than one
v. decision of this court and do not require repetition. It
Tk State of is well settled that a legislature for the purpose of
Saurtuhtra.
dealing with the complex problems that arise out of
Muk._herjea J, an infinite variety of human relations, cannot but pro-
ceed upon some sort of selection or classification of
persons upon whom . the legislation is 1:9 operate. The
consequence of such classification would undoubtedly
be to differentiate the persons belonging to that class
from others, but that by itself would not make the
legislation obnoxious to the equal protection clause.
Equality prescribed by the Constitution would not be
violated if the statute operates equally on all persons
who are included in the group, and the classification is
not arbitrary or capricious, but bears a reasonable
relation to the objective which the legislation has in •
view. The legislature is given the utmost latitude in
making the classification and it is only when there is a
palpable abuse of power and the differences made have
no rational relation to the objectives of the legislation,
that necessity of judicial interference arises.

Section 11 of the Saurashtra Ordinance so far as it

is material for our present purpose lays down that a
Special Court shall try such offences or classes of offen-
ces... or classes of cases as the State Government may ..
direct". This part of the section undoubtedly con-
templates a classification to be made of offences and
cases but no classification appears on the terms of the

.'
statute itself which merely gives an authority to the
State Government to deterrnine what classes of cases
or offences are to be tried by the special tribunal. The
question arises at the outset as to whether such statute
is not on the face of it discriminatory as it commits to
the discretion of an administrative body or officials the:
duty of_ making selection or classification for purposes
of the legislation; and there is a still further question,
namely, by what . tests, if any, is the propriety of the
administrative action to be adjudged and what
would be the remedy of the aggrieved person if the
 S.C.R. SUPREME COURT REPORTS 459
classification made by the administrative body is 1952
arbitrary or capricious?
Kathi Raning
It is a doctrine of the American courts which seems RaU.at
to me to be well-founded on principle that the equal v.
protection clause can be invoked not merely where The State of
discrimination appears on the express terms of the • Saurashtra.
statute itself, but also when it is the result of improper M u'l(,l1erjea T.
or prejudiced execution of the law(). But a statute
will not necessarily be condemned as discriminatory,
because it does not make the classification itself but,
as an effective way of carrying out its policy, vests the

- authority to do it in certain officers or administrative

bodies. Illustrations of one class of such cases are to
be found in various regulations in the U. S. A. which
are passed by States in exercise of police powers for
the purposes of protecting public health or welfare or
to regulate trades, bu~iness and occupations which
may become unsafe or dangerous when unrest.rained.
Thus there are regulations where discretion is lodged
by law irr public officers or boards to grant or with-
hold licence to keep taverns or sell spirituous liquors(2), ·
or other commodities like milk( 3 ) or cigarettes{').
Similarly, there are regulations relating to appoint-
ment of river pilots(5) and other trained men
necessary for particularly difficult jobs and in
such cases, ordinarily, conditions are laid down by the
statute, on compliance with which a candidate is con-
sidered qualified. But even then the appointI!lcnt
board has got a discretion to exercise and the fact of
the candidate for a particular post is submitted to the
judgment of the officer or the board as the case may be.
It is true that these cases are of a somewhat different
• nature than the one we arc dealing with; but it seems
to me that the principle underlying all these cases is
the same. The whole problem is one of choosing the
method by which the legislative policy is to be effec-
tuated. As has been observed by Frankfurter J. in
(I) Vitle Weaver on Constitutional Law, p. 404.
(2-) Crowley v. Christensen, 137 US. 86.
(3) People of the State of New York v. Toh. E. V.rn De C•rr,
199 U.S. 552.
( 4) G11ndlint v. Cliic1110, 177 U.S. 183.
(5) Kotd v. BOlll'tl of Ri"" Pon Pilot Commissioners, 330 U.S.
552.
 SUPREME COURT REPORTS [1952]
1952 Tinger v. Texas('), "laws are not abstract propos1t1ons
Kathi &ming ·: • b~t are expressions of policy arising out of specific
Rawfll difficulties addressed to the attainment of specific ends
v. by the use of specific remedies." In my opinion, if
The State of the legislative policy is clear and definite and as an
Saurashtra. ., e_ffec~'ve method of carrying out that policy a discre-
Muk,,herjea /. tion 1s vested by the statute upon a body of adminis-
trators or officers to make selective application of the
law to certain classes or groups of persons, the statute
itself ·cannot be condemned as a piece of discrimina-
tory legislation. After all "the law does all that Is
needed when it does all that it can, indicates a policy
.•• and seeks to bring within the lines all similarly
situated so far as its means allow(2)''. In such cases,
the power given to the executive body would inlport a
duty on it to classify the subject-matter of legislation
in accordance with the objective indicated in the stat-
ute. The discretion that is conferred on official
agencies in such circumstances is not an unguided
discretion; it has to be exercised in conformity with
the policy to effectuate which the direction is given
and it is in relation to that objective that the propriety
of the classification would have to be tested. If the ad- • •
ministrative body proceeds to classify persons or things
on a basis which has no rational relation to the objective
of the legislature, its action can certainly be annulled
as offending against the equal protection clause. On
the other hand, if the statute itself does not disclose a
definite policy or objective and it corifer& authority on
another to make ·selection at its pleasure, the statute
would be held on the face of it to be discriminatory •
irrespective of the way in which it is applied. This,
it seems to me, is the true principle underlying the
decision of the Supreme Court of America in Yick W o
•
v. Hopkins('). The object of the ordinance of the
City and County of San Francisco, which came up for
consideration in that case, was, as found by the court,
not to regulate laundry business in that locality in the
interests of the general public ('). The business was
(1) 310 U.S. 141at147. (2) Vide Buck v. Bell, 214 U.S. 200, 208.
(3l 118 u. s. 356. 13
(4 Vide the observations of Field J. in Crowley v. Christensen, 7
u. s.86, 94.
 S.C.R. SUPREME COURT REPORTS 461

harmless m itself and useful to the community. No 1952

policy was indicated or object declared by the legis-
Kathi Raning
lature, but an uncontrolled discretion was given to the Rawat
Board of Supervisors who could refuse license at their v.
pleasure to anybody carrying on laundry business in The State of
wooden buildings. The classification contemplated Saurashtra.
by the statute was an arbitrary classification depending
Muk.herjea f.
on the caprice of the Board, and consequently it was
condemned as discriminatory on the face of it; its
application against the Chinese was a confirmation of
the discriminatory character and the really hostile
intention of the legislation. I would be inclined to
think that the West Bengal case, which we have decid-
ed already, comes with'in the purview of this principle,
as the desirability of "speedier trial", which is hinted
at in the preamble to the West Bengal Act, is too
vague, elusive and uncertain a thing to amount to an
enunciation of a definite policy or objective on the
basis of which any proper classification could be made.
The matter has been left to the. unfettered discretion
of the State Government which can classify offences or
cases in any way they like without regard to any
objective and as such the statute is open to the chal-
lenge of making arbitrary discrimination. The point

-
that requires consideration 'is, whether the Saurashtra
Ordinance presents any distinguishing features or
occupies the same position as the West Bengal Act?
As has been stated already, section 11 of the Saura-
shtra Ordinance is worded in exactly the same manner as
section 5(1) of the West Bengal Special Courts Act; and
that part of it, with which we are here concerned
authorises the State Government to direct any classes of
offences or cases to be tried by the special tribunal.
II
The State Government, therefore, has got to make a clas-
.. sification of cases or offences before it issues its direc-
tions to the Special Court. The question is, on what basis
is the classification to be made? If it depends entirely
upon the pleasure of the State Government to make
any classification it likes, without any guiding princi-
ple at all, it cannot certainly be a proper classification,
which requires that a reasonable relation must exist
1....:.5 S, C, India /71
 462 SUPREME COURT REPORTS [1952]
1952 between the classification and the objective· that the
Kathi Rani111 legislation has in view. On the other hand if the
Rawat legislature indicates a definite objective and 'the dis-
v. cretion has been vested in the State Government as a
The ·state of means of ach'ieving that object, the law itself, as I
Mukherjea /. have said above, cannot be held to be discriminatory,
Mukherjea /. though the action of the State Government may be
condemned if it offends against the equal protection
clause, by making an arbitrary selection. Now, the
earlier ordinance, to which the present one is a subse-
quent addition by way of amendment, was passed by
the Rajpramukh of Saurashtra on 2nd April, 1948.
It is described as an ordinance to provide for the
security of the State, maintenance of public order and
maintenance of supplies and services essential to the
community in the State of Saurashtra. The pream-
ble to the ordinance sets out the objective of the ordi-
nance in identical terms. It is to be noted that the
integration of several States in Kathiawar which now
form the State of Saurashtra, was completed some
time in February, 1948. It appears from the affidavit
of an officer of the Horne Government of the Saurash-
tra State that soon after the integration took place, an
alarming state of lawlessness prevailed in some of the
districts within the State. There were gangs of dacoits

-
operating at different places and their number began
to increase gradually. As ordinary law was deemed
insufficient to cope with the nefarious activities of
those criminal gangs, the Saurashtra Public Safety
Measures Ordinance was promulgated by the Rajpra-
mukh on 2nd April, 1948. The Ordinance, as stated
already, provided principally for preventive detention
and imposition of collective fines; and it was hoped
that armed with these extraordinary powers the State
Government would be able to bring the situation under
control. These hopes, however, were belied, and the
affidavit gives a long list of offences in which murder
and nose-cutting figure conspicuously in addition to
looting and dacoity, which were committed by the
<lacoits during the years 1948 and 1949. In view of
this ugly situation in . the State, the new ordinance ·was
. " (.• -
 S.C.R. SUPREME COURT REPORTS 463

passed on 11th of November, 1949, and this ordinance 1952

provides inter alia for the establishment of Special Kathi Raning
Courts which are to try offenders under a special proce- Rawat
dure. Acting under section 11 of the Ordinance, the v.
Government issued a notification on 9/llth February, The State of
1950, which constituted a Special Court for areas specifi- Saurashtra.
ed in the schedule, and here again the affidavit shows Mukherjea J.
that all these areas are included in the districts of Go-
hilwad, Madhya Saurashtra and Sorath, where the tribe
of marauders principally flourished. The object of pas-
sing· this new ordinance is identically the same for which
the earlier ordinance was passed, and the preamble to

- the latter, taken ·along with the surroundmg circum-

stances, discloses a definite legislative policy which
has been sought to be effectuated by the different pro-
visions contained in the enactment. If Special Courts
were considered necessary to cope with an abnormal
.. > situation, it cannot be said that the vesting of authority
in the State Government to select offences for trial by
such courts is in any way unreasonable..
In the light of the principles stated already, I am
unable to hold that section 11 of the Ordinance in so
far as it authorises the State Government to direct
classes of offences or cases to be tried by the Special
Court offends against the provision of the equal pro-
tection clause m our Constitution. If the notification
that has been issued by the State Government proceeds
on any arbitrary or unreasonable basis, obviously that
could be challenged as unconstitutional. It is neces-
sary, therefore, to examine the terms of the notifica-
tion and the list of offences it has prescribed.
The notification, as said above constitutes a Special
Court for the areas mentioned in the Schedule and
appoints Mr. P. P. Anand as a Special Judge to preside
over the Special Court. The offences triable by the
Special Court are then set out with reference to the
specific sections of the Indian Penal Code. Mr. Chibber
attacks the classification of offences made in this Ii.st
primarily on the ground that while it mentions offences
of a particular character, it excludes at the same time
other . offences of a cognate character m reference to
 464 SUPREME COURT REPORTS [1952]
1952 which no difference in treatment is justifiable. It is
Kathi Ran in g
pointed out that while section 183 of the Indian Penal
Rawat Code is mentioned in the list, sections 184, 186 and
v. 188 which deal with similar offences are excluded.
The State of Similarly the list does not mention section 308, Indian
Saurashtra. Penal Code, though it mentions section 307. The
Muk_herjea /. learned counsel relies in this connection upon the deci-
s\on of the Supreme Court of America in Skinner v.
Oklahoma('). In that case the question for consider-
ation related to the constitutionality of a certain
statute of Oklahoma which provided for sterilization
of certain habitual criminals who were convicted two
or more times in any State of felony involving moral
turpitude. The statute applied to persons guilty of
larceny, which was a felony, but not to embezzlement,
and it was held that the legislation violated the equal
-
protection clause. It is undoubtedly a sound and
reasonable proposition that when the nature of two •
offences is intrinsically the same and they are punish-
able in the same manner, a person accused of one
should not be treated differently from a person accused
of the other, because it is an essential principle unde'r-
lying the equal protection clause that all persons simi-
larly circumstanced shall be treated alike both in
privileges conferred and liabilities imposed. At tl1e
same time it is to be noted as Douglas J. observed in
the very case that in determining the reach and scope
of particular legislation it is not necessary for the
legilsJature to provide abstract symmetry. "It may •
mark and set apart the classes and types of problems
according to the needs and as dictated or suggested ,
by experience." A too rigid iinsistance therefore on a
.thing like scientific classification is neither practicable
nor desirable. It is true that the notification men-
tions section 183 of the Indian Penal Code, though
it omits section 184; but I am unable to hold that the
two are identically of the same nature. Section 183
deals wlth resistance to the taking of property by the
lawful authority of public servant; while section 184
relates to obstructing sale of property offered for sale
{1) 316 U.S. 535.
 S.C.R. SUPREME COURT REPORTS 465
by authority of public servant. Section 186 on the 1952
other hand does not relate to the taking of property
Kathi Raning
at all, but is concerned with obstructing a public Rawat
servant in the discharge of his public duties. Then v.
again I am not sure that it was incumbent upon The State of
the State Government to include section 308, Saurashtra.
Indiian Penal Code, in the list simply because
Muk_herjea /.
they included section 307. It is true that culpable
homicide as well as attempt to murder are specified

-
in the list; but an attempt to commit culpable homi-
cide i,s certainly a less heinous offence and the State
Government might think it proper, having regard to
all the facts known to them, that an offence of attempt
to commit culpable homicide does not require a special
treatment.
>
>- Be that as it may, I do not think that a meticu-
lous examination of the various offences specified in
the list with regard to their nature and punishment is
necessary for purposes of this case. The appellant
before us was accused of murder punishable under
section 302 of the Indian Penal Code. There is no
other offence, I believe, described in the Indian Penal
_;. --lo-

Code, which can be placed on an identical footing as

murder. Even culpable homicide not amounting to
murder is something less heinous than murder, although
it finds a place in the list. In my opinion, the appel-
lant can have no right to complain if he has not been
agrieved in any way by any unjust or arbitrary
classification. As he is accused of murder and dacoity
and no offences of a similar nature are excluded from
the list, I do not think that it is open to h'im to com-
plain of any violation of equal protection clause in the
notification. There are quite a number of offences
specified in the notification and they are capable of
being grouped under various heads. Simply because
certain offences whiieh could have been mentioned
along with similiar others in a particular group
have been omitted therefrom, it cannot be said that
the whole list is bad. The question of inequality on
the ground of such omission can be raised only by the
person who is directed to be tried under the special
 466 SUPREME COURT REPORTS [1952]
1952 procedure for a certain offence, whereas for commis~
Kathi Raning
sion of a similar offence not mentioned in the list
Rat.vat another person has still the advantages of the ordinary
. v. procedure open to him. In my opinion, therefore, the
The State of first point raised on . behalf of the appellant cannot
Saurashtra. succeed.
The other point urged by the learned counsel for the ,,
appellant which relates to the question of delegation
of legislative authority by the Rajpramukh to the
State Government admits, I · think, of a short answer.
It is conceded by the learned counsel that the facts of
this case are identical with those of King Emperor v.
Benoarilal Sarma(') which was decided by the Privy
-
Council. In fact, the language of section 5 of the
Special Criminal Courts Ordinance (No. II of 1942)
whkh came up for consideration in that case is almost
the same as that of section 11 of the Saurashtra
Ordinance. It was held by the Privy Council that it
was not a case of delegated legislation at all, but
merely an example of the not uncommon legislative
arrangement by which the local application of the
provision of a statute is determined by the judgment '·
of a local administrative body as to its necessity. In
other words, it was a case of conditional legislation
coming within the rule of Queen v. Burah (2). The
pronouncement of the Judicial Committee in Beno-
arilal's case(') has been accepted and acted upon by
this court in more than one case and it is too late now
to question its correctness. My conclusion, ltherefore,
is that both the preliminary points must be disallow-
ed and the appeal should be heard on its merits.
DAS J.-The appellant before us was tried by a Special
Court constituted under the Saurashtra Public Safety
Measures (Third Amendment) Ordinance No. LXVI of
1949 for offences alleged to have been committed by
him under ·sections 302, 307 and 392 of the Indian
Penal Code. On December 20, 1950 he was found
guilty of the offences charged against . him and was
convicted and sentenced to death under section 302,
(I) 72 I.A. 57. (2) 3 App. Cas. 889.
...,
 S.C.R.: SUPREME COURT REPORTS 467
Indian, Penal Code, and to seven years' rigorous im- 1952
prisonment under each of the charges under sec-
Kathi Raning
tions 307 and 392, Indian Penal Code, the sentences of Rawat
imprisonment running concurrently. He appealed to . v. '
the High Court of Saurashtra but the High Court, by The State of
its judgment pronounced on February 28, 1951, re- Saurashtra. ·
jected h'is appeal and confirmed his conviction and the Das/.
sentences passed by the Special Court. By its order
made on March 21, 1951, however, the High Court
granted him a certificate for appeal to this Court

-
both under article 132 and article 134 (1) (c) of the
Constitution. This appeal has accordingly been filed
in this Court.
A preliminary point has been raised by learned
counsel for the appellant, namely, that the Special
Court had no jurisdiction to try this case and the
whole trial and conviction .have been illegal and void
ab initio and should be quashed in limine. It is
necessary, for the disposal of the preliminary objection,
to refer to the provisions of the Ordinance and the cfr-
cumstances in which the Special Court came to be
constituted.
} +·
In the beginning of 1948 the different States in

-
Kathiawar were integrated into what is now the State
of Saurashtra. About that time different dacoits in-
dulged in lawless activ'ities in Kathiawar and in parti-
cular in the area now known as the districts of Gohil-
wad and Madhya Saurashtra and on the outskirts of
Sorath that was formerly a district in Junagadh State.
Their activities gathered such strength and virulence
that the security of the State and the maintenance of
) public peace became seriously endangered. In order
to check their nefarious activities the Rajpramukh
of the State of Saurashtra on April 2, 1948, promulga-
ted Ordinance No. IX of 1948. The preamble of the
Ordinance recited that it was "expedient to provide
for public safety, maintenance of public order and
preservation of peace and tranquillity in the State of
Saurashtra." That Ordinance gave power to the
State Government to make orders, amongst other
things, for detaining or restricting the movements or
 468 SUPREME COURT REPORTS [1952]
1952 actions of persons and impose collective fines. The
K•thi Raning Rajpramukh on April 5, 1948, promulgated another
Rawat Ordinance No. XII of 1948 which extended to the
v. State of Saurashtra the provisio1111 of the Code of
The State of Criminal Procedure (Act V of 1898) subject to certain
Saur•shtra. adaptations and modifications mentioned in the
Das/. Schedule thereto. It appears from the affidavit of
Ramnikrai Bhagwandas Vesavada, Assistant Secre-
tray in the Home Depaitment, Government of Sau-
rashtra, that the Ordinance was not sufliCient to cope

-
with the activities of the gangs of dacoits and that
cases of looting, dacoity, robbery, nose-cutting and
murder continued as before and indeed increased in
number, frequency and vehemence and it became im-
possible to deal with the offences at different places in
separate Courts of law expeditiously. In view of the
serious situatibn prevailing in those districts the
Stiate of Saurashtra considered ,it necessary ' to con-
stitute Special Courts and to provide for a special
procedure of trials so as to expedite the disposal of
cases in which offences. of certain specified kinds had
been committed. The Rajpramukh of Saurashtra
accordingly, on November 2, 1949, promulgated
Ordinance No. LXVI of 1949 called "The Saurashtra
State Public Safety Measures (Third Amendment)
Ordinance, 1949", whereby it amended the Saurashtra
State Public Safety Measures Ordinance (No. IX of
1948). By section 4 of the Ordinance No. LXVI of
1949 several section were added to Ordinance No. IX
-
-0f 1948. Three of the sections thus added, which are
material for our present purposes, were sections 9, 10
and 11 which run as follows:-
"9. Special Courts.-The Government of the
United State of the Saurashtra may by notification
In the Official Gazette constitute Special Courts of
Criminal Jurisdiction for such area as may be specified
in the notification.
10. Special Judges.-The Government of the
United State of Saurashtra may appoimt a Special
Judge to preside over a Special Court constituted '".!
under section 9 for any area any person who has been
 :S.C.R. SUPREME COURT REPORTS 469
a Sessions Judge for a period of not less than 2 years 1952
under the Code of Criminal Procedure, 1898, as
applied to the United State of Saurashtra. Kathi Raning
Rawat
11. Jurisdiction of Special Judges.- A Special v.
Judge shall try such offences or classes of offences or The State of
such cases or classes of cases as the Government of the Saurashtra.
United State of Saurashtra may, by general or special Das].
order in writing, direct."
Pursuant to the provisions of the Ordinance as
amended the State of Saurashtra issued a notification,
the material part of which is as follows:~
"No. H/35-5-C-In exercise of the powers con-
ferred bv sections 9, 10 and 11 of the Saurashtra State
Public Safety Measures Ordinance, 1948, (Ordinance
-No. IX of 1948), (hereinafter referred to as the said
•
-· Ordinance), Government is pleased to direct-
(i) That a Special Court of a Criminal Jurisdiction,
(hereinafter referred to as the said Court) shall be con-
stituted for the areas, mentioned in the schedule hereto
annexed, and that the headquarters of the said Court
·shall be at Rajkot,
(ii) that Mr. P. P. Anand shall be .appointed as a
Special Judge to preside over the said Court and
(iii) that the Special Judge hereby appointed shall
. try the following offences, viz.-
(a) offences under sections 183, 189, 190, 212, 216,
224, 302, 304, 307, 323 to 335, 341 to 344, 379 to 382,
384 to 389 and 392 to 402 of the Indian Penal Code
1860 (XLV of 1860), as adapted and applied to the
United State of Saurashtra, and
(b) all offences under the said Ordinance, except
an offence punishable under sub-section (6) of section 2
·of the said Ordinance, in. so far as it relates to the con-
travention of an order made under clause (a) of sub-
section ( 1) of the said section."
The appellant having been charged with offences in-
cluded in the Notification he was tried by the Special
- tt#· Court with the result I have mentioned. The pre-
- liminary objection raised on his behalf is that section
 470 SUPREME COURT REPORTS [1952]
1952 11 of the Ordinance is invalid in that (a) it offends
Kathi N.aning
against article 14 of our Constitution, and (b) it autho-
Rawat rises illegal delegation of legislative power to the State
v. Government.
The State of
Saurashtra. In support of the first ground on which the prelimi-
nary objection is founded reliance is placed by
Das/. learned counsel for the appellant on the judgment
of this Court in Case No. 2'Yl of 1951 (The State of
West Bengal v. Anwar Ali Sarkar). That case was con-

-
cerned with the validity of the trial of the respondent
therein by a Special Court constituted under the pro-
visions of the West Bengal Special Courts Act, 1950
(West Bengal Act X of 1950). The preamble to that
Act recited that it was "expedient to provide for the
speedier trial of certain offences". Sections 3, 4 and
5 (1) of the West · Bengal Special Courts Act, 1950,
reproduced substantially, if not verbatim, the pro- •.
visions of sections 9, IO and 11 of the Saurashtra
Ordinance of 1948 as subsequently amended. The
notification issued by the State of West Bengal under
that Act was, however, different from the notification
issued by the State of Saurashtra in that the West
Bengal notification directed certain specific "cases" to
be tried by the Special Court constituted under the
West Bengal Special Courts Act. That notification
had obviously been issued under that part of section 5
( 1) of the West Bengal Special Courts Act which
authorised the State Government to direct particular
"cases" to be tried by the Special Court. A majority
of this court held that at any rate section 5 ( 1) of the
West Bengal Special Courts Act in so far as it autho-
rised the State to direct "cases" to be ·tried by the
Special Court and the notification issued thereunder
offended against the provisions of article 14 of the
Constitution and as such were void under article 13.
The Saurashtra notification, however, has been issued
quite obviously under that part of section 11 which
authorises the State Government to direct "offences",
"classes of offences" or "classes of cases" to be tried
by the Special Court and the question before us on the
present appeal is whether that part of section 11 nnder
 S.C.R. SUPREME COURT REPORTS 471

which the . present notification has been issued offends 1952

against the equal protection clause of our Constitution.
Kathi Raning
It is contended that the opm1on expressed by the Rawat
majority of this Court in the West Bengal case v.
on the corresponding part of section 5 (1) of the The State of
West Bengal Special Courts Act was not neces- Saurashtra.
sary for the purposes of that appeal and requires
DM /.
reconsideration.
After referring to our previous decisions m
Chiranjit Dal Choudhury v. The Union of India

- and Others(1) and The State of Bombay v. F. N. Bal-

sara(2), I summarised the meaning, scope and effect
of article 14 of our Constitution, as. I understand
it, in my judgment in the West Bengal case
which I need not repeat but to which I fully .
• adhere. It 1s now well established that while article
14 forbids class legislation it does not forbid reason-
able classification fur the purposes of legislation. In
order, however, to pass the test of permissible classifi-
cation, two condi'tions must be fulfilled, namely, (i)
that the classification must be founded on an intel-
'ligible differentia whlch distinguishes persons or
things that are grouped together from others left
out of the group, and (ii) that ·that differentia
must have a rational relation to the object sought to

- be achieved by the Act. What is necessary is that

there must be a nexus between the basis of classifica-
tion and the object of the Act.
It will be noticed that section 11 of the Saurashtra
Ordinance like section 5(1) of the West Bengal
Special Courts Act, refers to four distinct categories,
namely, "offences", "classes of offences", "cases" and
"classes of cases" and empowers the State Govern-
ment to direct any one or more of these categories to
be tried by the Special Court constituted under the
Act. The expressions "offences", "classes of offences"
and "classes of cases" clearly indicate and obviously
imply a process of classification of offences or cases.
( 1) [1950] S. C. R. 869.
(2) A. I. R. (1951) S. C. 318 at p. 326. [1951] S. C.R. 682.
 472 SUPREME COURT REPORTS [1952]
1952 Prima facie those word~ do not contemplate any part!-
cular offender or any particular accused in any parti-
Kathi Raning cular case. The emphasis is on '"offences", "classes of
Rawat
v. offences" or "cla.%es of cases." The classification of
The State of "offences" by itself is not calculated to touch any in-
Saurashtra. dividual as such, although it may, after the classifica-
tion is made, affect all individuals who may commit
Das/. the particular offence. In short, the classification im-
plied in this part of the sub-section has no reference to,
and is not directed towards, the singling out of any
particular person as an object of hostile State action
but is concerned only with the grouping of "offences",
"classes of offences': and "classes of cases" for the
purposes of the particular legislation as recited in its
preamble.
-
An argument was raised, as in the West Bengal
case, that even this part of the section gave an un-
. controlled and unguided power of classification which
might well be exercised by the State Government
capriciously or "with an evil eye and an unequal
hand" so as to deliberately bring about invidious
discrimination between man and man althougli '.
both of them. were situated in exactly the same
or similar circumstances. I do not accept this argu-
ment as sound, for, the reasons I adopted in my judg-
ment in the West Bengal case in repelling this argument
apply with equal, if not with greater, force to the
argument directed against the validity of the Saurashtra
-
Ordinance. It is obvious that this part of section 11
of the Ordinance which, like the corresponding part 0£
section 5 ( 1) of the West Bengal Special Courts Act,
confers a power on the State Government to make a
classification of "offences", "classes of offences" or
"classes of cases", makes it the duty of the State
government to make a proper classification, that is to
say, a classification which must fulfil both conditions,
namely that it must be based on some intelligible
differentia distinguishing the offences grouped
together from other offences and that that dif-
ferentia must have a reasonable relation to the
object of the Act as recited in the preamble. A
 S.C.R. SUPREME COURT REPORTS 473
~ • . ,_ classification on a basis which does not distinguish one 1952
offence from another offence or which has no relation
Kathi Raning'
to the object of the Act will be wholly arbitrary and Rawat
may well be hit by the principles laid down by the v.
Supreme Court of the United States in Jack Skinner The State of
v. Oklahoma(1). On the other hand, as I observed in Saurashtra.
the West Bell.'Sal case, it is easy to visualise a situation
Das/.
1 when certain offences, by reason of the frequency of
._. their perpetration or other attending circumstances,
may legitimately call for a special treatment in order
to check the commission of such offences. Are we not
familiar with gruesome crimes of murder, arson, loot
and rape committed on a large scale during communal
riots in particular localities and are they not really
different from a case of a stray murder, arson, loot or
rape in another district which may not be affected by
• any communal upheaval ? Does not the existence of
:r the gangs of dacoits and the concomitant crimes com-
mitted on a large scale as mentioned in the affidavit
filed on behalf of the State call for prompt and speedier
trial for the maintenance of public order and the pre-
servation of peace and tranquillity in the State and
indeed of the very safety of the community? Do not
1 - those special circumstances add a peculiar quality to
the offences or classes of offences specified in the notifi-
cation so as to distinguish them from stray cases of
similar crimes and is it not reasonable and even

- necessary to the State with power to classify them

into a separate group and deal with them promptly?
I have no doubt in my mind that the surrounding
circumstances and the special features mentioned in
the affidavit referred to above furnish a very cogent
't

and reasonable basis of classification, for they do

clearly distinguish these offences from similar or even
same ~pecies of offences committed eLsewhere and
under ordinary circumstances. This differentia quite
clearly has a reasonable relation to the object sought
' to be achieved by the Act, namely, the maintenance
of public order, the preservation of public safety, the
peace and tranquillity of the State. Such a classification

(1) 216 U.S. 535; L, Ed. 1655.

 SUPREME COURT REPORTS [1952)
1952 will not be repugnant to the equal protection ._
clause of our Constitution, for there will be no discri- .,. ·-
Kathi Raning
Rawat
mination, for whoever may commit the specified
v. offence in the specified area in the specified circum-
The State of stances will be treated alike apd sent up before a
Saurashtra. Special Court for trial under the specia1 procedure.
Persons thus· sent up for trial by a Special Court ac-
Das].
cording to the special procedure cannot point their f
lingers to the other persons who may be charged be- ..- ~
fore an ordinary Court with similar offences alleged
to have been committed by them in a different place
and in different circumstances and complain of un-
.equal treatment, for those other persons are of a dif-
ferent category and are not their equals. In my
judgment, this part of the section,· properly construed
and understood, does not confer an uncontrolled and
unguided power on the State Government. On the "
contrary, this power, is controlled by the necessity for •
making a proper classification which is to be guided
by the preamble in the sense that the classification
must have a rational relation to the object of the Act
as recited in the preamble. It is, therefore, not an
arbitrary power. The Legislature has left it to the
State Government to classify offences or classes of
offences or classes of cases for the purpose of the
Ordinance, for the State Government is in a better

-
position to judge the needs and exigencies of the
State and the Court will not lightly interfere with the
decision of the State Government. If at any time,
however, the State Government classifies offences
arbitrarily and not on any reasonable basis having
a relation to the object of the Act, its action will ~
be either an abuse of its power if it is purposeful, or in
excess of its powers even if it ~ done in good faith, and
in either case the resulting discrimination will encounter
the challenge of the Constitution and the Court will
strike down, not the law which is good, but the abuse
or misuse or the unconstitutional admillistration of the '
law creating or resulting in unconstitutional discrimi-
nation. In this case, however, the facts stated in the
affidavit filed on behalf of the. Stat~ n_iake i~ ~bundanrly ~
 S.C.R. SUPREME COURT REPORTS 475

clear that the situation in certain parts of the State 1952

was sufficient to add a particularly sinister quality to
certain specified offences committed within those parts Kathi Raning
Rawat
and the State Government legitimately grouped them v.
together in the notification. The criticism that the The State of
State Government included certain offences but exclud- Saurashtra.
ed certain cognate offences has been dealt with by
my learned brother Mukherjea and I have nothing Das].
more to add thereto.
In my opinion, for reasons given in my judgment in
the West Bengal case and referred to above; section 11
of the Saurashtra Ordinance in so far as it authorises
the State Government to direct offences or classes of
offences or classes of cases to be tried by the Special
Court does not offend against the equal protection
clause of our Constitution and the notification which
.it has been issued under that part of the section cannot
7
be held to be invalid or ultra vires.
On the question of delegation of legislative power
the matter appears to be concluded by the decision of
the Privy Council in Benoarilal's ca:se(1) and the sec-
tion may well be regarded as an instance of condi-
I • tional legislation. Further, I would be prepared to
say, for reasons stated in my judgment in the Presid-
ent's Reference(2) that there has been no illegal delega-
tion of legislative power.

- For reasons stated above, I agree that the perlimi-

nary point should be rejected and the appeal should
be heard on its merits.
CHANDRASEKHARA AIYER J.-Mr. Sen tried his best
to distinguish this case from our decision on the West
; Bengal Special Courts Act, 1950, The SMte of West
Bengal v. Anwari Ali Sarkar and Gajan Mali('). But
in my view he has not succeeded in his attempt.
Sections 9 and 11 of the Ordinance in qu~taion do
, not lay down any classification in themselves. The
preamble to the earlier Ordinance of 1948, which is
still intact as the later one is only an amending
(1) L.R. 72 I.A. 57. (3) Cases Nos. 297 & 298 of 1951. Since
(2) [1951] S.C.R. 747. reported at [1952] S.C.R. 284.
 476 SUPREME COURT REPORTS [1952]
•
1952 measure, merely refers to the need to provide for public
safety, maintenance of public order, and the preserva-
Kathi Raning
Rawat tion of peace and tranquillity .in the State of Sau-
v. rashtra. This by itself indicates no classification, as
The State of the object is a general one, which has to be kept in f
Saurashtra. view by every enlightened government or system of I •

administration. Every law dealing with the commis-

Chandrasekhara
Aiyar /. sion and the punishment of offences is based on this
need. The notification under which the Special Court
was established no doubt deals with "offences" as '.
distinguished from "cases" or "groups of cases,"
but here also, there is no rational classification. Offen-
ces presenting the same characteristic features, and
cognate in this sense, have been separately dealt withi
some of them are to go before the Special Court, while
others are left to be tried by the ordinary courts. The
circumstance that the deviations from normal pro-
cedure prescribed in the Ordinance are not so many or
vital, as in the Bengal case, does not in my humble
opinion, affect the result, as the defect of the absence
of a reasonable or rational classification is still there.
The negation of comlI}ittal proceedings is a matter of
much moment to the accused, as it deprives him of
the undoubted advantage of knowing the evidence for
the prosecution and discrediting it by cross-examma-
tion, leading possibly to his discharge even at that
early stage. ·

The argument for the respondent that there has been

no discrimination as against the appellant vis a vis
-
other persons charged with the same offences is un-
acceptable. Cognate offences have been left over for
trial by the ordinary courts. It is no answer to the
charge by A of discriminatory legislation to say that
B & C have also been placed in the same category as
himself, when he finds that D, E & F also liable for
the same or kindred offences have been left untouched
and are to be tried by ordinary. courts under the nor-
mal procedure. Much importance cannot be attached
to the affidavit of the Assistant Secretary to _the
Government. It may be that all the facts stated by him
as regards the frequency and locale of the particular

•
 S.C.R. SUPREME COURT REPORTS 477

- offences are true. But no such grounds for the classi-

fication are indicated, much less stated, either in the
impugned Ordinance or notification. This is certainly
1952
Kathi Rani•t
Rilwflt
not a legal requirement; but a wise prudence suggests v.
the need for such incorporation, as otherwise the as- The State of
. certainment of the reasons for the classification from Saurashtr11•
extraneous sources may involve the consideration of
Chandrasek_1'ar•
what may be regarded as after-thoughts by way of A.iyl1f' /.
explanation or justification.
In my view, the West Bengal Special Courts Act
decision governs this case also, and section 11 is bad.
It is unnecessary to deal with the other point raised

- by the learned counsel for the appellants as regards

the delegation of legislative powers involved in the
pro tanto repeal of some of the provisions of the Cri-
minal Procedure Code, viz., sections 5 and 28 and the
Schedule, especially as it seems concluded against him
by the decision in King Emperor v. Benoari Lal
Sarma and Others(1).
The convictions of the appellant and the sentences
imposed on him are set aside, and there will be a
retrial under the ordinary procedure.
BosE J.-I agree with my brothers Mahajan and
Chandrasekhara Aiyer that the Saurashtra State Pub-
lic Safety Measures (Third Amendment) Ordinance,
1949, offends article 14. As I explained in my judg-
ment in The State of West Bengal v. Anwar Ali
Sarkar(2), I prefer not to base my decision on the
classification test. For the reasons given there I am
of opinion that the differentiation here travels beyond
bounds which are legitimate. It is true the points of
differentiation are not as numerous here as in the
other case but the ones which remain are, in my judg-
ment, of a substantial character and cut deep enough
to attract the equality clauses in article 14. I would
hold the Ordinance invalid.
Preliminary objection overruled.
Agent for the respondent : P. A. Mehta.

(1) (1945) 72 I.A. 57. (2) [1952) S.C.'R. 284.

+ 1' 92