Judgement Appeal (No. 103 of 1945) by special leave, from an order of the High Court (August 24, 1943) which directed that the convictions and sentences passed on the appellants by Mr. S. Chaudhury, acting as a special magistrate under the Special Criminal Courts Ordinance, 1942, be set aside, and that the appellants be retried in the district of Hooghly. The following facts are taken from the judgment of the Judicial Committee. In January, 1943, the accused were tried on a charge of dacoity under s. 395 of the Indian Penal Code by Mr. Chaudhury acting as a special magistrate under the Special Criminal Courts Ordinance, 1942. On January 19, 1943, they were acquitted on the charge under s. 395, but were convicted under s. 403 of the offence of misappropriation and sentenced to pay a fine of Rs.50 each. Subsequently, the High Court at Calcutta, of its own motion, called for the record of the case, and on August 24, 1943, a bench consisting of Derbyshire C.J., Khundkar and Lodge JJ., set aside the convictions and sentences passed on the appellants and ordered that they be retried in the district of Hooghly. The ground on which that order was made was that in the view of the High Court there had been improper interference by the executive authority with the course of justice. At the date when the High Court made their order the Ordinance of 1942 had been declared ultra vires by the Federal Court in King-Emperor v. Benoari Lai Sarma (I. L. R. [ 1943] 2 C. 1.) and had been repealed on the day following that decision by s. 2 of Ordinance XIX. of 1943, which, by s. 3, provided that " Any " sentence passed by a Special Magistrate .... in exercise " of jurisdiction conferred or purporting to have been conferred " by or under the said Ordinance [of 1942] shall have effect, " and subject to the succeeding provisions of this section, shall " continue to have effect, as if the trial at which it was passed " had been held in accordance with the Code of Criminal " Procedure .... by .... a Magistrate of the first class " . . . . exercising competent jurisdiction under the said " Code/ The question in this appeal was whether the High Court had jurisdiction to make the order it did make. 1946. by .... a Magistrate of the first class " . . . . exercising competent jurisdiction under the said " Code/ The question in this appeal was whether the High Court had jurisdiction to make the order it did make. 1946. June 26. Pringle K.C. and T. B. W. Ramsay for the appellants. The first point is whether the High Court had jurisdiction to pass the order in question. The convictions and sentences passed on the appellants were good in law at the time they were passed and remained so until changed by s. 3 of the Ordinance of 1943. Right of appeal was taken away by the Ordinance of 1942 and was not restored by that of 1943, the most important section of which is s. 3, which provides for confirmation and continuance, subject to appeal, “of sentences." After the Ordinance of 1942 had been declared ultra vires by the Federal Court in King-Emperor v. Benoari Lai Sarma (I. L. R. [ 1943] 2 C. 1.) it was desirable during the emergency then in existence that people sentenced under that Ordinance should be retained in detention, and the Ordinance of 1943 was passed to deal with that situation. The subject-matter of that Ordinance is " sentences," and the practical issue was detention. " Conviction " and " sentence " are different things. " Sentence " is used in the Ordinance of 1943 in its ordinary sense of " punishment imposed " and is so used in certain sections of the Code of Criminal Procedure, s. 401 of which, e.g., gives power to suspend or remit sentences, and in ss. 412, 413 and 414 the quantum of sentence determines whether there is an appeal. Section 415 of the Code is the only place therein where the word " sentence " is loosely used. The courts in India have differed in their view of the construction of s. 3 of the Ordinance of 1943 Sushil Kumar Bose v. The Emperor (( 1943) 47 Cal. W. N. 757.) ; Jailal Sahu v. King-Emperor (( 1943) I. L. R. 22 Pat. 565.) ; Vishindas Lachmandas v. King-Emperor (( 1944) A. I. R. vol. 31 (Sind) 1.), and Kantilal Mangaldas v. King-Emperor (I. L. R. [ 1944] B. 142.). An order for retrial involves the reversal both of the findings made and the sentences passed by the trial court. 565.) ; Vishindas Lachmandas v. King-Emperor (( 1944) A. I. R. vol. 31 (Sind) 1.), and Kantilal Mangaldas v. King-Emperor (I. L. R. [ 1944] B. 142.). An order for retrial involves the reversal both of the findings made and the sentences passed by the trial court. At the time when the trying magistrate made his findings and passed sentence on the appellants the High Court, by reason of s. 26 of the Ordinance of 1942, had no authority to reverse either, and no authority was subsequently conferred on them to reverse the findings, s. 3 of the Ordinance of 1943 being so framed as to deal only with sentence. B. MacKenna for the respondent. The High Court had power under the Ordinance of 1943 to act as they did ; and they also had inherent power to quash the proceedings and to order a new trial. " Sentence " may mean either-" punishment imposed " or the judgment or decision of any civil or criminal court The Oxford Dictionary ; Tomlins Law Dictionary and Whartons Law Lexicon. It was contended for the appellants that the High Courts powers of revision under s. 3 of the Ordinance of 1943 are limited to revising the sentence passed by the special magistrate either by increasing or reducing it, and do not extend to revising the finding of the court which has led to the passing of the sentence. That is too narrow a meaning to place on the provisions of the Ordinance. Section 2 repeals the Ordinance of 1942, including s. 26 thereof, which excluded the ordinary powers of the High Court on appeal or in revision, and s. 3, sub-s. 1, provides that the sentence passed by the special court shall have effect as if the trial at which it was passed had been held in accordance with the Code of Criminal Procedure. It is submitted that if the Ordinance had contained no other provisions than these its effect would have been to give the same rights of appeal and the same powers of revision, both in respect of the finding and the sentence, as would have existed had the trial been held under the Code of Criminal Procedure. It is submitted that if the Ordinance had contained no other provisions than these its effect would have been to give the same rights of appeal and the same powers of revision, both in respect of the finding and the sentence, as would have existed had the trial been held under the Code of Criminal Procedure. Sub-section 2 of s. 3 was inserted for the purpose of excluding any possible objection to the exercise of these ordinary powers, and the word " sentence " was not used therein with the intention of limiting the High Courts powers to increasing or reducing the punishment imposed by the special court. The word " sentence " includes the findings of the court. As regards sub-ss. 1 and 2 of s. 3, the adoption of the narrow meaning of "sentence " might produce unfortunate consequences if the appellants construction were right, the effect of sub-s. 2 would be to preclude a convicted person from appealing against his conviction, for if the High Courts powers in revision are limited to increasing or reducing the punishment, they must be equally limited on appeal. Further, this construction would preclude the convicted person from obtaining any relief at all where he had been convicted of an offence for which the law provides only one punishment. Sections 405 and 415 of the Code of Criminal Procedure are helpful in giving a double meaning to " sentence." Section 561A of the Code gives inherent jurisdiction. Section 26 of the Ordinance of 1942 did take away the right of appeal and the powers of the High Court in respect of proceedings in the special courts, but the Ordinance of 1943 restors to the High Court the jurisdiction of which it had been deprived. Pringle K.C. replied. The sentences were not sentences at all if the special “courts " were held to be ultra vires. Criminal law gives a definite meaning to “sentence," and if the Government had intended to equate sentences and convictions they would have said so. July 22. Pringle K.C. replied. The sentences were not sentences at all if the special “courts " were held to be ultra vires. Criminal law gives a definite meaning to “sentence," and if the Government had intended to equate sentences and convictions they would have said so. July 22. The judgment of their Lordships was delivered by SIR JOHN BEAUMONT, who stated the facts set out above and continued The only question on which their Lordships have heard an argument is as to whether the High Court had jurisdiction to make the order which it did make, and the grounds on which the order was based do not call for discussion. Their Lordships would, however, observe that if they were satisfied that the order of the High Court was within its competence they would be very slow to interfere with the manner in which the High Court saw fit to exercise its jurisdiction. Under the Code of Criminal Procedure a High Court possesses very wide powers of revison over the proceedings of inferior criminal courts and, in a case tried under the Code, there can be no doubt that a High Court, acting under the powers conferred by ss. 435 and 439, can send for the record of any proceedings and can set aside a conviction and order a new trial by a court of competent jurisdiction subordinate to such High Court. If this case had been tried under the Code it would have presented no difficulty, but it was, in fact, dealt with under two Ordinances promulgated by the Governor-General under s. 72 of sch. IX. to the Government of India Act, 1935, and the provisions of those Ordinances must be considered. Under the Special Criminal Courts Ordinance, 1942 (which is hereinafter referred to as "the Ordinance of 1942") it is provided in s. 3 that courts of criminal jurisdiction may be constituted under the Ordinance consisting of ; (1.) Special Judges ; (2.) Special Magistrates, and (3.) Summary Courts. Section 4 provides that a Provincial Government may appoint to be a Special Judge for such area as it may think fit any person who has acted for a period of not less than two years in the exercise of the powers of a Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure. Section 4 provides that a Provincial Government may appoint to be a Special Judge for such area as it may think fit any person who has acted for a period of not less than two years in the exercise of the powers of a Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure. Section 5 deals with the jurisdiction of Special Judges ; s. 6 deals with their procedure, and s. 7 with the sentences which they may impose. Section 8 enables proceedings before a Special Judge in specified cases to be submitted for review by a person nominated in that behalf by the Provincial Government, which person is to be chosen from the judges of the appropriate High Court. Section 9 provides that any Presidency Magistrate or Magistrate of the first class, who has exercised powers as such for a period of not less than two years, may be invested by the Provincial Government with the powers of a Special Magistrate under the Ordinance. Section 10 deals with the jurisdiction of Special Magistrates. Section n deals with their procedure, and s. 12 with the sentences which they may pass. Section 13 provides that where a Special Magistrate passes a sentence of transportation, or imprisonment for a term exceeding two years, an appeal shall lie to the Special Judge having jurisdiction in the area or, if there is no Special Judge, to the High Court in a Presidency town, and elsewhere to the Court of Session. Subsequent sections deal with Summary Courts and are irrelevant to the present appeal. Section 26 is in the following terms " Notwithstanding the provisions of the Code, or of any other " law for the time being in force, or of anything having the force "of law by whatsoever authority made or done, there shall, " save as provided in this Ordinance, be no appeal from any "order or sentence of a court constituted under this Ordinance " and, save as aforesaid, no court shall have authority to revise " such order or sentence, or to transfer any case from any such " court, or to make any order under s. 491 of the Code or have " any jurisdiction of any kind in respect of any proceedings of " any such court. On April 22, 1943, in King-Emperor v. Benoari Lai Sarma the High Court of Calcutta held that the provisions of the Ordinance of 1942 were ultra vires and that the Special Courts purporting to act under that Ordinance had no jurisdiction. On June 4, 1943, this decision was upheld by the Federal Court of India (1 I. L. R. [ 1943] 2 C. 1.). To complete the history of the case it may be mentioned that on November 6, 1944, on appeal to this Board, the decision of the Federal Court was reversed, and it was held that the provisions of the Ordinance of 1942 were intra vires and that the Special Courts acting under that Ordinance had jurisdiction (( 1944) L. R. 72 I. A. 57.). This decision, however, was given after the order of the High Court which is the subject of the present appeal. On June 5, 1943, that is, the day after the delivery of judgment by the Federal Court in Benoari Lal’s case (1), the Governor-General promulgated Ordinance No. XIX. of 1943 (which is hereinafter referred to as " the Ordinance of 1943 "). Section 1 provides that the Ordinance shall come into force at once. Section 2 repeals the Ordinance of 1942; Section 3 is in the following terms " Confirmation and continuance, subject " to appeal, of sentences.—(1.) Any sentence passed by a Special " Judge, a Special Magistrate or a Summary Court in exercise of jurisdiction conferred or purporting to have been conferred " by or under the said Ordinance shall have effect, and subject " to the succeeding provisions of this section, shall continue M to have effect, as if the trial at which it was passed had been " held in accordance with the Code of Criminal Procedure, 11 1898 (V. of 1898), by a Sessions Judge, an Assistant Sessions " Judge, or a Magistrate of the first class respectively, exercising 11 competent jurisdiction under the said Code. " (2.) Notwithstanding anything contained in any other law, " any such sentence as is referred to in sub-s. 1 shall, whether " or not the proceedings in which the sentence was passed were " submitted for review under s. 8; and whether or not the sentence was the subject of an appeal under s. 13 or s. 19, of the " said Ordinance, be subject to such rights of appeal as would " have accrued, and to such powers of revision as would have M been exercisable under the said Code, if the sentence had at a " trial so held been passed on the date of the commencement " of this Ordinance. " (3-) Where any such sentence as aforesaid has been altered V in the course of review or on appeal under the said Ordinance, " the sentence as so altered shall for the purposes of this " section be deemed to have been passed by the court which " passed the original sentence." Section 4 deals with pending cases and is not material to the present appeal, and s, 5 confers a right of indemnity. The question as to the jurisdiction of the High Court to make the order under appeal was dealt with very shortly by the High Court in a single sentence contained in the judgment of the learned Chief Justice. He said " We have our ordinary " powers of revision and, under the inherent jurisdiction of the " court, confirmed to us in s. 561 a of the Criminal Procedure "Code”, we have powers to make such orders as may be " necessary to give effect to any order under this Code, or to " prevent abuse of the process of any court or otherwise to " l secure the ends of justice. If there were any doubt as to " our jurisdiction to use those powers, here it is set at rest by * s. 3, sub-s. 2, and s. 4 of the Ordinance No. XIX. of 1943." In their Lordships opinion, the suggestion that the High Court possessed inherent jurisdiction to interfere with the order of the Special Magistrate is quite untenable. At the date when the order of the High Court was made the Special Magistrate had been held to have had no jurisdiction. of 1943." In their Lordships opinion, the suggestion that the High Court possessed inherent jurisdiction to interfere with the order of the Special Magistrate is quite untenable. At the date when the order of the High Court was made the Special Magistrate had been held to have had no jurisdiction. He was not a court inferior to the High Court, and, indeed, was not a court at all, his order was a mere nullity, and no question of revising it could arise. This was pointed out in the opening passages of the judgment of this Board delivered by Lord Simon in King-Emperor v. Benoari Lai Sarma (( 1944) L. R. 72 LA. 57.). The restoration of the jurisdiction of Special Magistrates by the decision of this Board is irrelevant, since by that time the Ordinance of 1942 had been repealed by the Ordinance of 1943, and apart from this, s. 26 of the former Ordinance took away all powers of revision by the High Court, and no court can claim inherent jurisdiction to exercise powers expressly taken away by legislation. In their Lordships view, if the High Court possessed any power of revision in the present case, such power must be found in the Ordinance of 1943. Section 3 of that Ordinance uses the expression " sentence " passed" by a Special Judge or Special Magistrate and does not mention " conviction/ It has been argued by the Crown that the word " sentence " is used in the Ordinance of 1943 in the wider sense as meaning the judgment or decision of the court; on the other hand, the appellants contend that the word is used in the narrower sense of the pronouncement of the punishment imposed by the court. They rely on certain sections of the Code of Criminal Procedure,e.g.,ss.401,412 and 413, where the word is plainly used in the narrower sense. On the other hand, the Crown relies on ss. 405 and 415 where the word is used in a wider sense. They rely on certain sections of the Code of Criminal Procedure,e.g.,ss.401,412 and 413, where the word is plainly used in the narrower sense. On the other hand, the Crown relies on ss. 405 and 415 where the word is used in a wider sense. Their Lordships do not doubt that the word " sentence " used in relation to the decision of a criminal court may bear the wider or narrower meaning according to the context, but the primary meaning of " sentence passed," the expression used in the Ordinance 01 1943, is " punishment " imposed." The passing of sentence in a criminal trial is a distinct step which follows conviction; it is often postponed to a later date and may be based on further evidence relevant to sentence but irrelevant to guilt. In determining whether the expression is used in the Ordinance of 1943 in other than its primary sense it is necessary to notice the circumstances in which that Ordinance came to be promulgated. At that time, that is to say, in June, 1943, the Governor-General was faced with the situation that many persons had been convicted by officials duly qualified as judges and magistrates experienced in the administration of the criminal law, but who had been held by the Federal Court to be without jurisdiction in these particular cases. It may be assumed that the Governor-General would desire to treat the decision of the Federal Court with all respect and that, wide as his powers may be in cases of emergency of legislation by Ordinance under s. 72 of sch. IX. to the Government of India Act, 1935, he would be unwilling to promulgate an Ordinance brusquely setting at naught the decision of the Federal Court. On the other hand, as the authority responsible for the safety of India in a very dangerous period, he may well have felt that it would endanger public safety to release all persons who had been convicted and sentenced under the Ordinance. It was in that situation that the Ordinance of 1943 was promulgated, and it is in relation to that situation that it must be construed. Section 2 repealed the Ordinance of 1942 and thereby accepted the result of the decision of the Federal Court whatever might be the fate of a possible appeal against such decision. It was in that situation that the Ordinance of 1943 was promulgated, and it is in relation to that situation that it must be construed. Section 2 repealed the Ordinance of 1942 and thereby accepted the result of the decision of the Federal Court whatever might be the fate of a possible appeal against such decision. Section 3, sub-s. 1, so far as material for the present purpose, provides in effect that any sentence passed by a Special Magistrate under the Ordinance of 1942 shall have effect, and continue to have effect, as if the trial at which it was passed had been held in accordance with the Code of Criminal Procedure by a magistrate of the first class exercising competent jurisdiction under the said Code. It is very noticeable that it is the sentence passed which is to be treated as having been lawfully passed under the Code, and nothing is said about the conviction recorded. Conviction of ,a criminal offence may have serious consequences, apart from the punishment directly imposed for such offence. It may, for example, disqualify a person from holding office, or may affect his status in society. It would require clear language to establish that any legislative authority intended to provide that convictions held to have been illegal by the highest judicial tribunal in the country should, nevertheless, be treated as legal by legislative enactment. Their Lordships can find nothing in the language of s. 3, sub-s. 1, of the Ordinance of 1943 to suggest that the Governor-General intended to do more than to render valid the punishment imposed by the special courts, leaving the validity of the convictions to. rest on judicial decision. Sub-section 2 of s. 3 mitigates the rigour of sub-s. 1 by providing that any sentence referred to in sub-s. 1 shall be subject to such rights of appeal as would have accrued, and to such powers of revision as would have been exercisable under the Code, if the sentence at the trial so held had been passed on the date of the commencement of the Ordinance. Sub-section 2 seems to be a necessary corollary to sub-s. 1. Sentences rendered valid by sub-s. 1, by treating them as having beep lawfully imposed under the Code, are to be subject to the same rights in appeal and revision as they would have been subject to if actually so imposed. Sub-section 2 seems to be a necessary corollary to sub-s. 1. Sentences rendered valid by sub-s. 1, by treating them as having beep lawfully imposed under the Code, are to be subject to the same rights in appeal and revision as they would have been subject to if actually so imposed. But it is clear both from the opening reference to " any such sentence as is referred to in " sub-s. 1," and from its plain intent that the subject-matter of sub-s. 2 is the same as that of sub-s. 1 and if sub-s. 1 is confined to punishments imposed, sub-s. 2 is similarly limited. This view of the meaning of the Ordinance of 1943 is in agreement with that taken by a Full Bench of the Bombay High Court in Kantilal Mangaldas v. King-Emperor (I. L. R. [ 1944] B. 142.), and in disagreement with the view of a Full Bench of the Chief Court of Sind in Vishindas Lachmandas v. King-Emperor (( 1944) A. I. R.vo1. 31 (Sind) 1.). In their Lordships1 opinion the High Court of Calcutta had power in revision to review the sentences passed on the appellants, to enhance them or to reduce them, but it had no power to set the convictions aside or to direct a retrial. Their Lordships will therefore humbly advise His Majesty that this appeal be allowed and that the order of the High Court made on August 24, 1943, be set aside.