Full Judgment Text
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PETITIONER:
REHMAN SHAGOO AND OTHERS
Vs.
RESPONDENT:
STATE OF JAMMU AND KASHMIR
DATE OF JUDGMENT:
10/09/1959
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
DAS, SUDHI RANJAN (CJ)
DAS, S.K.
SARKAR, A.K.
HIDAYATULLAH, M.
CITATION:
1960 AIR 1 1960 SCR (1) 680
ACT:
Constitution-Legislative competence of Ruler of Jammu and
Kashmir-ordinance Promulgated creating new offence of aiding
the enemy and prescribing trial by special Judges following
special procedure--If discriminatory-Whether Ordinance was
legislation with respect to defence-Defence, meaning of-
Repeal of law empowering Ruler to legislate-Whether
Ordinance survives--Cessation of emergency-If Ordinance
occasioned by emergency also lapses Jammu and Kashmir
Constitution Act, S. 1996, s. 5-- Enemy Agents Ordinance, S.
2005 (J. K. Ordinance VIII Of S. 2005) Jammu and Kashmir
Constitution (Amendment) Act, S. 2005 (J. K. XVII Of S.
2005)--jammu and Kashmir General Clauses Act, s. 1977 (J.
K. XX Of S. 1977), S. 16(b)-Constitution of India, Art. 14
Part XVIII.
HEADNOTE:
Under the Jammu and Kashmir Constitution Act all powers,
legislative, executive and judicial vested in the Ruler. On
the accession of the State to India on October 22, 1947, the
powers in respect of defence, external affairs and
communications were ceded to India. Under S. 5 Of the
Constitution Act, the Ruler promulgated the Enemy Agents
Ordinance, S. 2005, which provided for the trial and
punishment of enemy agents and other persons siding the
enemy. The Ordinance provided for trial of offences by
Special judges and prescribed a procedure materially
different from that followed in the criminal Courts.
Section 5 of the Constitution Act was repealed on November
17, 1951. The appellants were prosecuted under the
Ordinance for offences alleged to have been committed on
June 27 and 28, 1957. They contended (1) that the Ordinance
violated Art. 14 of the Constitution of India, (ii) that the
Ruler had no legislative competence to issue the Ordinance
as it dealt with defence, (iii) that S- 5 of the
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J. K. Constitution Act having been repealed the Ordinance
came to an end, (iv) that the Ordinance had lapsed as the
emergency on account of which it was issued had ceased,
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and (v) that the Ordinance was void as it was inconsistent
with the Emergency Provisions in Part XVIII of the
Constitution of India.
Held, that the Ordinance was intra vires, valid and
subsisting.
The Ordinance was riot discriminative and did not violate
Art. 14 Of the Constitution. In view of the circumstances
existing in the State, " enemy agents " and other persons
aiding the I, enemy " to whom the Ordinance applied formed a
reasonable classification which was founded on an
intelligible differentia which distinguished such persons
from others and the differentia had a rational relation to
the object of the Ordinance which was to check subversion of
the Government. Besides, if the Ordinance did not make any
classification of persons but only created an offence and
provided stringent procedure and punishment then there was
no discrimination at all as everybody who committed the
offence was subjected to the same procedure.
Ram Krishna Dalmia v. Shri justice S. R. Tendolkar, [1959]
S.C.R. 279 followed.
The Ordinance was not legislation with respect to defence
and was within the legislative competence of the Ruler. The
entry " defence " dealt only with the armed forces whether
on land or sea or in the air and the raising or maintenance
of such forces and their operations. The Ordinance dealt in
the main with certain acts done with the intent to aid the
enemy though indirectly it was concerned with the operations
of the armed forces. In pith and substance the Ordinance
was a law relating to public order, criminal law and
procedure and not defence.
Though s. 5 Of the Constitution Act was repealed the
Ordinance was saved by s. 6(b) of the Jammu and Kashmir
General Clauses Act. Section 6(b) saved, inter alia, "
anything duly don(, " under a repealed enactment and the
Ordinance was a thing duly done " under s. 5 of the
Constitution Act.
The Ordinance was a permanent piece of legislation. It came
into existence because of an emergency but that was only the
occasion for passing it. Being a permanent law it could
only be brought to an end by means of repeal by competent
authority.
The Emergency Provisions in Ch. XVIII of the Constitution
of India had nothing to do with the validity or otherwise of
the Ordinance and the question of any inconsistency between
the Ordinance and these provisions did not arise.
JUDGMENT:
CRIMINAL APPELATE JURISDICTION: Criminal Appeal No. 60 of
1958.
Appeal from the judgment and order dated the, 19th February
1958, of the Jammu and Kashmir High Court, in Writ Petition
No. 53 of 1957.
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R. V. S. Mani, for the appellants.
Jaswant Singh, Advocate-General for the State of Jammu and
Kashmir, G. S. Pathak and T. M. Sen for the respondent.
1959. September 10. The Judgment of the Court was
delivered by
WANCHOO J.-This appeal, on a certificate granted under Art.
132 of the Constitution of India (hereinafter called the
Constitution) by the High Court of Jammu and Kashmir, raises
the constitutionality of the Enemy Agents Ordinance), No.
VIII of S. 2005 hereinafter called the Ordinance),
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promulgated by His Highness under s. 5 of the Jammu and
Kashmir Constitution Act, S. 1996, (hereinafter called the
Constitution-Act). The appellants also made an application
under Art. 132 (3) of the Constitution to this Court for
permission to urge other grounds taken by them in the High
Court besides those relating to the interpretation of the
Constitution. We intimated at the outset of the arguments
that this application was being allowed and learned counsel
for the appellants was permitted to make his submissions on
all points raised in the High Court.
The appellants are being prosecuted before a Special Court
constituted under the Ordinance for offences under s. 3 of
the Ordinance, ss. 3, 4 and 5 of the Explosive Substances
Act, (VI of 1908), s. 120-B of the Penal Code and s. 29 of
the Public Security Act read with rr. 28 and 32 of the Rules
thereunder. The incidents out of which this prosecution
arose took place on June 27 and 28, 1957.
The circumstances in which the Ordinance came to be passed
were these: Outside raiders began attacking Kashmir on
October 22, 1947. The State acceded to India on October 26,
1947. It appears that the Enemy Agents Ordinance, No. XIX
of S. 2004 was enacted soon after in January 1948. There
was " cease-fire " on January 1, 1949 and the raids came to
an end. This was followed by the present Ordinance which
became law an January 24, 1949. The preamble to the Ordin-
ance says that an emergency had arisen as a result of
683
wanton attacks by outside raiders and enemies of the State
which made it necessary to provide for the trial and
punishment of enemy agents and persons committing certain
offences with intent to aid the enemy and as it was
necessary to amend Ordinance XIX of S. 2004, therefore, the
Ordinance was passed consolidating the law and repealing the
earlier Ordinance.
The main contentions of the appellants in the High Court
were that the Ordinance was unconstitutional and void by
reason of the violation of Art. 14 of the Constitution and
that His Highness had no legislative competence to enact it
and that in any case it came to an end when s. 5 of the
Constitution-Act was repealed in 1951.
The High Court was of the view that there was a reasonable
classification and that the classification was founded on an
intelligible differentia which distinguished persons or
things that were grouped together from those left out of the
group and the differentia had a rational relation with the
object sought to be achieved by the Ordinance. It therefore
held that the Ordinance was not hit by Art. 14. It was
further of the view that His Highness had legislative
competence to promulgate the Ordinance when he did so and
that when certain subjects were made over to the Government
of India by the Instrument of Accession, the State retained
its powers to legislate even on these subjects so long as
the State law was not repugnant to any law made by the
Central Legislature, thus holding that there was concurrent
power in the State to legislate even on the subjects
transferred to the Government of India. Finally., the High
Court held that the repeal of s. 5 of the Constitution-Act
did not result in the Ordinance coming to an end, as s. 6 of
the Jammu and Kashmir General Clauses Act saved it. It,
therefore, dismissed the writ petition filed by the
appellants.
The main contentions of the appellants before us are these
:-
(1)The Ordinance is unconstitutional as it violates Art.
14 of the Constitution.
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(2)There was no legislative competence in His Highness to
issue the Ordinance under s. 5 of the
684
Constitution Act, as His Highness had executed the
Instrument of Accession on October 26, 1947 surrendering his
powers regarding Defence, Communications and External
Affairs to the Government of India and the Ordinance came
under the head Defence ".
(3)Section 5 of the Constitution-Act was repealed by an
amending Act, No. XVII of S. 2005, passed on November 17,
1951, and therefore the Ordinance also came to an end on the
day s. 5 was repealed.
(4)The Ordinance has in any case lapsed as the conditions
under which it was enacted had become obsolete and did not
exist any more.
(5)The Ordinance was void as it was inconsistent with Art.
352 of the Constitution and the Articles following.
Re. (1)
The Ordinance defines " enemy " and " enemy agent in s. 2.
Section 3 provides that whoever is an enemy agent or, with
intent to aid the enemy, does or attempts or conspires with
any other person to do any act which is designed or likely
to give assistance to the military or air operations of the
enemy or to impede the military or air operations of Indian
forces or His Highness’ forces or the forces of any Indian
State or to endanger life or is guilty of incendiarism shall
be liable to various punishments. Section 4 provides that
any offence punishable under s. 3 shall be triable under
this Ordinance and that where any other offence is committed
along with an offence under s. 3 which may be jointly tried
under the Code of Criminal Procedure, a special Judge trying
the offence under s. 3 shall also try the other offence in
accordance with the procedure laid down by the Ordinance.
Section 5 provides for appointment and jurisdiction of
Special Judges. Section 6 gives power to the government of
the State to transfer proceedings from one Special Judge to
another and provides for the procedure to be followed by the
Special Judge to whom a case is transferred. Section 7 lays
down that the procedure for trial of warrant cases shall be
followed by Special
685
Judges and no commitment proceedings would be necessary.
This action% also gives powers to Special Judges in the
matter of recording evidence, summoning witnesses and
adjournments and the Special Judge is deemed to be a Court
of Session. Section 8 provides for sentences to be passed
by the Special Judge. Section 9 provides for power of
review by a Judge of the High Court, designated by the
Government and the decision of such Judge is made final.
Section 10 gives power to the Special Judge and the
Reviewing Judge to hear proceedings in camera if it is
expedient in the interest of public safety or the defence of
the State so to do. Section 11 days down that an accused
person triable under the Ordinance may be defended by a’
pleader if the Special Judge or the Reviewing Judge grants
permission in this behalf and also gives power to the
Special Judge or the Reviewing Judge to appoint a pleader
for an accused who has not engaged a pleader himself.
Section 12 provides for a special rule of evidence
empowering the Special Judge to admit certain statements
recorded by a magistrate, when the person who made them is
dead or cannot be found or is incapable of giving evidence.
Section 13 provides for powers to deal with a situation
arising out of intransigent conduct of accused persons
during the course of trial. Section 14 takes away the power
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of all courts to interfere with the proceedings or orders of
the Special Judge or to transfer any case pending before him
or to make any order under s. 491 of the Code of Criminal
Procedure. Section 15 prohibits the giving of copies of
records of any case before a Special Judge to any one except
to an accused or his pleader and makes it punishable for
such accused or pleader to show the copy to any other person
or to divulge its contents to anybody except in the course
of proceedings for the purpose of which it was obtained. It
further provides for the return of the copies within ten
days after the conclusion of the proceedings before the
Special Judge. Section 16 provides for the application of
the Code of Criminal Procedure or any other law for the time
being in force to proceedings under the Ordinance in so far
as they are not inconsistent with its
87
686
provisions. Section 17 makes disclosure of information
prohibited under s. 15 punishable. Section 18 gives power
to the Government to make rules necessary to carry into
effect the purposes of the Ordinance. Section 19. repeals
the Enemy Agents Ordinance, XlX of S. 2004, but provides
that all rules made, orders issued, prosecution and action
taken and punishment awarded under the repealed Ordinance
shall be deemed to have been made, issued, taken and awarded
under the Ordinance.
It will be clear from this analysis of the provisions of the
Ordinance that the procedure under the Ordinance is in
material respects different from the ordinary procedure of
Criminal Courts dealing with offences. The contention of
the appellants is that this amounts to discrimination and
therefore the Ordinance is void and unconstitutional as it
violates Art. 14 of the Constitution.
The provisions of Art. 14 of the Constitution have come up
for discussion before this Court in a number of cases. It
is now well established that " while Art. 14 forbids class
legislation, it does not forbid reasonable classification
for the purposes of legislation. In order, however, to pass
the test of permissible classification two conditions must
be fulfilled, namely (i) that the classification must be
founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left
out of the group and, (ii) that differentia must have a
rational relation to the object sought to be achieved by the
statute in question. The classification may be founded on
different bases, namely, geographical, or according to
objects or occupations or the like. What is necessary is
that there must be a nexus between the basis of
classification and the object of the Act under consider-
ation. It is also well established by the decisions of this
Court that Art. 14 condemns discrimination not only by a
substantive law but also by a law of procedure." (see Sri
Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar (1)). We
have, therefore, to see whether there is reasonable
classification for the purposes of the
(1) [1959] S.C.R. 279.
687
Ordinance. Now the Ordinance was passed in January 1949
soon after the cease-fire. But though the attack by the
outside raiders and enemies of the State had come to an end
it was felt that conditions were such that the emergency
continued and it was necessary to provide for trial and
punishment of enemy agents and persons committing certain
offences with intent to aid the enemy by a special procedure
which was enacted in the Ordinance. With that end in view,
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an "enemy" was defined to mean and include "any person
directly or indirectly, participating or assisting in the
campaign recently undertaken by raiders from outside in sub-
verting the Government established by law in the State." ’An
" enemy agent " was defined as meaning " a person, not
operating as a member of enemy armed force, who is employed
by, or works for or acts on instructions received from the
enemy." It is clear, therefore, that " enemy " and " enemy
agent " are a clearly defined class of persons and would
give rise to a reasonable classification for the purpose of
the Ordinance. Section 3 provides for punishment of a
person who is an enemy agent or who does certain things with
intent to aid the enemy. There can be no doubt in the
circumstances existing in the State then and now that the
classification is reasonable and is founded on an
intelligible differentia which distinguished persons brought
under the Ordinance from others. There is also no doubt
that the differentia had a rational relation to the object
sought to be achieved by the Ordinance. There had recently
been a campaign to subvert the government established by law
in the State and though the actual raids were over, the
danger of subversion of the government was not over and the
threat from those who intended to aid the enemy continued.
In these circumstances the Ordinance was enacted and
provided a special procedure for the trial of enemy agents
or those who did certain things with intent to aid the
enemy, the object of such persons being to subvert the
government established bylaw in the State. If it is said
that the Ordinance does not purport to make any
classification of persons at all but only creates an offence
and
688
provides a stringent procedure -for the punishment of that
offence, then there is no discrimination at all, for anybody
who commits that offence is subjected to the drastic
procedure. It has also to be remembered that in order to
repel the charge of discrimination the permissible
classification need not be of persons only. Certain
offences may be so heinous or serious that they may in
certain circumstances be treated as a class and tried in a
different way. The offence created by s. 3 of the Ordinance
is not found as such in the Penal Code but is a new offence
of an aggravated kind which may in the circumstances
prevailing in the State mentioned above be treated as
different from the ordinary offences; and may well be dealt
with by a drastic procedure without encountering the charge
of violation of the. equal protection clause. We are,
therefore, of opinion that on the principles laid down by
this Court in the large number of cases summarised in the
Dalmia case (1), the Ordinance cannot be said to be
discriminatory and, therefore, violative of Art. 14 of the
Constitution. The contention under this head on the
constitutionality of the Ordinance therefore must be
rejected.
Re. (2).
The Ordinance purports to have been promulgated under s. 5
of the Constitution-Act, which declared that all powers,
legislative, executive and judicial, in relation to the
State and its government, were always inherent in and
possessed and retained by His Highness and nothing in the
Act was to affect or deemed to have affected the right and
prerogative of His Highness to make laws, and issue
proclamations, orders and ordinances by virtue of his
inherent authority. It is, however, submitted that on
account of the accession of the State to India on October
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26, 1947, certain matters were surrendered to the Government
of India and therefore His Highness had no power left to
legislate on matters so surrendered. These matters are to
be found in the Schedule to the Instrument of Accession (2).
This Schedule consists of 20 items, grouped under
(1) [19591 S.C.R. 279.
(2) Appendix VII of the White Paper on Indian States, p.
165.
689
four heads: (A) Defence, (B) External Affairs, (C)
Communications and (D) Ancillary. We are not here concerned
with heads (B) and (C) and need only consider the items
under (A) and (D). There are four items under the head "
Defence ", namely-
1.The naval, military and air forces of the Dominion and
any other armed force raised or maintained by the Dominion,
any armed forces, including forces, raised or maintained by
an acceding State, which are attached to, or operating with,
any of the armed forces of the Dominion.
2.Naval, military and air force works, administration of
cantonment areas.
3. Arms, fire-arms, ammunition.
4. Explosives.
And there are four items under the head " Ancillary namely-
1.Elections to the Dominion Legislature, subject to the
provisions of the Act and of any Order made thereunder.
2. Offences against laws with respect to any of the
aforesaid matters.
3.Inquiries and statistics for the purposes of any of the
aforesaid matters.
4.Jurisdiction and powers of all courts with respect to
any of the aforesaid matters, but except with the consent of
the Ruler of the acceding State, not so as to confer any
jurisdiction or powers upon any courts other than courts
ordinarily exercising jurisdiction in or in relation to that
State.
The contention on behalf of the appellants is that the
provisions of the Ordinance were in particular covered by
item (1) under the head " Defence ". It is also urged that
the High Court was not correct in holding that there was
concurrent jurisdiction in the State as well as the Central
Legislature even with respect to items in the Schedule and
that on a correct interpretation of the Instrument of
Accession, the Central Legislature alone had power to
legislate with respect to the matters in the Schedule. We
do not think it necessary to decide in this case whether the
State had concurrent
690
powers to legislate on matters covered by the Schedule and
shall proceed on the assumption that the Central Legislature
alone had the power to legislate on these matters. The
question then which immediately arises is whether the
Ordinance is covered by item (1) under the head " Defence
The other items either under the head " Defence or under
the head " Ancillary are immaterial for this purpose. If the
Ordinance is not covered by item (1) under the head"
Defence ", it would then be within the competence of the
State Legislature or of His Highness to promulgate it, for
all other matters besides those covered by the twenty items
in the Schedule in any case remained with the State. Item
(1) under the head " Defence " deals with the naval,
military and air forces of the Dominion and any other armed
forces raised or maintained by the Dominion and includes any
armed forces including those raised or maintained by any
acceding State, which are attached to, or operating with any
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armed forces of the Dominion. Howsoever wide an interpret-
ation is given to this entry it will be seen that it deals
only with the armed forces whether on land or sea or in the
air and the raising or maintenance of such forces and their
operations. The Ordinance has, in our opinion, nothing to
do with the matters covered by this entry. It is true that
it defines " enemy " and " enemy agent " and creates
offences with reference to certain acts done with intent to
aid the enemy including giving of assistance to the military
or -air operations of the enemy or impeding the military or
air operations of Indian forces or His Highness’ forces or
the forces of any Indian State. But it is only indirectly
concerned with the operations of the armed forces and its
main purpose is to deal with persons who with intent to aid
the enemy commit certain acts including assistance to the
military or air operations of the enemy or impediment to the
military or air operations of the Indian armed forces.
Besides this reference to military or air operations, the
rest of the provisions of the Act has nothing to do with the
armed forces and if one looks at the pith and substance of
the Ordinance it will be found that it deals with persons
who are concerned with the
691
subversion of the government established by law by becoming
enemy agents or doing certain acts with intent to aid the
enemy. In pith and substance therefore, the Ordinance deals
with public order and criminal law and procedure; the mere
fact that there is an indirect impact on armed forces in s.
3 of the Ordinance will not make it in pith and substance a
law covered by item (1) under the head "Defence" in the
Schedule. We are therefore of opinion that there is no
force in the contention that the Ordinance was beyond the
legislative competence of His Highness because certain
matters were ceded in the Instrument of Accession dated
October 26, 1947, to the Government of India. This
contention must also fail.
Re. (3).
The contention is that as s. 5 of the Constitution-Act was
repealed on November 17, 1951, the Ordinance which is stated
to have been passed under that section also came to an end.
It is enough to say that there is no force in this argument.
Clause (b) of s. 6 of the Jammu and Kashmir General Clauses
Act, (J.K.XX of S. 1977), clearly saves the Ordinance. It
is as follows:-
" Where this Act, or any Act made after the commencement of
this Act, repeals any enactment hitherto made or hereafter
to be made, then, unless a different intention appears, the
repeal shall not ....
(b) affect the previous operation of any enactment so
repealed or anything duly done or suffered thereunder;"
It will be clear that the promulgation of the Ordinance was
a "thing duly done" under s. 5 of the Constitution Act and
the repeal of s. 5 of the Constitution-Act would thus leave
the Ordinance which was promulgated thereunder entirely
unaffected. The repeal of s. 5 can only mean the withdrawal
of that legislative power on and from the date of repeal.
Anything done while the power subsisted cannot be affected
by such repeal. A law enacted under a Constitution-Act does
not lose its vitality and would continue even though there
may be repeal of parts of the Constitution-Act under which
it was enacted as long as the law
692
is not inconsistent with the Constitution-Act as it emerges
after the amendment and repeal of certain provisions
thereof. It derives its binding force from the fact that it
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was within the competence of the legislature when it was
passed and being permanent would continue till amended or
repealed under the amended Constitution-Act. We are,
therefore, of opinion that the Ordinance did not come to an
end on the repeal of s. 5 of the Constitution-Act and
remained a valid piece of legislation in view of s. 6 (b) of
the Jammu and Kashmir General Clauses Act.
Re. (4).
It is urged that the conditions in the State have changed
considerably since 1949 and therefore the Ordinance must be
held to have lapsed. It is enough to say that there is
nothing in this contention, even assuming that conditions in
the State are not now exactly the same as they were in 1949.
The Ordinance was a permanent piece of legislation. It is
true that it came into existence because of an emergency,
but that was only the occasion for passing the Ordinance.
The Ordinance, however, tries to reach an evil of deeper
roots, an evil which cannot be said to have ceased to exist,
viz., subversion of the government established by law in the
State in conjunction with the enemies of the State. Being a
permanent law, it can only be brought to an end by means of
repeal by competent authority. It is not the case of the
appellants that the Ordinance has been repealed by any
competent authority. It must therefore be held to be in
force till such repeal even if the conditions now are
assumed not to be exactly the same as in 1949. This
contention therefore also fails.
Re. (5).
It is urged that the Ordinance was unconstitutional because
it is inconsistent with Art. 352 and the subsequent
Articles. We must say that Art. 352 and the subsequent
Articles in Part XVIII of the Constitution relating to
Emergency Provisions have nothing whatsoever to do with the
validity or otherwise of the Ordinance. We have been unable
to understand how there can be any inconsistency between the
Ordinance
693
and the provisions contained in Part XVIII of the
Constitution. This contention also fails.
It now remains to notice three points that were urged during
the course of arguments on behalf of the appellants, namely,
(i) s. 4 (1) of the Ordinance is hit by Art. 20 (1) of the
Constitution, (ii) s. 11 (1) is hit by Art. 22 (1) of the
Constitution, and (iii) the Special Judge has no
jurisdiction to try an offence under the Explosive
Substances Act. Apart from the fact that these points not
having been raised by the appellants in their writ petition
or urged before the High Court, we should be reluctant to
permit them to raise these points for the first time in this
Court, we may, in passing, point out that the offences for
which the appellants are being prosecuted are said to have
taken place in June 1957 and that they have been allowed to
engage lawyers of their choice. They can therefore have no
grievance so far as the first two points are concerned and
we leave them to be decided in a case where there is
grievance. There is no substance in the third point.
There is no force therefore in this appeal and it is hereby
dismissed.
Appeal dismissed.