TMI Blog1953 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... dged, a considerable time afterwards, on 31st January, 1949. On 28th August, 1949, there was an order in terms of section 3 of the Special Tribunal Regulation No. V of 1358 F., which was in force at that time, directing the appellant to be tried by the Special Tribunal (A). The accused being a public officer, the sanction of the Military Governor was necessary to prosecute him and this sanction was given on 20th September, 1949. On 13th December, 1949, a new Regulation, being Regulation No. X of 1359F., was passed by the Hyderabad Government which ended the Special Tribunals created under the previous Regulation on and from 16th December, 1949 ; and consequently upon such termination pro- vided for the appointment, power and procedure of Special Judges. Section 4 of the Regulation authorised the Chief Minister to appoint, after consulting the High Court, as many Special Judges as may from time to time be required for the purpose of section 5. Section 5(1) laid down that every Special Judge shall try- (a) such offences of which the trial was immediately before the 16th December, 1949, pending before a Special Tribunal deemed to have been dissolved on that date, and are made over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the legality of the entire trial which resulted in his conviction on the ground that the procedure for trial laid down in Regulation X of 1359F became void after the 26th of January, 1960, by reason of its being in conflict with the equal protection clause embodied in article 14 of the Constitution. These grounds have been set forth in a separate petition filed by the appellant under article 32 of the Constitution and following the procedure of 1951(1)], we decided to hear arguments on the constitutional questions as, preliminary points in the appeal itself. Whether the appeal would have to be heard further or not would depend on the decision which we arrive at in the present hearing. The substantial contention put forward by Mr. Peerbhoy, who appeared in support of the appeal, is that as the procedure for trial prescribed by Regulation X of 1359F. deviated to a considerable extent from the normal procedure laid down by the general law and deprived the accused of substantial benefits to which otherwise he would have been entitled, -the Regulation became void under article 13(1) of the Constitution on and from the 26th of January, 1950 The conviction and the sentences resulti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to secure to the accused substantially the benefits of a trial under the ordinary law; and if so, whether that was actually done in the particular case. As has been stated already, the Special Judge took cognizance of this case on the 5th of January, 1950,' which was prior to the advent of the Constitution. It must be held, therefore, that the Special Judge was lawfully seized of the case, and it is not possible to say that the appointment of a Special Judge was in itself an inequality. in the eye of the law. The trial undoubtedly commenced from the 11th of February, 1950, that is to say, subsequent to the coming into force of the Constitution, and the question that requires consideration is, whether the procedure that was actually followed by the Special Judge acting under the impugned Regulation did give the accused the substance of a normal trial, or, in other words, whether he had been given a fair measure of equality in the matter of procedure ? Mr. Peerbhoy lays stress on two sets of provisions in the impugned Regulation which, according to him, differentiate the procedure prescribed in it from that laid down under the ordinary law. The first set relates to the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a Special Judge. The expression said Regulation means and refers to Regulation V of 1358 F. and section 7 of the said Regulation provides inter alia that there shall save as here in before provided, be no appeal from any order or sentence passed by a Special Tribunal, and no court shall have authority to revise such order or sentence or to transfer any case from Special Tribunal or have any jurisdiction of any kind in respect of any proceeding before a Special Tribunal and no sentence of a Special Tribunal shall be subject to or submitted for confirmation by any authority whatsoever. It will be noticed that what section 8 of the impugned Regulation does, is to incorporate, not the whole of section 7 of the previous Regulation, but only such portion of it as relates to sentences passed by a Special Judge. By sentence is meant obviously the final or definitive pronouncement of the criminal court which culminates or ends in a sentence as opposed to an order , interlocutory or otherwise, where no question of infliction' of any sentence is involved. The scope of section 7 of the earlier Regulation is thus much wider than that of present section 8 and all the limitations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case, neither been' confirmed by the High Court, nor by H.E.H. the Nizam. This, he says, is a discrimination which has vitally prejudiced his client and does afford a ground for setting aside the sentence in its entirety. It. admits of no dispute that section 8 of Regulation X of 1359F. must be held to be invalid under articles 13(1) and 14 of the Constitution to the I extent that it takes away the provision relating to confirmation of sentences as is contained in the Hyderabad Criminal Procedure Code. This, however, is a severable part of the section and being invalid, the provisions of the Hyderabad Criminal Procedure Code with regard to the confirmation of sentences must be followed. Those provisions, however, do not affect in any way the procedure for trial laid down in the Regulation. All that section 20 of the Hyderabad Criminal Procedure Code lays down is that sentences of particular description should not be executed unless assent of certain authorities to the same is obtained. The proper stage, therefore, when this, section comes into operation. is the stage of the execution of the sentence. The trial or conviction of the accused is not affected in any way by reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion with which only we are concerned at the present stage. Under section 20 of the Hyderabad Code, as mentioned above, a death sentence could not be executed unless the assent of H.E.H. the Nizam was obtained. Mr. Peerbhoy points out that this has not been done in the present case. To that the obvious reply is that consent of H.E.H. the Nizam is necessary only before the sentence is executed, and that stage apparently has, not arrived as yet. The final judgment of the High Court in this case was passed on 11th December, 1950. There was an application for leave to appeal presented by the accused immediately after that date and this application was rejected on 2nd January, 1951. On the 5th of February, 1951, an application for special leave was made to this court and the execution of the death sentence was stayed during this period under orders of the High Court itself. The special leave was granted by this court on 11th May, 1951, and the carrying out of the death sentence has been stayed since then under our orders, pending the disposal of the appeal. The question as to whether any further confirmation by H.E.H. the Nizam is necessary could only arise if and when the death s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgued, is not in compliance with the provisions of the section. We do not think there is any substance in this contention. The delegates can certainly be described by reference to his official designation and the authority may be vested in the holder of a particular office for the time being. This, we think, is quite a proper and convenient way of delegating the powers which are exercisable by the Chief Minister. In our opinion, the constitutional points raised by Mr. Peerbhoy fail. The application under article 32 of the Constitution is thus rejected and the case is directed to be posted in the usual course for being heard on its merits. GHULAM HASAN J.-I concur in the order proposed by my learned brother Mr. Justice Mukherjea that the petition under article 32 of the Constitution be dismissed, but I deem it necessary to make a few observations in view of my dissenting judgment in Qasim Razvi's case([1952] S-C-R, 710). The majority judgment delivered by Mr. Justice Mukherjea on the. 19th January, 1953, in Qasim Razvi's case ([1953] S.C.R. 589) while interpreting the decision in Lachmandas Kewalram Ahuja v. The State of Bombay(1) laid, down the principle that the mere fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not compulsory and that there is no substantial difference , between the sessions trial and the warrant procedure which was followed in the petitioner's case. These two grounds of attack there. fore disappear. So far as grounds Nos. (3) and (4) are concerned, I agree with Mr. Justice Mukherjea in his interpretation of section 8 of the Regulation and hold in concurrence with the view taken by him that the right to apply for transfer has not been taken away and that the right of revision has been denied only in so far as non- appealable sentences are concerned. The present is a case of murder and other serious offences which are undoubtedly all appealable. The only discriminatory feature of the Regulation left therefore is that no sentence of a Special Tribunal shall be subject to or submitted for confirmation by any authority whatsoever contained in section 7 (2) of Regulation V of 1358F which is made applicable,under section 8 of Regulation X of 1359 F., in other words, that the right of the Nizam to confirm the death sentence has been taken away. This is un- questionably a valuable right available to the accused who is sentenced to death by the Sessions Judge or the High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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