TMI Blog1951 (3) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... groups of persons in the following circumstances. On the 30th October, 1948, the Military Governor of Hyderabad by virtue of the powers delegated to him by H.E.H. the Nizam enacted the Special Tribunals Regulation (No. 5 of 1358 F), which was amended by several later Regu- lations issued on the 22nd May, 1949, 10th July, 1949, 23rd July and 30th October, 1949. The Regulation provided among other things that the Military Governor may constitute a Special Tribunal or Tribunals, each consisting of three members appointed by him, and that he may by general or special order direct that these Tribunals shall try any offence, whether committed before or after the commencement of the Regulation, or any class of offences. Section 8 of the Regulation empowered the Military Governor to direct, by order, that in such circumstances and under such conditions, if any, as may be specified in the direction, any power or duty conferred or imposed upon him by the Regulation may be exercised or discharged by any other authority. In accord- ance with the Regulation, certain Tribunals were constitut- ed, and one of the Tribunals--Tribunal A for Nalgonda dis- trict--proceeded to try certain cases made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sited Kasthala village, carrying firearms and dressed in khaki uniform. They got upon the terrace of one Kankayya where one Natala Rama Reddy was sleeping, caught hold of him and took him forcibly to the outskirt's of the village in spite of the protests of a number of villagers who had followed, and killed him by firing gunshots at him. Upon these facts, the trial of the petitioners proceed- ed, and they were ultimately convicted of murder and sen- tenced to death, and also convicted of certain other of- fences including the offence of carrying firearms without licences and sentenced to various terms of imprisonment. After their conviction, the petitioners appealed to the Hyderabad High Court, but their convictions and sentences were confirmed. Thereafter, they tried to obtain the leave of the High Court for appealing to the Judicial Committee of Hyderabad, but, while their applications were still pending, the Constitution of India came into force and since the Judicial Committee ceased to function under the new Consti- tution they amended their original application by asking for leave to appeal to this Court under article 134 (c) of the Constitution. This application bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges and no violation of the provisions of the Criminal Procedure Code, and secondly, on the ground that no prejudice had been caused by the so-called misjoin- der. The entire argument on behalf of the petitioners was based on the case of Subramania lyer v. King Emperor (L.R. 28 I.A. 267.). That case had somewhat peculiar features, because the ac- cused was tried for no less than 41 separate offences in contravention of the provisions of section 234 of the Crimi- nal Procedure Code, and in these circumstances it was ob- served by the Privy Council that the mischief sought to be avoided by the section having been committed, the effect of the multitude of charges before the jury had not been averted by dissecting the verdict afterwards and appropriating the finding of guilt only to such parts of the written accusation as ought to have been submitted to the jury. The case has been discussed, ex- plained and distinguished in a number of cases, and it must be read with the subsequent decisions of the Privy Council in Abdul Rahman v. King Emperor (1) and in Babu Lal v. Emperor(2) which have been understood by some of the Indian courts to have greatly modified and restricted the very bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of a death sentence (Form No. 29)the concluding sen- tence runs as follows:-- ...... you shall hand over the accused ...... to the executioner so that the latter may separate the head from the body of the said prisoner in such a way that his life may be extinct and that the execution of this order may be reported to the High Court. In the first case (Criminal Case No. 14 of 1949), the sentence was death by hanging, but in the other two cases the accused were simply sentenced to death, without any indication as to how the sentence was to be executed. It has been argued that in view of the provisions of the Hyderabad Criminal Procedure Code, the sentence of death' by hanging was not strictly appropriate. But, however that may be, we find that on the 30th October, 1949, i.e., sometime after the pronouncement of the sentences by the Special Tribunal and before they were confirmed by the High Court, the Spe- cial Tribunals Regulation was amended and a specific provi- sion was made to the following effect :-- 2-B. Notwithstanding anything contained in any law for the time being in force- (i) any sentence of death passed by a Special Tribunal shall be carrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwards any file for ratifi- cation (tashih) H.E.H. the Nizam or the Government as the case may be shall be empowered (a) to uphold the sentence of the High Court, (b) to substitute any other penalty for the same, (c) to set the prisoner at liberty, (d) to make any other appropriate order. Section 309 provides that after the manzuri is obtained in the manner already stated, the Registrar of the High Court shall send a copy of the order to the Sessions Court for carrying it into effect. It will be noticed that there are two different words used in these sections, viz., man- zuri and tashih. Manzuri literally means approval or ac- ceptance, but, in the context in which it occurs, confirma- tion would seem to convey adequately the sense underlying it. Tashih means rectification or correction, and conveys the sense that the superior authority named in section 308 may either uphold the sentence or revise it in the manner stated therein. Now, the important point to be considered is in what way the provisions to which reference has been made, have been affected by the Regulations issued by the ,Military Gover- nor. A reference to these Regulations will show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by Petitions Nos. 13 and 14 under article 32), it is contended on behalf of the peti- tioners that the whole trial in these cases was bad, because the accused were denied the right of being defended by a pleader. The petitions with which we are dealing, do not recite any facts to support this point. There are however the following allegations made in paragraphs 2 and 4 of the affidavits filed on behalf of the petitioners :-- 2. All this time I was not allowed to communicate with my relations and friends. Before I was brought before the Special Tribunal on 3-8-49, during the trial or afterwards I never saw any of my friends or relations, whether in the lock-up, the Court or in the jail due to circumstances best known to the police. * * * 4. The Court never offered to facilitate my communica- tion with my relations and friends or to adjourn the case or to appoint counsel at State expense for my defence. In fact they said they would not adjourn the case under any circum- stances. Being ignorant I did not know that I had any right to ask for any of these things. In arguing this part of the case, Mr. Pritt relied on certain American cases, especially on Powell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Case No. 17 shows that the accused in Case No. 17 were brought into court on the 3rd August, 1949, and they were informed on that day that the case would be heard on the 6th August, 1949, and that they must get ready with their defence law- yers and witnesses on that date. On the 6th August, the case was adjourned because none of the prosecution witness- es was present and the trial commenced on the 7th August, i.e., next day. In Case No. 18, an order similar to the one passed in Case No. 17 was passed on the 3rd August, but the hearing was fixed for the 7th August. The docket sheets also show that the trial was concluded in Case No. 17 on the 14th August and in Case No. 18 on the 13th August. As to the circumstances under which the accused were not represented by a lawyer, we have been referred to a counter-affidavit filed by Mr.' Hanumantha Naidu, who investigated the case, in which the following statement occurs:- 4. Regarding the means of accused Hanumanthu enquiries were made by the Tribunal and it was found that he had enough means to engage a lawyer. He owned lands and house property. But he, however, did not want to engage a lawyer and this is noted in docket sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Special Tribunal. In fact, in Appeal No. 1385 of 1338 F. proceedings dated 29-2- 58 F., show that the High Court also wanted them to be represented by lawyers for which time was allowed, but on the next hearing they stated that they do not wish to engage any lawyer on their behalf and that the High Court need not engage any lawyer for them. This shows that the accused for reasons best known to themselves did not avail of the oppor- tunity of engaging lawyers. This was also the case regarding appeals Nos. 1379 to 1384 of 1358 F., in which High Court's proceedings dated 29-2-59 F. show that the accused neither wanted to engage any lawyer on their behalf nor did they wish -the High Court should engage any one for them. In view of this, the plea that opportunity was not given to the accused to engage lawyers and therefore the trial was viti- ated in our opinion fails, It appears to us on the materials before us that we cannot altogether rule out the suggestion of the High Court that the curious attitude adopted by the accused,to whatever cause it may have been due, to some extent accounts for their not being represented by a lawyer. In the course of the arguments, our atten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge sheets Nos. 15 to 40 were made over to the same Tribunal for trial. The statement made in the judgment of the High Court is confirmed by an affidavit filed before us on behalf of the respondents. It was contended on behalf of the petitioners that a mere reference to the number of the charge sheet is too vague a description to satisfy the requirements of law and that the Civil Administrator in making over the cases should have stated the names of the accused and other necessary particulars. We think however that the reference to the charge sheet numbers was in the circumstances of the case sufficient to particularize the cases which were being made over to the Special Tribunal, especially as the charge sheets contained the names of the accused as well as other details necessary to identify the cases made over to the Tribunal. The general argument therefore necessarily fails. But, on a careful scrutiny of the record as it stands before us, we are unable to find any specific order of the Civil Administrator making over the case covered by the charge sheet No. 14 dated the 20th July, 1949, to the Tribunal. It will be recalled that there were two charge sheets numbered 14, one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be correlated to one or more of the fundamental rights conferred by Part III of the Consti- tution and can be made only for the enforcement of such rights. In the petitions before us, the petitioners have made the following relevant prayers:-- (1) that this Court may issue a writ in the nature of certiorari or a direction or order directed to respondents Nos. 1 and 3 (the Government of Hyderabad and the Special Judge, Nalgonda) calling upon them to produce the records before it and to show cause why the convictions and sen- tences of the petitioners should not be quashed; (2) that this Court may issue a writ of prohibition or a direction or order directed to respondents Nos. 1 and 2 (the Government of Hyderabad and the Superintendent of the Jail) requiring them not to execute the petitioners. At a late stage of the hearing of the case, an applica- tion was made on behalf of the petitioners to allow them to amend their petition so as to include a further prayer for a writ of habeas corpus, and this was done. The question to be decided now is whether any of these prayers can be granted. The writs of certiorari and prohibi- tion are hardly appropriate remedies in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows:-- I have had many doubts whether it was competent for us to go behind a conviction which had not been quashed upon certiorari or by any other process of law; but I have satis- fied myself that we can go behind this conviction upon affidavits. There are two authorities, in the Queen's Bench and Exchequer respectively, which seem to be conclusive. They were two cases of prosecution of workmen for neglecting their duty to their employers, and in each of them there was a summary conviction; upon the argument of a rule for a writ of habeas corpus it was allowed to be proved by affidavits that the men were, as a fact, not in that particular employ- ment, and, therefore, not subject to the jurisdiction of the justices, the ground of admission of the affidavits being that there was no evidence before the justices to justify a conviction. So, in the present case, the Court is at liber- ty to go behind the conviction and to receive affidavits, it not being a case of conflicting testimony, but one in which the magis- trate had found a previous conviction, when, in point of fact, there was none. For these reasons, I think that the prisoner is entitled to be discharged. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of this sort. Another learned Judge agreeing with the view of the Chief Justice, observed as follows:-- Ordinarily upon criminal trials, the jurisdiction of the court over the place where the offence is alleged to have been committed is assumed. And here, no doubt, the trial proceeded upon the assumption that Beulah Spa was within the jurisdiction of the Central Criminal Court. Whether it was so or not was as much a matter of fact to be proved (or admitted) as any other fact alleged in the in- dictment, in order to establish the conviction. The view expressed in this case has been taken in sever- al other cases also, and in Greene v. Secretary of State for Home Affairs [1942] A. C. 284. , Viscount Maugham seems to have thrown the weight of his authority in favour of that view. A Bench of the Calcutta High Court has also supported that view in In re Bonomally Gupta I.L.R. 44 Cal. 723.. The trend of decisions thus seems to be in favour of the view that if it should appear on the face of the return that a person is in detention in execution of a sentence on indictment on a criminal charge, that would be a sufficient answer to an application for a writ of habeas cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht about in accordance with a procedure established by law, and their present detention cannot be held to be invalid. There is also another difficulty in the way of the petitioners which may be briefly stated. From the facts already narrated, it should be clear that the judgment of the High Court affirming the convictions and sentences of the petitioners had acquired finality in the fullest sense of the term before the 26th January, 1050, and by reason of this finality, no one could question the validity of the convictions at the date when the Constitution came into force. Can then a new law or a change in the old law entitle us to reopen a transaction which has become closed and final ? It is common ground that the provisions of the Constitu- tion which are invoked here, were not intended to operate retrospectively, and therefore something which was legally good on the 25th January, 1950, cannot be held to have become bad on the 26th January, 1950. If we had no jurisdic- tion to sit in appeal over the judgment of the Hyderabad High Court, can we now reinvestigate the cases and pass orders which cannot be passed without virtually setting aside the judgments of the High Court whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us, it was brought to our notice that there were altogether six accused in Case No. 17, out of which five have been convicted and sentenced to death in Case No. 18 also. The remaining ac- cused, Kallur Gowndla Elladu, is thus the only person to be affected by the arguments relating to the trial being with- out jurisdiction, and a further point in his favour is that the fatal blow on which the charge of murder is based, is not attributed to him but to another person and no definite overt acts are ascribed to him. We have no doubt that these facts will receive due consideration at the hands of the executive authorities. As the points involved in the petitions for special leave to appeal to this Court against the order of the High Court refusing to grant relief under article 226 of the Constitution are the same as those involved in the petitions under article 32, all the six petitions are dismissed. It may however be observed that in this case we have not con- sidered it necessary to decide whether an application under article 32 is maintainable after a similar application under article 226 is dismissed by the High Court, and we reserve our opinion on that question. Petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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