Habeeb Mohamed Vs. The State of
Hyderabad [1953] INSC 28 (30 March 1953)
MUKHERJEA, B.K.
BHAGWATI, NATWARLAL H.
SASTRI, M. PATANJALI (CJ) DAS, SUDHI RANJAN
HASAN, GHULAM
CITATION: 1953 AIR 287 1953 SCR 661
CITATOR INFO :
RF 1953 SC 404 (21) RF 1954 SC 424 (18) F
1955 SC 13 (14) R 1955 SC 191 (5) F 1956 SC 269 (27) F 1957 SC 503 (16) R 1957
SC 877 (16) D 1957 SC 927 (9) F 1958 SC 86 (22) R 1958 SC 538 (11) RF 1958 SC
578 (211) R 1979 SC 478 (64,68,93) RF 1980 SC1789 (36)
ACT:
Constitution of India, 1950, Arts. 13,
14-Hyderabad Regulation X of 1359 F.-Trial by special judge under Regulation X
after 26th January, 1950-Provisions of Regulation different from Criminal
Procedure Code-Equal protection of the law Validity of trial-Tests of validity
-Effect of curtailment of committal proceedings and of right to transfer,
revision, confirmation of death sentence.
HEADNOTE:
In determining the validity or otherwise of a
pre Constitution statute on the ground of any of its provisions being repugnant
to the equal protection clause of the Constitution, two principles 86 662 have
to be borne in mind. Firstly, the clause bag no retrospective effect and even
if the law is in any sense discriminatory, it must be held to be valid for all past
transactions and for, enforcement of rights and liabilities accrued before the
coming into force of the Constitution.
Secondly, Art. 13 (1) of the Constitution
does not necessarily make the whole statute invalid even after the advent of
the Constitution. It invalidates -only those provisions which are inconsistent
with the fundamental rights guaranteed under Part III of the Constitution.
Further, the fact that trial was continued
even after 26th January, 1950, under the earlier Regulation which is in some
respects discriminatory would not necessarily render the subsequent proceedings
invalid. All that the accused could claim is that what remains of the trial
must not deviate from the normal standard in material respects, so as to amount
to a denial of the equal protection of laws within the meaning of Art. 14 of
the Constitution. For the purpose. of determining whether the accused was
deprived of such protection, the Court -has to see first of all whether after
eliminating the discriminatory provisions in the Regulation, it was still
possible 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.
On the 5th January, 1950, the case of the
accused who was charged with murder, arson, rioting and other offences which
was pending before a Special Tribunal was made over to a Special Judge in
pursuance of the provisions of the Hyderabad Regulation X of 1359 F., which
abolished the Special Tribunal Regulation of 1949. The trial commenced on the
11th February, 1950, after the new Constitution came into force and the accused
was convicted and sentenced to death. His appeal was dismissed and the sentence
of death was ultimately confirmed by the High Court. It was contended that the
entire trial was illegal inasmuch as the Regulation under which the accused was
tried contained several provisions which were in conflict with the equal
protection clause (Art. 14) of the Constitution and became void after the 26th
January 1950.
Held, (1) The provisions in the Regulation
eliminating committal proceedings and substituting the warrant procedure for
-sessions procedure in the trial of offences did not render the trial illegal
as the committal proceeding was not an indispensable preliminary to a sessions
trial under the Hyderabad Criminal Procedure Code.
(2) On a proper interpretation of s. 8 of the
Regulation the right of an accused to apply for transfer of his case was not
taken away and the right of revision was taken away only in respect of
non-appealable sentences.
(3)Section 8 of the Regulation was void in so
far as it took away the provisions relating to confirmation of sentences but as
this part of the Regulation was severable from the remaining 663 portion of the
section the provisions of the Hyderabad Criminal Procedure Code relating to
confirmation of sentences could be followed, and those provisions did not in
any way affect the procedure for trial laid down in the Regulation.
(4)The fact that the Nizam's consent had not
been obtained could not vitiate the trial as such consent is necessary only
before execution of the sentence.
Held also, that the delegation of the
authority of the Chief Minister to make over cases for trial to the Special
Judge, by a general notification authorising all civil administrators of the
districts to exercise within their respective jurisdictions the powers of the
Chief Minister under s. 5 (b) was not invalid. Section 5 (b) does not require
that the delegatee must be mentioned by name.
Qasim Bazvi's case ([1953] S.C.R. 589)
applied.
CRIMINAL, APPELLATE JURISDICTION: Criminal
Appeal No. 43 of 1952 and Petition No. 173 of 1952. Appeal by Special Leave
granted by the Supreme Court on the 11th May, 1951, from the Judgment and Order
dated the 11th December, 1950, of the High Court of Judicature at Hyderabad
(Manohar Prasad J.) in Criminal Appeal No. 598 of 1950, and Petition under
Article 32 of the Constitution.
A. A. Peerbhoy (J. B. Dadachanji, with him)
for the appellant.
V. Rajaram Iyer, Advocate-General of
Hyderabad (R. Ganapathy Iyer, with him) for the respondent. 1953. March 30. The
Judgment Of PATANJALI SASTRI C.J., MUKHERJEA, S. R. DAS, and BHAGWATI JJ. was
delivered by MUKHERJEA J. GHULAM HASAN J delivered a separate but concurring judgment.
MUKHERJEA J.-The appellant before us, who in
the year 1947 was a Revenue Officer in the District of Warangal within the
State of Hyderabad, was brought to trial before the Special Judge of Warangal
appointed, under Regulation X of 1359F. on charges of murder, attempt to
murder, arson, rioting and other offences punishable under various sections of
the Hyderabad Penal Code. The offences were alleged to have been committed on
or about the 9th of December, 1947, and the First Information Report 664 was
lodged, 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 provided 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 to him for trial
by the Chief Minister or by a person authorised by the Chief Minister in this
behalf; and (b) such offences as are after the commencement of this Regulation
made over to him for trial by the Chief Minister or by a person authorised by
the Chief Minister in this behalf.
On 6th January, 1950, the case against the
appellant was made over to Dr. Lakshman Rao, a Special Judge of Warangal, who
was appointed under the above Regulation under an order of the Civil
Administrator, Warangal, to whom authority under section 5 of the Regulation
was delegated by the Chief Minister and on the same date the Special Judge took
cognizance of the offences. The trial commenced on and from 11th February,
1950, and altogether 21 witnesses were examined for the prosecution and one for
665 the defence. The Special, Judge, by his judgment dated the 8th of May,
1950, convicted the appellant of all the offences with which he was charged and
sentenced him to death under section 243 of the Hyderabad Penal Code
(corresponding to section 302 of the Indian Penal Code) and to various terms of
imprisonment under sections 248, 368, 282 and 124 of the Code of Hyderabad
(which correspond respectively to sections 307, 436,342 and 148 of the Indian
Code). Against this judgment the appellant took an appeal to the High Court of
Hyderabad and the appeal was first heard by a Division Bench consisting of
Shripat Rao and S. Ali Khan JJ. On 29th September, 1950, the learned Judges
delivered differing judgments, Shripat Rao J. taking the view that the appeal
should be dismissed, while the other learned Judge expressed the opinion that
the appeal ought to be allowed and the accused acquitted. The case was then
referred to Mr. Justice Manohar Prasad, as a third Judge and by his judgment
dated the 11th of December, 1960, the learned Judge agreed with the opinion of
Shripat Rao J. and dismissed the appeal upholding the conviction and sentences
passed by the Special Judge. The appellant then presented an application for
leave to appeal to this court. That application was rejected by the High Court
of Hyderabad, but special leave to appeal was granted by this court on 11th
May, 1951, and it is on the strength of this special leave that the appeal has
come before us.
The present hearing of the appeal is confined
to certain constitutional points which have been raised by the appellant
attacking 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 adopted in the
case of Qasim Razvi [Case No. 276 666 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 resulting from the procedure
thus adopted must, therefore, be held illegal and inoperative and the judgment
of the Special Judge as well as of the High Court should be quashed. The other
point raised by the learned counsel is that the making over of the case of the
appellant to the Special Judge was illegal as the authority to make over such
cases was not properly delegated by the Chief Minister to the Civil
Administrator in the manner contemplated by section 5 of the Regulation.
As regards the first point, it is to be noted
at the outset that the impugned Regulation was a pre-Constitution statute. In
determining the validity or otherwise of such legislation on the ground of any
of its provisions being repugnant to the equal protection clause, two
principles would have to be borne in mind, which were enunciated by the
majority of this court in the case of Qasim Razvi v. The State of Hyderabad
(1), decided on the 19th of January, 1953, where the earlier decision in
Lachman Das Kewalram v. The State of Bombay(1) was discussed and explained.
Firstly, the Constitution has no
retrospective effect and even if the law is in any sense discriminatory, it
must be held to be valid for all past transactions and for enforcement of
rights and liabilities accrued before the (1) [1953] S.C.R. 589. (2) [1952]
S.C.R. 710.
667 coming into force of the Constitution.
Secondly, article 13(1) of the Constitution does not necessarily make the whole
statute invalid even after the advent of the Constitution. It invalidates only
those provisions which are inconsistent with the fundamental rights guaranteed
under Part III of the Constitution. The statute becomes void only to the extent
of such inconsistency but otherwise remains valid and operative. As was said in
Qasim Razvi's case(1) the fact that " trial was continued even after 26th
January, 1950, under the same Regulation would not necessarily render the
subsequent proceedings invalid. All that the accused could claim is that what
remained of the trial must not deviate from the normal standard in material
respects, so as to amount to a denial of the equal protection of laws within
the meaning of article 14 of the Constitution. For the purpose of determining
whether the accused was deprived of such protection, we have to see first of
all whether after eliminating the discriminatory provisions in the Regulation,
it was still possible 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 ? (1) [1953] S.C.R. 589.
668 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 elimination of the committal proceeding and the substitution
of warrant procedure for the sessions procedure in the trial of offences. The
other set-of provisions consists of those which deny to the accused the rights
of revision and transfer and withdraw from him the safeguards relating to
confirmation of sentences. The first branch of the contention, in our opinion,
is unsustainable having regard to our decision in Qasim Razvi's case(1). It was
pointed out in that case that under the Hyderabad Criminal Procedure Code the
committal proceeding is not an indispensable preliminary to a sessions trial.
Under section 267A of the Hyderabad Criminal Procedure Code, the Magistrate is
quite competent, either without recording any evidence or after recording only
a portion of the evidence, to commit an accused for trial by the sessions court
if, in his opinion, there are sufficient grounds for such committal. If the
committal proceeding is left out of account as not being compulsory, and its absence
did not operate to take away the jurisdiction of the Special Judge to take
cognizance of the case before the Constitution, the difference between a
warrant procedure prescribed by the impugned Regulation to be followed by the
Special Judge after such cognizance was taken and the sessions procedure at
that stage applicable under the general law is not at all substantial, and the
minor differences would not bring the case within the mischief of article 14 of
the Constitution. This question having been already decided in Qasim Razvi's
case(1) it is not open for further arguments in the present one.
With regard to the other set of provisions,
the contention of Mr. Peerbhoy is based entirely upon the language of section 8
of the Regulation. In our opinion, the interpretation which the learned counsel
seeks to put upon the section is not quite correct, (1) [1953] S.C.R. 589.
669 and it seems to us that not only the
right of an accused to apply for transfer of his case has not been taken away
by this section, but the right of revision also has been left unaffected except
to a small extent.
Section 8 of the Regulation X of 1359 F. is
in these terms:"All the provisions of section 7 of the said Regulation
shall have effect in relation to sentences passed by a Special Judge as if
every reference in the said Regulation to a Special Tribunal included a
reference to 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 of the earlier statute have not been repeated in the
present one. The result, therefore, is that revision against any order which
has hot ended in a sentence is not interdicted by the present Regulation, nor
has the right of applying for transfer, which has no reference to a sentence,
been touched at all. These rights are expressly preserved by section 10 of the
present 87 670 Regulation, which makes the Code of Criminal 'Procedure
applicable in all matters except where the Regulation has provided otherwise.
Reading section 8 of the present Regulation with section 7 of the earlier one,
it may be held that what has been taken away from an accused is, in the first
place, the right of revision against non-appealable sentences, and in the second
place, -the provisions relating -to confirmation of sentences. The first one is
immaterial for our present purpose, as no question of any non-appealable
sentence arises in the case before us. The second is undoubtedly a
discriminatory feature and naturally Mr. Peerbhoy has laid considerable stress
upon it.
Section 20 of the Hyderabad Criminal
Procedure Code lays down the rule relating to confirmation of sentences in the
following manner:
Every Sessions Judge may pass any sentence
authorised by law, but such sentence shall not be carried into effect until (1)
in the case of a sentence of 10 years 'imprisonment or more, the appropriate
Bench of the High Court;
(2) in the case of life imprisonment, the
Government; and (3) in the case of death sentence, H.E.H. the Nizam, shall have
assented thereto. Section 302 provides that when a sessions court as passe a
sentence of death 'or of life imprisonment or of imprisonment exceeding 10
years, the file of the case shall be forwarded to the High Court and the
execution of the sentence stayed until manjuri is given in accordance with
section 20. Section 307 further provides that when the High Court has affirmed
a death sentence or sentence of life imprisonment, then its opinion together
with the file of the case shall be forwarded' for ratification to the
Government within one week and the sentence shall not be carried into effect
until after the assent thereon of H.E.H. the Nizam in the case of death
sentences and of the Government in the case of 671 sentences of life
imprisonment. Mr. Peerbhoy's complaint is that the sentence imposed upon his
client has, in the present 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 reason of the withdrawal of the provision relating to
confirmation of sentences in the Regulation. The withdrawal is certainly
inoperative and in spite of such withdrawal the accused can insist on the
rights provided 'for under the general law.
In the case before us the records show that
no reference was made by the Special Judge after he passed the sentence of
death upon the appellant in the manner contemplated by section 307 of the
Hyderabad Code, which corresponds to section 374 of the Indian Criminal
Procedure Code. There was, however, an appeal preferred by the accused and the
entire file of the case came up before the High Court in that connection. As
said already, the Division Bench, which heard the appeal, was divided in its 672
opinion and consequently no question of confirmation of the death sentence
could or did arise before that Bench. The question was, however, specifically
raised towards the conclusion of the arguments before the third Judge, to whom
it was referred; and it is significant to note that some time before that a
Full Bench of the Hyderabad High Court had decided that the provision in the
Regulation relating to confirmation of sentences was void and inoperative and
consequently in spite of the said provision the sentences were required to be
confirmed in accordance with the general law. The question was then raised
whether the confirmation was to be made by the third Judge alone or it had to
be done by the two Judges who agreed in dismissing the appeal. Mr. Justice
Manohar Prasad decided that as the whole case was referred to him, he alone was
competent to make the order for confirmation of the death sentence and he did
actually confirm it by writing out in his own hand the order passing the
sentence of death according to the provision laid down in the Hyderabad Code.
Mr. Peerbhoy contends that this confirmation was illegal and altogether invalid
as not being made in conformity with the provisions of the Hyderabad Code. We
do not want to express any opinion on this point at the present moment. There
appears on the face of the record an order for confirmation of the death
sentence made by a Judge of the High Court. If this order is not in conformity
with the provisions of law, the question may be raised before this court when
the appeal comes up for hearing I on its merits. This is, however, not a matter
which affects the constitutional question 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 673 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 sentence passed by the courts below is upheld
by this court. Mr. Peerbhoy points out that since the 1st April, 1951, the
Indian Criminal Procedure Code has been introduced in the State of Hyderabad
and there is no power in the Nizam now to confirm a sentence of death, although
such confirmation was necessary at the time when the sentence-was pronounced
both by the Special Judge as well as by the High Court on appeal. We do not
think that it is at all necessary for us at the present stage to discuss the
effect of this change of law. If the assent of the Nizam to the execution of a
death sentence is a matter of procedure, it may be argued that the procedural
law which obtains at the present moment is the proper law to be applied. On the
other hand, if it was a question of substantive right, it may be open to
contention that the law which governed the parties at the date when the trial
began is still applicable. We are, however, not called upon to express any opinion
on this point and we deliberately decline to do so. We also do not express any
opinion as to whether the rights which could be exercised by the Nizam under
section 20 of the Hyderabad Criminal Procedure Code were appurtenant to his
prerogative as a sovereign or were statutory rights exercisable by the person
designated in the statute. These matters 674 may be considered when the appeal
comes up for final hearing on the merits. Our conclusion is that there has not
been any discrimination in matters of procedure in this case which can be said
to, have affected f the trial prejudicially against the accused and the accused
is not entitled to 'have his conviction and sentence set aside on that ground.
The other question raised by the appellant
relates to delegation of the authority by the Chief Minister to make over cases
for trial by the Special Judge. Mr. Peerbhoy lays 'stress on section 5 (b) of
the Regulation which speaks of offences being " made over to the Special
Judge for trial by the Chief Minister or by a person authorised by the chief
Minister in this behalf ", and it is argued that this section requires
that the delegatee is to be mentioned by name. What the Chief Minister has done
is that he issued a notification authorising all civil administrators of the
districts to exercise within their respective jurisdictions the powers of the
Chief Minister under the said section.
This, it is argued, 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(1).
The majority judgment delivered by Mr. Justice Mukherjea on the. 19th January,
1953, in (1) [1952] S-C-R, 710.
675 Qasim Razvi's case(1) while interpreting
the decision in Lachmandas Kewalram Ahuja v. The State of Bombay(1) laid, down
the principle that the mere fact that some of the provisions of the impugned
Regulation are discriminatory on the face of it, is not sufficient to render
the trial and the conviction void under article 14, read with article 13 (1) of
the Constitution and that in such cases where the trial is continued after the
26th January, 1950, under the impugned Regulation, it is necessary to see
whether the procedure followed after the material date was such as deprived the
accused of the equal protection of laws within the meaning of article 14 of the
Constitution and that if the accused under such procedure received
substantially the benefits of the trial under the ordinary law, the trial and
conviction cannot be held as void and illegal. I take it that the majority
decision is binding and that the principle enunciated by the majority is no
longer open to question.
With this preliminary observation I must
proceed to express my concurrence generally with the view taken by my learned
brother Mr. Justice Mukherjea in the present case.
It is to be borne in mind that Regulation V
of 1358 F. under which the Tribunal was constituted to try Qasim Razvi's case
was in material respects different from Regulation X of 1359 F. under which the
Special Judge tried the petitioner Habeeb Mohammad. I agree with my learned
brother in holding that there was no flaw in making over the case of the
petitioner for trial to the Special Judge under section 5 (b) of the
Regulation. The Special Judge took cognizance of the case before the
Constitution came into force, but the entire evidence of the prosecution,
unlike Qasim Razvi's case, was recorded after the 26th of January, 1950. The
Regulation in question was challenged before us as being void under article 14
read with article 13(1) of the Constitution on the following grounds:(1) [1953]
S.C.R. 589. (2) [1933] S.C.R. 589.
676 (1) that the Regulation excludes the
committal proceedings, (2) that the procedure of the sessions trial is replaced
by the warrant procedure, (3) that there is no right of transfer, (4) that
there is no revision, (5) that the right of confirmation by the Nizam in case
of sentences of death has been negatived.
As regards the first two grounds, Mr. Justice
Mukherjea, following the view taken in Qasim Razvi's case(1) has held that
under section 267A 'of the Hyderabad Criminal Procedure Code committal
proceedings are 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 unquestionably
a valuable right available to the accused who is sentenced to death by the Sessions
Judge or the High Court as the case may be. We were told by Mr. Peerbhoy,
counsel for the petitioner, that no death sentence passed by the' courts in Hyderabad during the last 50 years or go has ever been carried into effect and that the
Nizam has always exercised (1) [1953] S.C.R. 589, 677 this right in favour of
commuting the death sentence to.a sentence for life. The denial of this right
in the Regulation is discriminatory on the face of it and deprives the
petitioner of a valuable right. I concede, however, that this objectionable
feature of the Regulation is severable from the other parts. I further agree
that the stage for the exercise of that right has not yet arisen, for the
appeal of the petitioner is still pending in this court.
If the appeal is allowed, or the sentence is
reduced, no question of the confirmation of the death sentence by the Nizam
will arise. If, however, the appeal is dismissed, it will be open to the
petitioner to claim this right. It would not be desirable at this stage to
express an opinion whether this right is a substantive right which vests in the
petitioner or one relating to a more matter of procedure, as that question will
have to be considered and decided when the appropriate stage arrives.
I would, therefore, agree in dismissing the
petition.
Petition dismissed.
Agent for the petitioner: Bajinder Narain.
Agent for the respondent : G. H.
Rajadhyaksha.
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