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PETITIONER: JANARDAN REDDY AND OTHERS

       Vs.

RESPONDENT: THE STATE OF HYDERABAD AND OTHERS.KULLURI YELLADU AND OTHERS

DATE OF JUDGMENT: 16/03/1951

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA

CITATION:  1951 AIR  217            1951 SCR  344  CITATOR INFO :  R          1955 SC 633  (25)  R          1957 SC 540  (53)  E&D        1958 SC  86  (8,10,16)  R          1960 SC1186  (10)  RF         1961 SC1457  (13)  R          1962 SC1737  (14)  RF         1963 SC1120  (5)  D          1968 SC1313  (5)  RF         1979 SC 478  (63)  RF         1983 SC 624  (8)  R          1990 SC 485  (3)

ACT:     Constitution of India, Art. 32--Special Tribunals  Regu- lation (Hyderabad), ss. 2, 7__Conviction and death sentence; by Special Tribunal--Confirmation by High Court before  26th January, 1950 Application under Art. 32 for writs of  prohi- bition,           certiorari           and            habeas corpus--Maintainability--Detention   under  conviction    by criminal court--Application for habeas  corpus--Jurisdiction of  convicting  court, whether can be gone  into--Effect  of confirmation   of   conviction  on   appeal--Misjoinder   of charges--Omission to provide counsel for  accused---Validity of conviction--Interference  under Art. 32.

HEADNOTE:    There is a basic difference between want of jurisdiction and  an illegal or irregular exercise of  jurisdiction,  and mere noncompliance with rules of procedure (e.g., misjoinder of  charges)  cannot be made a ground for  granting  a  writ under Art. 32 of the Constitution. The defect, if any,  can, according to the procedure established by law, be  corrected only by a court of appeal or revision, and if the  appellate court  which was competent to deal with the matter has  con- sidered the matter and pronounced its judgment, it cannot be reopened in a proceeding under Art. 32 of the Constitution.     Where,  some time after the pronouncement of a  sentence of  death by hanging by a Special Tribunal of the  Hyderabad State  and pending confirmation of the sentence by the  High

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Court  of Hyderabad, a Regulation was passed to  the  effect that  notwithstanding anything contained in any law for  the time  being in force any sentence of death passed by a  Spe- cial  Tribunal shall. be carried into execution by  hanging: Held, that the Regulation 345 must  be taken to have retrospective effect, as the mode  of execution  of a sentence cannot be regarded as a  matter  of substantive law, and the sentence for hanging cannot be held to be illegal even assuming that under the law which was  in force  in Hyderabad at the time the sentence was  passed  by the  Special Tribunal, sentences to death could  be  carried out  only by decapitation. In any event, as the  High  Court which  upheld  the conviction had the power  to  impose  the sentence of death by hanging under the Regulation, no relief could be granted to the accused under Art. 32 of the Consti- tution.     Section 7(2) of the Special Tribunals Regulation  passed by  the  Military Governor of Hyderabad  covered  all  those cases  where manzuri and tashih were contemplated under  the old law and sentences of death passed by a Special  Tribunal could  therefore be executed without the assent or  approval of H.E.H. the Nizam.     The result of s. 271 of the Hyderabad Criminal Procedure Code,  (which  corresponds to s.340 of the  Indian  Criminal Procedure  Code)  read  along with the  Rules  and  Circular Orders  issued by the Hyderabad High Court is: (i)  that  it cannot be laid’ down as a rule of law that in every  capital sentence where the accused is unrepresented the trial should be  held to be vitiated;and (ii) that a court of  appeal  or revision  is not powerless to interfere if it is found  that the  accused was so handicapped for want of legal  aid  that the proceeding against him may be said to amount to negation of a fair trial.     The  writs  referred  to in Art. 32  must  obviously  be correlated  to  one or more of the fundamental  rights  con- ferred by Part III of the Constitution and can be made  only for the enforcement of such rights.     The petitioners who were convicted by a Special Tribunal of  Hyderabad of murder and other offences and sentenced  to death  by  hanging and whose convictions and  sentences  had been  confirmed by the Hyderabad High Court before the  26th January, 1950, applied to the Supreme Court under Art. 32 of the  new Constitution for the following reliefs: (i) a  writ in  the nature of certiorari calling upon the Government  of Hyderabad  and the Special Judge to produce the  records  of the  case and show cause why the convictions  and  sentences should  not  be  quashed, (ii) for a  writ   of  prohibition directing  the Government and  Special Judge not to  execute the petitioners, and (ill) for a writ of habeas corpus:     Held,  (i)that the writs of certiorari  and  prohibition could  not  be granted as at the date when  the  High  Court dealt  with the case and confirmed the conviction  and  sen- tences  of  the petitioners, the Supreme Court  was  not  in existence  and the Hyderabad Court could not by any  stretch of reasoning be said to have been subordinate to the Supreme Court: 45 346     (ii)  the writ of habeas  corpus could not   be  granted inasmuch  as  a return that the person is  in  detention  in execution  of a sentence on indictment on a criminal  charge is a sufficient answer to an application for such a writ;     (iii)  assuming  that it is open even in such  cases  to investigate  the jurisdiction of the court  which  convicted

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the  petitioners,  the mere fact that the  trial  court  had acted  without jurisdiction would not justify  interference, if the conviction and sentence had been upheld on appeal  by a court of competent jurisdiction; for, the appellate  court in a case which properly comes before it on appeal, is fully competent  to decide whether the trial was with  or  without jurisdiction  and it has jurisdiction to decide  the  matter rightly as well as wrongly; and as the High Court at Hydera- bad  had  jurisdiction to hear and decide  the  appeal,  the detention  of  the petitioners could not be held to  be  in- valid;     (iv)  as the judgment of the High Court  was  pronounced before the 26th January, 1950, and it had acquired a finali- ty  in the fullest sense of the term before that  date,  the Supreme  Court had no power to re-open that  judgment  under the provisions of the new Constitution;     (v)  the fact that the petitioners had lost their  right of appeal to the Judicial Committee of Hyderabad by a sudden change  in the law and by the delay on the part of the  High Court  in  the disposal of their application  for  leave  to appeal to the said Committee was a matter for the  executive authorities to consider; it could not widen the scope of the existing remedial laws beyond legitimate bounds.     Quaere:  Whether an application under Art. 32  is  main- tainable after a similar application under Art. 226 has been dismissed by the High Court.     In re Authers [(1889) 22 Q.B.D. 345], In re Bailey (3 E. JUDGMENT: re  Newton  (139 E.R. 692), In re Bonomally Gupta  (44  Cal. 723), Greene v. Secretary of State for Home Affairs  ([1942] A.C. 284), Ex parte Lees [(1868) E.B. & E. 828, R. v.  Stud- dis  [(1801)1 East 306], Carus Wilson’s case [(1845) 7  Q.B. 984] referred to.

&     ORIGINAL JURISDICTION :These were two sets of  petitions by three groups of persons, one under Art. 32 of the Consti- tution (Petitions Nos. 12, 13 and 14, of 1951) and the other under Art. 136(1) of the Constitution (Criminal  Miscellane- ous  Petitions Nos. 14, 15 and 16) against the judgment  and order dated 19th December, 1950, of the High Court of  Judi- cature  at  Hyderabad  (M.  Khaliluzzaman  Siddiqi  J.)   in Miscel-. laneous Petitions Nos. 2297, 2298 and 2299 of 1950. The facts are set out in detail in the judgment. 347     D.N. Pritt (Danial Latifi and Gopal Singh, with him) for the petitioners.     M.C.  Setalvad, Attorney-General for India, and  Rajaram Aiyar,  Advocate-General  of Hyderabad, (G .N.  Joshi,  with them) for the respondents.     1951. March 16. The judgment of the Court was  delivered by     FAZL  ALI  J.--These are six petitions which  have  been presented to this Court on behalf of three 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

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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 over to it by the Civil  Administrator of Nalgonda under the powers vested  in him by the Military Governor. Among the cases tried by  this Tribunal were also three cases in which the petitioners were concerned, these being registered as Criminal Cases Nos. 14, 17 and 18 of 1949.  These  cases were based on three  charge sheets submitted by one Mr. Hanumantha 348 Naidu, a senior police officer of Nalgonda district, one  of which  was No. 14 dated the 7th April, 1949, and’ the  other two were Nos. 14 and 15 dated the 20th July, 1949. In  these charge  sheets,  the accused were generally referred  to  as "Communists wedded to the policy of overthrowing the Govern- ment by violence and setting up in its place Communist Raj," and the specific cases made out against them were briefly as follows.  In the first case (Criminal Case No. 14 of  1949), the  chargesheet stated that the accused went to  a  certain village  in Nalgonda district on 21st September,   1948  "in khaki   uniform and  holding  unnotified  firearms,"  caught hold of four persons as they had not paid the full subscrip- tion demanded of them, decoyed them to the outskirts of  the village and then "killed them by cutting their throats."  In the  second case (Criminal Case No. 17), it was stated  that on  the 6th April, 1949, at about 9 A.M. two of the  accused came to a certain village and began to fire their guns,  but when  "the public" approached them asking them to  surrender they  ran away and joined the other persons accused  in  the case.  Later on, all the accused "marched on the  villagers" and  opened  fire at them indiscriminately with  the  result that one of them received an injury in his right high  which subsequently  proved  fatal, and another  received  a  minor injury  on his left hand. The version given at the trial  in this  case  was slightly different and shows  that  the  two accused who had visited the village were chased by 50 or 100 persons  to a place called Madireddychelka where  the  other accused  joined them, and after parleying with the  chasers, accused  No.  4 fired and hit one of the  villagers  on  the thigh and the latter died.  Thereupon the accused chased the remaining  villagers,   firing their guns, and  one  of  the bullets grazed the middle finger of one of the villagers and caused  a slight injury to it. In the third  case  (Criminal Case  No.  18), the facts were stated to be  these:--On  the 15th  May, at about midnight, the accused  visited  Kasthala village,  carrying  firearms and dressed in  khaki  uniform. They  got upon the terrace of one Kankayya where one  Natala Rama Reddy was 349 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-

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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 being  unsuccessful,  they applied to this Court for special leave to appeal, but  that application was dismissed on the ground that this Court  had no  jurisdiction  under article 136 of the  Constitution  to hear  an  appeal from  a judgment  delivered  by  the   High Court  at  Hyderabad  before the 26th January,  1950,  since that  Court   was  not   within   the  territory of  India.. The  petitioners  then made applications to the  High  Court under  article 226 of the Constitution, and  those  applica- tions  having  been rejected, they filed two sets  of  peti- tions  in this Court, one under article 32 of the  Constitu- tion, and the other for special leave to appeal against  the order of the High Court refusing to grant them relief  under article 226.     The main points urged by Mr. Pritt, who appeared  before us on behalf of the petitioners, were as follows:-     (1) The trial of the petitioners by the  Special  Tribu- nal was without jurisdiction.     (2) In Criminal Cases Nos. 17 and 18 of 1949, there  was no fair trial, inasmuch as the persons accused in * Vide [1950] S.C.R.  940. 350 those  eases were not afforded any opportunity  to  instruct counsel  and  they had remained  undefended  throughout  the trial.     (3)  The  trials in question were illegal by  reason  of misjoinder of charges.     (4)  At  the time of the passing of  the  sentence,  the sentence of death could be lawfully executed by decapitation only and not by hanging, and hence the sentence of death  by hanging passed upon the accused in the first case was  ille- gal.     (5) The sentence of death could not be executed  without the  assent or the lapproval of H.E.H. the Nizam  which  had not yet been obtained.     The  last  three points seem to us to have  very  little substance and may be shortly disposed of.     It  appears that in all the three cases,  besides  being charged   with  murder,  rioting and certain  other  cognate offences,  which  on the face of the record appear  to  have been  committed in the course of the same  transaction,  the petitioners  were  also  charged  with  carrying  unlicensed firearms. It was contended on behalf of the petitioners that the  offence  of  carrying unlicensed  firearms  was  wholly unconnected with the other offences and could not be said to have  been committed in the course of the same  transaction. It seems that this very point was raised in the High  Court, but  it was negatived, firstly on the ground that there  was no misjoinder of charges 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  (1). That  case had somewhat peculiar features, because  the  ac-

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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 (1) L.R. 28 I.A. 267. 351 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 broad rule which at one time there was a tendency to  deduce from certain general observations made by the Privy Council. It may be that on a more appropriate occasion we may have to review  the  case law on the subject and.lay down  the  true scope of the pronouncements made by the Privy Council in the cases  referred  to above and the effect which  in  law  the misjoinder  of charges would have upon the trial.  But,  for the  purpose of the present case, it is sufficient to  point out that even if we assume that there was some defect in the procedure followed at the trial, it does not follow that the trial  court acted without jurisdiction.  There is  a  basic difference  between want of jurisdiction and an  illegal  or irregular  exercise of jurisdiction, and our  attention  has not been drawn to any authority in which mere non-compliance with  the  rules  of procedure has been made  a  ground  for granting  one of the writs prayed for.  In either case,  the defect,  if any, can according to the procedure  established by  law be corrected only by a court of appeal or  revision. Here,  the appellate court which was competent to deal  with the  matter has pronounced its  judgment  against the  peti- tioners,  and the matter having been finally decided is  not one  to be reopened in a proceeding under article 32 of  the Constitution.     The fourth point raised on behalf of the petitioners  is not only a highly technical one but is also entirely  devoid of  merit.   A reference to the Hyderabad Penal  Code  shows that in section 243, which deals with the (1) L.R. 54, I.A. 96.            (2) A.I.R. 1930 P. c. 130. 352 offence  of murder, all that is stated is that death is  one of  the  penakties.   That section does not  state  how  the sentence  of death is to be executed.  When we turn  to  the Hyderabad Criminal Procedure Code, we find that section 311, which is the relevant section, runs as  follows:-     " When an order of death sentence or any other  sentence has  been  submitted  to the  High  Court  for  ratification (tashih)  the  Sessions Court shall, on receiving the  order of  ratification or other order of the High  Court  thereon, cause  such  order to be carried into effect  by  issuing  a warrant  or taking such other steps as may be  necessary  or expedient ."     In  this section also, no mention is made as to how  the sentence  of death is to be executed, but in Schedule IV  of the  Code, in the form prescribed for the warrant of  execu- tion  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

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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 carried into execution by causing 353 the  person sentenced to be hanged by the neck until  he  is dead,     (ii)  warrants of commitments under sentence  of  death. warrants  of execution of a sentence of death and any  other instruments issued by a  Special Tribunal  .......  shall be issued in such form as the Special Tribunal thinks fit."     Apparently.  these provisions applied to  all  sentences which had remained unexecuted or were to be executed at  the date  of the amending Regulation, and therefore they  should govern  the  case of the petitioners also. In  our  opinion, they must be taken to have retrospective effect, because the mode  of the execution of a sentence can hardly be  regarded as  a  matter of substantive law or  something  which  would affect  any   substantive rights.  In any  event,  the  High Court, which upheld the conviction, had the power to inflict the  sentence of death by hanging under the amended  Regula- tion, and therefore this point does not properly arise in  a matter  involving  the  question whether  any  relief  under article 32 of the Constitution should be granted.     The fifth point also does not appear to us to have  much merit. The determination of this point is said to rest  upon the  proper interpretation of the word "manzuri,"  which  is used in sections 20,302, 307 and 339 of the Hyderabad Crimi- nal   Procedure  Code. Section 20, which is the most  impor- tant section, runs as follows :--     "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 ten years  imprisonment or more the appropriate Bench of the High Court, 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 (given manzuri)," 354     Section 302 (1) states that in certain cases,  execution of sentence shall be stayed until manzuri in accordance with section  20  is given. Section 307 deals  with  cases  where the  High  Court affirms a death sentence or a  sentence  of life imprisonment and provides that after such confirmation, the opinion of the High Court together with the file Of  the case  shall  be  forwarded  for  tashih  (rectification   or ratification)  to  the Government within one  week  and  the sentence  shall not be carried into effect until manzuri  is obtained  as  provided in section 20. Section  308  runs  as

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follows:-     "When the High Court thus forwards 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  that  in section  7 of the original Regulation, the  following  words have been substituted:-     "7.  (2)  .........  no sentence of a  Special  Tribunal shall  be subject to confirmation (tausiq is the  vernacular expression used here.) 355     (3)  The  Military Governor may on such  conditions,  if any, as he thinks fit, suspend, remit, reduce, or alter  the nature of, any sentence passed by a Special Tribunal, or any sentence  substituted by the High Court on an  appeal  under sub-section (2) for any sentence so passed."     It  was contended by the learned  Attorney-General  that these  provisions  cover all those cases where  manzuri  and tashih  were  contemplated under the old law. On  the  other hand,  it  was contended on behalf of the  petitioners  that manzuri  was  a  peculiarly apt expression  when  used  with reference  to a ruler, and the primary sense conveyed by  it was that no sentence was a good sentence without the approv- al or sanction of the monarch.  A mere reference to  section 20  will show that the word manzuri has not been  used  with reference  only  to H.E.H. the Nizam, but it has  also  been used  with reference to the High Court and  the  Government, and  therefore it is difficult to hold that the  word  bears the special meaning attributed to it on behalf of the  peti- tioners.   In  the context in which it is used,  it  has  no other  meaning  than the act of confirmation,  and  the  new word,  tausiq,  which has been used in the  Regulation,  and which  literally means confirmation, appears to  convey  the same  sense  as the word manzuri. It was also  contended  on behalf of the petitioners that the use of the word ’  hakim’ in  connection  with  confirmation in one  of  the  amending Regulations could not have been intended to cover  confirma- tion by H.E.H. the Nizam.  But since ’hakim’ literally means a ruler or an authority, we are not inclined to attach  much importance  to  the distinction sought to be  drawn  between hakim and ruler.  It is quite plain that one of the  objects of  the Regulations was to simplify procedure  and  expedite trials,  and  the interpretation which is suggested  by  the learned  Attorney-General  seems to be  in  conformity  with those objects.     Having  dealt  with  these minor points,  we  shall  now

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advert to the first and second points, which appear to us to be the only serious points urged in this case. In urging the second point, which arises only in Criminal 356 Cases  Nos. 17 and 18 (covered 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 v.  Alabama(1), in  which the Supreme Court of America is reported  to  have observed as follows :-     "In  a  capital case where the defendant  is  unable  to employ  counsel, and is incapable of adequately  making  his own  defence because of ignorance, feeblemindedness,  illit- eracy  or  the  like, it is the duty of  the  Court  whether requested or not, to assign a counsel for him as a necessary requisite of due process of law."     That  the assignment of a counsel in  the  circumstances mentioned  in  the passage is highly  desirable,  cannot  be disputed.   But the question raised before us is whether  in law non-assignment of a counsel would vitiate the triad.  It seems  to us that in dealing with the point, we cannot  rest our judgment wholly on (1) 287 U.S. 45. 357 American precedents, which are based on the doctrine of  due process of law, which is peculiar to the American  Constitu- tion, and also on certain specific provisions bearing on the right  of  representation  in a  criminal  proceeding.   The provision which is material to the contention raised  before us  is section 271 of the Hyderabad Criminal Procedure  Code which  corresponds  to section 340 of  the  Indian  Criminal Procedure Code, which runs as follows :--     "Any  person  accused of an offence  before  a  criminal court,  or  against whom proceedings  are  instituted  under this  Code in any such court, may of right be defended by  a pleader."     This provision must undoubtedly  be  construed liberally in  favour  of the accused and must be read along  with  the rules made by the High Courts and the circular orders issued by  them enjoining that where in capital cases  the  accused has no means to defend himself, a counsel should be provided to  defend him. The proper view seems to us to be: (1)  that it cannot be laid down as a rule of law that in every  capi- tal  case  where  the accused is  unrepresented,  the  trial should  be  held  to be vitiated; and (2) that  a  court  of appeal  or revision is not powerless to interfere, if it  is

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found that the accused was so handicapped for want of  legal aid  that the proceedings against him may be said to  amount to negation of a fair trial.     Passing  now  to the facts of the cases  before  us,  it appears  that in Criminal Case No. 14, the  accused  persons concerned were defended by a pleader, but those concerned in Cases  Nos. 17 and 18 were not presented at all by any  law- yer.   Further a reference to the docket sheets in 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 358 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 of Criminal Case No. 14/49 by the President of the Tribunal.  Facilities  were given to the accused to engage lawyers for their defence. In cases in which the accused had no means to engage pleaders for  their defence  and  applied  to the Tribunal  for  appointment  of pleaders  at Government cost, this was done. In some  cases, the accused declined to accept the pleaders appointed by the Tribunal  for their defence. Some engaged pleaders of  their choice at their cost.     5.  The  allegations  in para 5 of  the  affidavit  that lawyers were afraid to come forward and defend the  accused, that  they were afraid of incurring the displeasure  of  the police  and the Administration and that they were  unwilling to  appear before the Special Tribunal, are not true.   Law- yers  were willing to appear and defend the accused if  they were  engaged,  and in Criminal Case No.  14/49,  Ramireddy, Pleader,  appeared for A-4, A-7 and A-8 and conducted  their defence.  Mr.  Ramireddy also offered to  defend  the  other accused, but they declined to have him and stated that  they did not want any lawyer to defend them.  In Nalgonda,  there are  about 40 practising pleaders out of whom about  half  a dozen are B.A. LL.B.s well conversant with English and  able to conduct cases in English." 359     It was contended on behalf of the petitioners that  this affidavit  concerns the petitioners in Case No. 14  of  1949 only, and this contention does receive some apparent support from the fact that in the earlier part of paragraph 4 refer- ence is made to the means of one of the accused in Case  No. 14, and there is also a direct reference to that case later. But,  on a careful reading of the affidavit as a  whole,  it seems  to  us that the affidavit was intended to  cover  the allegations  of the petitioners in all the three cases.   We also  find  that the point raised before us was  also  urged before the High Court when the petitioners applied for leave

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to  appeal against their conviction, and it was  dealt  with somewhat  elaborately  by  two learned  Judges  in  separate judgments, and they have expressed the view that the conten- tion that the Tribunal did not give the accused an  adequate opportunity  to engage lawyers is not well-founded.   Sripat Rao  J., who delivered the leading judgment,  after  dealing with the various facts, observed as follows:--     "It was not contended before us in appeal that they were not afforded such an opportunity by the 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 360 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 attention was drawn to the fact  that some of the relations of the accused in the first case (Case No. 14)were present at the trial, and some of the accused in that  case  were in fact defended by a pleader, and  it  was contended  that  this fact lent support  to  the  conclusion expressed  by the High Court, because if the accused in  the first  case  were not denied access to their  relations  and lawyers,  there was no reason why the accused in the  other- cases should have been denied such access. Therefore, in the state  of evidence before us, the position is  hardly  clear enough  to justify the conclusion which the petitioners  ask us  to  draw  in these petitions. But  we  must  state  that throughout   the arguments on this point, we could not  help feeling  that  the Special Tribunal should have  taken  some positive  steps  to assign a lawyer to aid  the  accused  in their defence. We  will now deal with the first point which relates to  the jurisdiction  of the Special Tribunal by which  the  accused have  been tried and convicted. The general ground urged  to make  good  this point is that the order made by  the  Civil Administrator  purporting  to  confer  jurisdiction  on  the Special  Tribunal to   try the petitioners did not  indicate with  sufficient   certainty that the petitioners  were  the persons  whose    cases were to be tried by  that  Tribunal, and  hence       there  was no proper order  to  enable  the Tribunal  to take cognizance of the petitioners’  cases.  It was contended that under the ordinary law, the cases of  the petitioners  would  have been placed in the  first  instance before a Magistrate for holding an enquiry before commitment and  thereafter  they would have been tried  by  a  Sessions Judge.  This procedure, it is argued, could have  been  dis- pensed  with only if a proper order had been made under  the Regulation  by the Civil Administrator, and, in the  absence of  such an order, the trial was null and void.  This  point was  also raised by the petitioners in their application  to

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the High Court for leave to 361 appeal  to this Court, and the High Court in  negativing  it relied on the orders made by the Civil Administrator in  two letters produced before it, viz., (1) letter No. 3176/49-ST, dated  7th April, 1949, by which criminal cases  covered  by charge  sheets Nos. 1 to 14 were ordered to be tried by  the Special  Tribunal  at  Nalgon-  ’ da;  and  (2)  letter  No. 4234/49-ST, dated 23rd July, 1949, by which cases covered by 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 which was submitted by the  Investigating Officer on the 7th April, 1949,  and  the other on the 20th July, 1949. The first letter of the  Civil Administrator,  which  was written on the 7th  April,  1949, covered  one of the charge sheets numbered 14  (the  earlier one), but it cannot be held to cover the second charge sheet bearing the same number (No. 14), which came into  existence on  the  20th July, 1949, i.e., nearly 3 months  after  that letter  was despatched. The second letter does not refer  to any charge sheet numbered 14. 47 362 Therefore the charge sheet No. 14 of the 20th July, which we will  for  the sake of brevity describe as 14  (2),  is  not covered  by any written order made by the Civil  Administra- tor.  Prima facie, therefore, there is room for the argument that  Case  No. 17, which is affected by this  charge  sheet [No.  14 (2)], was never properly made over to the  Tribunal and  the  trial of the accused in that  case  was  therefore without jurisdiction.     In the course of the arguments, the learned AttorneyGen- eral  referred to the affidavit of Mr. Hanumantha Naidu,  in which  it is stated that that case also was  transferred  by the  Civil Administrator to the Tribunal for trial,  and  he was also prepared to file an affidavit by the Civil Adminis- trator himself to show that the case had been validly trans- ferred  to the Tribunal.  It is unfortunate that this  point was  neither  raised nor investigated in the appeal  to  the High  Court, but has to be dealt with in this  Court  merely upon  affidavits, many of which are not properly drafted  or sworn.  In these circumstances, we would have been  inclined to  pursue the matter by further investigation had  we  felt that  such a course would serve any useful purpose,  but  we think  it  unnecessary to do so, as we find that  there  are certain insuperable obstacles in the way of our granting the petitioners any relief under article 32.

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   Article  32  (2)    provides   that  "the  Supreme Court shall   have   power  to  issue  directions  or  orders   or writs,   including  writs  in the  nature of  habeas    cor- pus,  mandamus,  prohibition,   quo warranto   and   certio- rari,    whichever   may   be appropriate, for the  enforce- ment  of  any  of the rights conferred by  this  Part  (Part III)." The power given to this Court under this provision is a  large one, but it has to be exercised in accordance  with well  established principles. The writs to  which  reference has been made must obviously 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:-- 363     "(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 this case,  because they  are usually directed to an inferior court, but at  the date  when  the High Court dealt with these cases  and  con- firmed  the  convictions and sentences of  the  petitioners, this Court was not in existence, and at that point of  time, by  no stretch of reasoning, the High Court can be  said  to have  been  subordinate to this Court. The  prayer  for  the issue  of a writ of habeas corpus is however said  to  stand clear  of this difficulty, on the ground that the  detention of  the petitioners would be illegal from day to day, if  it is  held to be based on an order made  without  jurisdiction which is therefore liable to be ignored as a nullity.     The matter is however not so simple as it may appear  at the  first sight. There is a long line of cases relating  to the habeas corpus writs, in which it has been held that when the return states that the party who is alleged to be unlaw- fully  detained, is detained in execution of a  sentence  on indictment  on a criminal charge, the return cannot be  con- troverted. [See R.v. Suddis (1), Carus Wilson’s case (2), Ex parte Lees (3)]  In some (1) (1801) 1 East 306.        (3) (1858) E. B. & E. 828. (2) (1845) 7 Q. B. 984. 364 cases, however, the question arose as to whether  affidavits would  be admissible to show that there was no  jurisdiction in  the court by which the prisoner was convicted.  On  this point, there are three cases in which it was held that  such an  affidavit  would be admissible. The  most  important  of these cases is In re Authers (1), on which very great  reli- ance has been placed by Mr. Pritt. In that case, the manager of  a club was convicted under a certain statute of  selling beer  by  retail without having an  excise  retail  licence. Subsequently,  he  was  convicted  of  selling  intoxicating liquor, viz., beer, without a licence under another statute.

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Upon the hearing of the latter charge, the magistrate treat- ed  it  as a second offence, and imposed  the  full  penalty authorized in the case of "the second offence" by the latter statute.  His  appeal to the Quarter  Sessions  having  been dismissed,  he applied for a writ of habeas corpus,  and  it was granted by the Queen’s Bench Division on the ground that the Magistrate could not treat the later offence as a second offence,  because it was not a second offence under the  Act under  which he was convicted for the second time.   Hawkins J. in dealing with the case observed 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 (1) (1899) 22 Q.B.D. 845 at 350. 365     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."     Referring  to the appeal of the prisoner to the  Quarter Sessions, the learned Judge observed:--     "This is true as a fact, but it puts the prosecution  in no  better position, for if the  magistrate had no power  to give  himself jurisdiction by finding that there had been  a first offence where there had been none, the justices  could not give it to him."     In  his  judgment, the learned Judge did  not  refer  to the  previous  precedents  on which he relied,  but  it  has been  generally assumed that he intended to refer to  In  re Bailey (1), and In re Baker (2).     As against these cases, there lare a number of cases  in which  a different view has been taken and which  cannot  be easily reconciled with them. The leading  case on the  other side of the line is In re Newton (3), where it was held that "the  Queen’s Bench Division had no power to grant a  habeas corpus to bring up a prisoner who had been convicted at  the Central  Criminal  Court,  on the ground  that  the  offence charged was committed at a place out of the jurisdiction  of that court." In dealing with the case, Jervis C.J. observed as follows:--     "The question raised in this case is undoubtedly one  of very  great  importance.   No authority has  been  found  to warrant  it. The point, it would seem, therefore, has  never before  been raised,--it may be because it is so plain  that there  is nothing in it.  The state of things is  this:  Mr. Newton has been tried and convicted on an indictment  alleg- ing that the offence charged was committed within the juris- diction  of  the Central  Criminal Court.  Either  that  was traversed,  or  the jurisdiction was  admitted  by  pleading over. If it were traversed, the finding of the jury is  that the  prisoner committed the offence within the  jurisdiction

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of the (1) 3 E & B. 607.  2) 2 H. & N. 219.  (3) 139 R. R. 692. 366 court, as alleged. He now seeks to impeach that finding,  on the  ground  that the place where the offence  was  actually committed  is more than one thousand yards distant from  the boundary  of  the parish in which the record alleges  it  to have  been  committed.  That is not to be  governed  by  the inquiry  whether the fact be indisputable or otherwise.   If we  could entertain the application because the boundary  is clearly ascertained, we should be equally bound to entertain disputes  of  the  most refined and  minute  character.  The inconvenience  of  this is manifest. The truth is  that  the remedy is not by an application 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 (1), 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 (2).     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 corpus. Assum- ing, however, that it is open even in such cases to investi- gate  the question of jurisdiction, as was held  in   In  re Anthers  (3) it  appears  to  us that  the   learned  judges who   (1)  [1942] A. C. 284. (2) I.L.R. 44 Cal. 723. (3)  (1889) 22 Q.B.D. 345. 367 decided   that   case   went  too   far   in   holding  that notwithstanding  the fact that the conviction  and  sentence had been upheld on appeal by a court of competent  jurisdic- tion,  the mere fact that the trial court had acted  without jurisdiction would justify interference, treating the appel- late order also as a nullity. Evidently, the appellate court in a case which properly comes before it on appeal, is fully competent  to decide whether the trial was with or   without jurisdiction,  and it has jurisdiction to decide the  matter rightly as well as wrongly. If it affirms the conviction and thereby decides wrongly that the trial court had the  juris- diction to try and convict, it cannot be said to have  acted without jurisdiction, and its order can not be treated as  a nullity.   It  is true that there is no such  thing  as  the principle  of constructive res judicata in a criminal  case, but  there  is such a principle as  finality  of  judgments, which  applies  to criminal as well as civil  cases  and  is implicit in every system, wherein provisions are to be found for  correcting errors in  appeal or in  revision.   Section 430, Criminal Procedure Code, and section 355 of the Hydera- bad Criminal Procedure Code, have given express  recognition to  this principle of finality by providing that  "Judgments and orders passed by an Appellate Court upon appeal shall be

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final,  except  in  cases provided for in  section  417  and Chapter XXXII."     It  is well settled that if a court acts without  juris- diction,  its decision can be challenged in the same way  as it would have been challenged if it had acted with jurisdic- tion,  i.e.,  an appeal would lie to the court to  which  it would  lie if its order was with jurisdiction.  [See  Ranjit Misser  v.  Ramudar Singh (1); Bandiram Mookerjee  v.  Purna Chandra  Roy C); Wajuddi Pramanik v. Md. Balaki  Moral  (3); and  Kalipada Karmorkar v. Sekher Bashini Dasya(4)].  There- fore,  the High Court at Hyderabad had jurisdiction to  hear and  decide the appeal in this case. In view of  this  fact, the  deprivation of life or liberty, upon which the case  of the  (1)  (1912) 16 O.L.J. 77.             (3) 30 C.W.N.  63  at 64.  (2) I. L. R. 45 Ca1, 926 of 929.      (4) 24 C.L.J. 233. 368 petitioners is founded, has been brought 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  which  have  become final. Can we, in other words, do indirectly what we refused to  do  directly  ? It is argued that we are  asked  not  to reopen  a  past  transaction but to deal  with  the  present detention of the petitioners, i.e., their detention at  this moment.  But,  how can we hold the present detention  to  be invalid,  unless we reopen what could not be reopened  prior to the 26th January, 1950.  This is, in our opinion, one  of the  greatest  difficulties which the  petitioners  have  to face,  and it rests not merely on technical grounds  but  on sound  legal principles which have always been,  and  should be, respected.     The  learned counsel for the petitioners tried  to  make much  of the fact that the petitioners had lost their  right to appeal by a sudden change in the law and by the delay  on the part of the High Court in the disposal of their applica- tion  for leave to appeal to the Judicial Committee of  Hyd- erabad.  That may be unfortunate, 369 but there can be no justification for widening the scope  of the   existing  remedial laws beyond legitimate  bounds.   A similar argument was addressed in Ex parte Lees(1) and  Lord Campbell C.J. met it with these observations :--     "It  is alleged, on the part of the prisoner,  that  the proceedings  were  upon a repealed statute, and  that  there were  errors in the judgment and  hardships and  irregulari-

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ties in the proceedings. If such allegations are well-found- ed, and obstacles are found to prevent any remedy by  appeal to the Privy Council, or by writ of error to this Court,  we apprehend  that  the  advisers of the Crown  will  take  the matter  into  their consideration, and form  their  judgment with  respect to any alleged error, wrong or hardship  which may be brought before them; and, if any such be  established to  their  satisfaction, will advise the Crown to  give  the relief  to which they may think  the applicant entitled,  by pardon or mitigation of punishment. We have no authority  to interfere."     All  that we can say is that the petitioners accused  in Criminal  Case  No. 17 of 1949 have made out a  prima  facie case that there was no specific order of the Civil  Adminis- trator directing the case to be tried by a Special  Tribunal and  they  have  shown that in that case one  of  the  three members of the Tribunal gave a dissenting judgment which  is more  favourable to the accused than the majority  judgment. While  the  facts  were being analysed  before  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 (1) (1858) E.B. &.F. 826. 48 370 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 dismissed. Agent for the petitioners: 1. N. Shroff. Agent for the respondents: P.A. Mehta.