dedol-hf/india-case-legal-rag huggingface dataset:
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-
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-
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
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
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
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
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