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