S.C.R. SUPREME COURT REPORTS 941

Committee stood transferred to the Supreme Court of India. The 1950

applL~ntions of the petitioners were amended so as to 1nake them -

applications under Art. 134 of the Constitution, but they wereJana?"dan Reddy

dismissed on the ground that no such petitions lay under Art. and Others

134 and also on the merits. The p!3titioners thereupon made v.

an application to the Supreme Court of India under Art. 136 of The State.

the Constitution for special leave to appeal:

Held that, inasmuch as Art. 136 confers power on the Supreme

Court to grant special leave to appeal only from any judgment,

decree, sentence or order passed or made by " any court or tri­

bunal in the territory of India," and the Hyderabad High Comt

was not a Court in the territory of India when the judgments in

question were pronounced the Supreme Court bad no jurisdiction

to grant special leave. ·

Art. 136 cannot be so construed as to apply to judgments or

orders pronounced before

Hyderabad became part of India and

tc

confer a right of appeal inferentially, merely because the petition­

ers bad a right to appeal to the Judicial Committee of Hyderabad

when the Constitution came into force and they had been deprived

of this right by the abolition of that Committee without making a

provision enabling them to appeal to the Supreme Court.

APPELLATE JURISDICTION (Criminal) : Criminal Mis.

cellaneous Petitions Nos. 71 to 73 of 1950.

Petitions under Art. 136 of the Constitution praying

for special leave to appeal to the Supreme Court from

the orders

of the High

Court of Judicature at Hydera­

bad dated 12th, 13th and 14th December, 1949, dis­

missing the appeals preferred by the petitioners against

orders

of the Special Tribunal of Hyderabad con\'icting

them

of murder and sentencing them to death. The

material facts and arguments

of the counsel appear

from the judgment.

D. N.

Pritt (K. B. Asthana, Daniel Latifi, Bhawa

Shiv Charan Singh and A. S. R. Chari, with him) for

tbe petitioners.

M.

C. Setalvad, .Attorney-General for India, and

Raja Ram Iyer (G. N. Joshi, with them) for the res­

pondent.

1950. December 14. The Judgment of the Court

was delivered by

KANIA C.J.-These are three criminal miscellaneous Kania c. J.

petitions asking for special leave to appeal to the

--·-------------------------

942

,

'

SUPREME .COURT REPORTS

[1950]

1950 • Supreme Court under articie 136 of the Constitution of

--· · _India. · ·-- ·

Janard'an Reddy ·-. . ·

a•a Others . All the accused were charged WI th berng members of

-•. ,__ .the Communist Party wedded to the policy of over­

Th• Stat•. throwing the existing Government at Hyderabad by

violence and establishing in its place a communist

Ka•i~C. J. regime:--It is alleged that they demanded subscrip­

tions towards their communist organization

and some

of

the villagers who did not meet their demands· were

abducted

on the 21st of September, 1948, and

murdered. They were

charged· with various offences

including

murder before a special

tribunil established

under

the regulations promulgated by tlie Military

Governor under

the -authority of H. E.

·H. the Nizam

and convicted and sentenced to death- on the 9th, 13th

and 14th of August, 1949, by separate judgments. The

petitioners appealed from those judgments to the

Hyderabad High Court and the High Court,by its judg­

ments dated the 12th, 13th and 14th December, 1949,

respectively, dismissed the appeals.

The petitioners

applied

to the High

Court for a certificate to appeal to

the Judicial Committee of the Hyderabad State on the

21st of January, 1950. It appears that H.E. H. the '

Nizam issued a

jirman.on the 23rd of November, 1949,

stating that the proposed Constitution of India was

suitable for

the government of Hyderabad and he

accepted,it as the Constitution

of, the Hyderabad State

as one of the States of

PartB in the First Schedule. On

the 26th of January, 1950, the Constitution of India

became applicable to the Union of India and the Part

B States. The petitions originally filed for a certificate

for leave to appeal

to the Judicial

Committee of the

Privy Council of the Hyderabad State were, by leave

of

the Court, amended, and made into petitions under ·article 134 of the Constitution of India. A Division

Bench of

the High

Court at Hyderabad considered the

petitions and dismissed therri on the ground that no

such petitiim-s-

lay under article 134 and· they also

declared

that on the merits no case was made out for

a certificate

as asked by the petitioners. Tlie peti­

tioners

have now filed their petitions to this Court under

<

S.C:R. SUPREME COURT REPORTS 943

article 136 of

the

Constitution of India, for special 19zo

leave to appeal from the judgments of the High . Court ;r -d -R aa .·

dated the 12th, 13th and 14th of December, 1949. a:i:;d ~~h,:, Y

Two questions arise for consideration. The'first is, v.

whether any application under article 136, under· the Th• St•t•.

circumstances of the case, can be made to the Supreme

Court;-and, the second is, whether on a consideration Kan;a c. J.

of the facts, if it has jurisdiction to entertain· the

petitions, the Court should grant special leave. · The

first question depends

on the construction of the

relevant articles in the

Constitution of India. Under

article 374 (4), on and from the commencement of this

Constitution the jurisdiction of the authority func-

tioning· as the Privy Council in a State specified in.

Part B to the First Schedule to entertain· and dispose

of appeals

and .petitions from or in respect of any

judgment, decree or order of any court within that

State ceased, and all appeals and other proceedings

pending before

the said authority at such commence-

ment stand transferred to and have to be disposed of

by the

Supreme Court. This sub-clause thus abolishes

the jurisdiction of the Privy Council of the Hyderabad_

State and after the Constitution of India came into

force

that body and its jurisdiction altogether ceased. On the facts before us, it is clear that as no proceeding

or appeal in respect of these judgments of the Hydera-.

bad High Court.was pending before the Hyderabad

Privy Council before its abolition, nothing got trans-

ferred to the Supreme Court by operation of this sub-.

clause.

It

wls argued on behalf of the petitioners that on

the 25th January, 1950, they had a right to move the

High Court at Hyderabad for a certificate granting

them leave to appeal to the Privy Council of the

Hyderabad State. In fact such petitions were pending

on that day. It was therefore argued that a right to

appeal which existed on the 25th of January, 1950,

cannot be impliedly taken away by the Constitution

of India being made applicable to the State of

Hyderabad. It was pointed out that in respect of

convictions all pers.ons who had rights of appeal, or

•

944 SUPREME COURT REPORTS [1950]

1950 who had time to file their applications for a certificate,

- as also persons whose petitions were pending before

Ja:a;:~::::dy the Hyderabad High Court ~sking for such. certificates

v. and which had not been disposed of because of the

The State. congestion of work in the High Court would lose their

right to appeal to the higher court if article 136 is not

Km1ia c. J. construed so as to give a right of appeal to the Supreme

Court of India. It was pointed out by the Attorney­

General, appearing

on behalf of the State, that if a

wide construction is given to article 136

it will not only

permit persons who are

stated to be under such hard­

ship to apply for leave under article 136 but several

. other rights will be created.

Such rights will arise not

. only in criminal cases

but in civil cases also and they

can be exercised without any limitation as to the

period within which

the application has to be made,

with

the result that old judgments may also be called

into question. Moreover, on the wider construction

of

article 136, judgments which had become final in those

States in which there existed no court like the

Privy

Council to whom appeals could lie from the judgments

of their High Courts, will be subject to appeal though

no such appeal

lay before. It was therefore argued

that on the ground of convenience the balance if at all.

is against the argument advanced

by the petitioners.

It was strenuously urged that this is a wrong approach

to the question altogether. Articles of

the

Constitu­

tion have to be construed according to their plain

natural meaning and cases of hardship should not be

brought to bear on the

natural construction. Hard

cases should not be permitted to make bad law. In our

opinion, this argument of the Attorney-General is sound.

The question

of hardship cannot be and should not be

allowed

to affect the true meaning of the words used in

the

Constitution. It is therefore proper to approach

the articles irrespective of considerations of hardship.

In order to decide whether on the facts of this case,

the Supreme Court has jurisdiction to grant special

leave,

it is necessary only to consider articles 133, 134,

135

and 136 of the

Constitution of India. Article 133,

in substance, retains the old provisions of the Civil

...

S.C.R. SUPREME COURT REPORTS 945

Procedure Code in respect of appeals to the Privy 1950

Council from High Courts in civil matters. Under

1

d-R dd

article 134, it is provided that an appeal shall lie to·· •::d ~h.:, 11

the Supreme Court from any judgment, final order or v.

sentence in a criminal proceeding of a High Court in The Stato.

the territory of India if the High Court ......... (then

follow three contingencies under which such appeals

Kania c. J.

can lie). In article 133 also the words

" in the terri-

tory of India " are used. Article 135 provides for

matters to which the provisions of articles 133 or 134

do not apply. It is there provided that until Parlia-

ment by law otherwise provides, the Supreme Court

shall also have jurisdiction and powers with respect

to any matter to which the provisions of article 133 or

134 do not apply, if jurisdiction and powers in rela-

tion to that

matter were exercisable by the Federal Court immediately before the commencement of this

Constitution under any existing law. This article was

included

in' the

Constitution to enable the Supreme

Court to exercise jurisdiction in cases which were not

covered by articles

133 and 134, in respect of matters

where

the Federal

Court had jurisdiction to entertain

appeals etc. from the High Courts under th~reviously

existing law. This is obviously a provision to vest

in the Supreme Court the jurisdiction enjoyed by the

Federal Court, under the Abolition of Privy Council

Jurisdiction Act, 1949. It may be mentioned that the

jurisdiction of the Privy Council to entertain appeals

from High Courts, except those which were already

pending before it on the 10th October 1949, was taken

away by this Act. Provision had therefore to

be

made in respect of appeals which were already pending

or which were not covered by

th~ provisions of

articles 133 and 134. Article 136 of the Constitution

of India is in these terms:~

"136. (1) "Notwithstanding anything in this

Chapter, the Supreme Court may, in its discretion,

grant special leave to appeal from any judgment,

decree, determination, sentence or order in any cause

or matter passed or made by

any

Court or tribunal in

the territory of India.''

l~\

946 SUPREME COURT REPORTS [1950]

1950 (2) ......... "

-- The expression "territory of India" is defined in

Ja•ar:~:hReddy article 1 in these terms :-

•• v. "' "1. The territory of India shall comprise

Th• State. (a) the territories of the States (meaning the

States mentioned in Parts A, B and C of the First

Kania G. J. Schedule),

(b) the territories specified in Part D of the First

Schedule, (viz., The Andaman and Nicobar Islands) and

(c) such other territories as may be acquired."

The question for consideration is whether on the

facts of the present case the Supreme Court can grant

special leave to appeal from a judgment, sentence or

order which was passed

and made by the Hyderabad

High

Court before 26th January, 1950. The important

fact to be borne in mind is that the Hyderabad courts

were not courts within the

territory of India when

they pronounced their judgments on the 12th, 13th

and 14th of December, 1949. It is argued on behalf of

the petitioners that a narrow construction will take

away the valuable rights of appeal which had existed

in persons

iJ.i the position of petitioners when the Con­

stitution onndia was directed by H. E. H. the Nizam

by his firman to be applicable to the Hyderabad State

on the 26th of January, 1950, it should be held that as

no substantive right was provided in

the

Constitution

separately, the words of article 136 were wide enough

to give such right to the petitioners. On the other

hand, it was then argued by the learned Attorney­

General

that every legislation is primarily prospective

and not retrospective. A right of appeal has to be

given specifically

by a statute and it is not merely a

procedural right.

If therefore there exists no right of

appeal

under the

Constitution such right cannot be

inferentially held to come into being on the application

of the Constitution to the Hyderabad State. For this,

reliance was placed on the decision of the Privy

Council in Delhi Cloth and General Mills Ltd. v. In­

come Tax Commissioner, Delhi & Another(') and The

Colonial Sugar Refining Co. Ltd. v. Irving(•).

(1) 54 I.A. 421. (2) [190\] A.O. 369,

S.C.R. SUPREME COURT REPORTS 947

In our opinion, the contention of the Attorney-!950

general on this point is correct. There appears no ---

reason why in the present case the normal mode ofJanardan Reddy

· t · 1 · 1 t · · I ] and Others

mterpre mg a eg1s a 10n as prospective only s iou d be v.

departed from. It was contended by Mr. Pritt that The State.

the interpretation sought to be put by the State on

article 136 will require the insertion of the word Kania c. J.

"hereafter" in the clause, for which there was no

justification. We are unable to accept this contention

because,

prima f acie, every legislation is prospective

and even without the use of the word

"hereafter" the

language

of article 136 conveys the same meaning. It

should be noticed in this case that before the 26th

January, 1950, the Government of H. E. H. the Nizam

was

an independent

State in the sense that no court in

India or the Judicial Committee of the Privy Council

in London had any jurisdiction over the decisions of

the Hyderabad State Courts. To give the Supreme

Court of India jurisdiction over the decisions of courts

of such a state,

one requires specific provisions or pro-

visions which necessarily confer jurisdiction to deal,

on

appeal, with the decisions of such courts. It is com.

mon ground

that there is no express provision of that

kind. There appear to us also no such necessary

circumstances which on reasonable construction

should

be treated as impliedly giving such right of appeal. In-

deed the words "territory of India" lead to a contrary

conclusion. Under the words used

in article 136 the

courts which passed judgments or sentence

must be

courts within the territory of India. The territory of

the Government of H.E.H. the Nizam was never the

territory

of India before the 26th of January, 1950, and

therefore the judgment and sentence passed by the

High

Court of H.E.H. the Nizam on the 12th, 13th

and 14th December, 1949, cannot

be considered as

judgments and sentence

"passed by a court within

the territory of India". On that short ground alone

it seems that the petitioners' contention must fail.

It was argued by Mr. Pritt on behalf of the peti­

tioners that if such construction were put, the territory

of the Province of Bombay also may be exduded from

•

948 SUPREME COURT REPORTS [1950)

1950 the operation of article 136. The answer however is

that a right to file an appeal from the judgments of

Janardan R•ddy the High Court at Bombay in both civil and criminal

and Othors matters existed under the Civil Procedure Code,

v. Criminal Procedure Code and the Letters Patent of

The State

the High Court before the 26th of January, 1950. Such

Kania o. J. right of appeal to the Judicial Committee of the

Privy Council, which previously existed, was trans­

ferred to the Federal Court by the appropriate legisla­

tion and eventually by article

135 to the

Supreme

Court. Therefore by the interpretation, which we think

is the proper interpretation of article 136 of the Con­

stitution of India, the right of appeal from the judg­

ment of the Bombay High Court is not taken away. It

is true that having regard to the words used in

article

136 which can bear a wider meaning a right to

apply for leave to appeal to

the Supreme

Court is given

in respect of decisions not only

of High

Courts but of

other tribunals also.

That larger right, if it did not

exist before

the 26th January,

1950, can be legitimately

construed as newly conferred

by article 136 and such

construction

does not give rise to

any' anomaly. In

our opinion, therefore as the judgments were pro­

nounced and sentences passed in all these matters

before us by the High Court of Hyderabad, which was

in the territory

of H.E.H. the Nizam and which terri­

tory was not

the territory of India before the 26th of

January,

1950, and as those judgments were passed

before the Constitution came into force they do not fall

within the class

of judgments against which special

leave to appeal to the Supreme

Court can be asked for

under article 136.

It is obvious that such judgments

are not covered under article

135 of the Constitution

of India.

In our opinion this

Court has therefore no jurisdic-

• tion to entertain these petitions for special leave to

appeal against such judgments

of the High

Court of

Hyderabad under Article

136 of the Constitution. Cases like those of the petitioners are thus not covered

by articles 134,

135 or 136 and therefore the Supreme Court in the present state of the legislation is unable to