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PETITIONER:

SYED QASIM RAZVI

Vs.

RESPONDENT:

THE STATE OF HYDERABAD AND OTHERS(and other cases)

DATE OF JUDGMENT:

19/01/1953

BENCH:

MUKHERJEA, B.K.

BENCH:

MUKHERJEA, B.K.

HASAN, GHULAM

SASTRI, M. PATANJALI (CJ)

AIYAR, N. CHANDRASEKHARA

BOSE, VIVIAN

CITATION:

1953 AIR 156 1953 SCR 589

CITATOR INFO :

F 1953 SC 287 (4)

RF 1953 SC 394 (6)

RF 1953 SC 404 (21)

RF 1954 SC 424 (18)

F 1955 SC 13 (14)

R 1955 SC 191 (5)

R 1956 SC 60 (13)

F 1956 SC 269 (27)

F 1957 SC 397 (43)

F 1957 SC 503 (16)

R 1957 SC 877 (16)

D 1957 SC 927 (9)

F 1958 SC 86 (22)

R 1958 SC 538 (11)

RF 1958 SC 578 (211)

D 1959 SC 149 (9,45,46)

E&D 1959 SC 609 (27)

R 1961 SC1245 (11,13,22)

RF 1961 SC1457 (13)

RF 1962 SC 92 (6)

R 1979 SC 478 (64,68,93)

RF 1980 SC1382 (105)

ACT:

Constitution of India, 1950, arts. 13,14,21-Special Tribunal

Regulation (V of 1358-F, Hyderabad)-Trial under Regulation

commenced before 26th January, 1950-Trial continued after

that date-Validity of conviction-Regulation, whether

discriminatory and void-Question whether discriminatory

provisions were applied in fact after 26th January, whether

relevant.

HEADNOTE:

The Military Governor of the Hyderabad State promulgated on

October 30, 1948, a Regulation called the Special Tribunal

Regulation,V of 1358 Fasli, under which a Special Tribunal

was constituted consisting of three members appointed by the

Military Governor. The Regulation provided that the

Military Governor may, by general or special order, direct

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that any offence or class of offences should be tried by

such Tribunal, and the procedure for trial laid down in the

Regulation differed from the provisions of the Hyderabad

Criminal Procedure Code in the following mate. trial

particulars among others, viz., the Tribunal had power to

take cognisance of offences without committal, there was no

pro. vision for trial with jury or assessors, the language

of the Tribunal was to be English, only a memorandum of the

evidence need be taken, there was no provision for de novo

trial on change of personnel, and there was no provision for

transfer,revision or confirmation of sentences. The cases

against the petitioners, who were charged with rioting,

dacoity, arson and other offences, were, directed to be

tried by the Special Tribunal on October 6, 1949. The

accused were convicted in September, 1950, and the convic-

tion on' some of the charges was upheld by the High Court on

appeal in April, 1951. The accused appealed to the Supreme

Court and also applied under art. 32 of the Constitution of

India for quashing the orders of the High Court, and the

Special Tribunal on the ground that the Special Tribunal

Regulation became void on the 26th January, 1950, as its

provisions contravened articles 14 and 21 of the

Constitution which came into force on that date, and the

continuation of the trial and conviction of the petitioners

after that date was illegal :

Held, per PATANJALI SASTRI C.J., MUKHERJEA and CHANDRA-

SEKHARA AIYAR JJ. (BOSE and GHULAM HASAN JJ. dissenting) -

(i) Article 13 of the Constitution have had no retrospective

effect and, even

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590

though some of the provisions of the impugned Regulation

contravened art. 14, the Regulation must be held to be valid

for all past transactions and for enforcing rights and

liabilities accrued before the advent of the Constitution,

and on this principle the order made by the Military

Governor referring the cases to the Special Tribunal cannot

be impeached, and the Special Tribunal must be deemed to

have taken cognisance of the cases properly and its

proceedings up to the date of the coming in of the Con-

stitution must be regarded as valid.,

(ii) In a case like this where part of the trial could not

be challenged as bad, it is incumbent on the court to

consider, first, whether the discriminatory provisions of

law could be separated from the rest and even without them a

fair measure of equality in the matter of procedure could be

secured to the accused and secondly, whether the procedure

actually followed did or did not proceed upon the

discriminatory provisions. A more threat or possibility of

unequal treatment is not sufficient to invalidate the

subsequent proceedings.

(iii) On the facts the accused had substantially the

benefit of a normal trial, though there were deviations in

certain particulars and the conviction of the petitioners

could not be set aside merely because the Constitution of

India came into force before the completion of their trial.

BOSE J.-(i) Under Art. 13 (1) of the Constitution a trial

cannot be legally Continued after the Constitution on the

basis of a law which offends the fundamental provisions of

the Constitution and therefore which, though good when made,

would have been bad if it had been passed after the

Constitution, because the most vital part of a trial is its

conclusion and therefore a conviction after the Constitution

based on matter, or as a result of procedure, which is

abhorrent to the Constitution would be bad. This is not

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giving,retrospective effect to the Constitution because the

conviction in such a case is after the Constitution and

would be based on matter which offends its fundamental

guarantees.

(ii) In testing the validity of a law it is irrelevant to

consider what has been done under it, for a law is either

constitutional or not and its validity or otherwise cannot

depend on what has been accomplished under its provisions.

(iii) The provisions of the Special Tribunal Regulation

which confer an unfettered discretion on the Military

Governor to direct any case or cases to the Tribunal without

laying down any basis for classification of the cases, the

absence of committal proceedings, the deprivation of the

rights of revision and transfer and of the right to a de

novo trial, the right of the Tribunal to adopt a summary

procedure, and in particular the elimination of the Urudu

language which is the Court language of Hyderabad and of the

right to have sentences confirmed, are all discriminatory

provisions; most of these provisions cannot be separated

from the

591

good portions of the Regulation. The whole Regulation

therefore became void on the 26th of January, 1950, end the

trial of the petitioners after that date was under a void

law;there was also discrimination in fact after the @6th

January as the proceedings were conducted in English even

after that date. The conviction of the petitioners was

consequently illegal.

GHULAM HASAN J.-The discriminatory provisions of the

Regulation stood in the way of the petitioners even after

the 26th January, 1960, and prevented them from exercising

their right to apply for bail, for transfer or for revision

and this was quite sufficient for holding that the

Regulation violated art. 14 and was therefore void under

art. 13. The question whether the discriminatory provisions

were in fact applied to the petitioners' cases after the

26th January, 1950, was irrelevant. The discriminatory

provisions are not severable from the rest of the Regulation

and the trial held under the Regulation was therefore void

under art. 13 read with arts. 14 and 21 and the conviction

of the petitioners was illegal.

Anwar Ali Sarkar v. The State of West Bengal ([1952) S.C.R.

284), Lachmandas Kewalram Ahuja v. The State of Bombay

([1952] S.C.R. 710) explained and distinguished.

JUDGMENT:

ORIGINAL JURISDICTION. Petitions Nos. 172 and 368 of 1952

under Art. 32 of the Constitution. Cases Nos. 276, 277,

278, 279 and 280 of 1951, being appeals under Arts. 132 (1)

and 134 of the Constitution from the Judgment and Order of

the 13th April, 1951, of the Hyderabad High Court in

Criminal Appeals Nos. 1449 and 1453 of 1950 were also heard

along with these petitions.

A.A. Peerbhoy and J B. Dadachanji for the petitioners-

appellants.

V. Rajaram lyer, Advocate-General of Hyderabad (K.S.R.

Chari, with him) for the respondent (I State of Hyderabad).

1953. January 19. The Judgment of Patanjali Sastri C. J.

and Mukherjea and Chandrasekhara Aiyar JJ. was delivered by

Mukherjea J. Vivian Bose and Ghulam Hasan JJ. delivered

separate judgments.

(Petition No. 172 of 1952 and Case No. 276 of 1961).

MUKHERJEA J.-Syed Qasim Razvi, the appellant in this appeal,

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was one of the accused in what is,

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known as the Bibinagar dacoity case which took place within

the State of Hyderabad and in which, according to the

prosecution, a serious raid was committed by a party of

armed Razakars in village Bibinagar, about 21 miles from the

city of Hyderabad, attended with robbery, looting, arson,

assault and other violent acts on the afternoon of 10th

January, 1948. The First Information Report was lodged on

the day following, but the police administration of the

State of Hyderabad was at that time under the complete

control of the Razakars and they tried to minimise the

gravity of the occurrence as far as possible and there was

neither any proper police investigation nor any serious

attempt to arrest the culprits or bring them to trial. It

was on the 28th of August, 1949, that is to say, after a

lapse of 19 months after the occurrence, that a charge-sheet

was presented before the Special Tribunal No. 4 at

Trimulgherry, Secunderabad, against the appellant and six

other persons. The Tribunal was constituted in accordance

with the pro-visions of the Special Tribunal Regulation

(Regulation V of 1358F) and as provided for in section 2 of

the Regulation, it consisted of three members appointed by

the Military Governor. Under section 3 of the Regulation,

it was competent to the Military Governor by general or

special order to direct that any offence or class of

offences should be tried by such tribunal and the procedure

to be followed by such tribunal was laid down in section 4

of the Regulation. , The case against the appellant and his

co-accused was formally referred to the Special Tribunal by

an order of the Military Governor dated the 6th of October,

1949 ; but as the charge-sheet had been submitted on a

previous date, another order was passed on 8th of October,

1949, validating the presentation of the charge-sheet. The

trial commenced before the Special Tribunal on 24th October,

1949, and on that day the Special Public Prosecutor opened

the case on behalf of the prosecution. The procedure

followed in the case was the warrant procedure and the

prosecution examined 40 witnesses in

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all before closing its case. The examination-in-chief of

all these witnesses was finished on the 21st November, 1949,

and the appellant at that stage, chose to cross-examine only

one witness, namely, the fortieth or the last one and this

was done on the 22nd November, 1949. On 29th November,

1949, the accused was examined under section 273 of the

Hyderabad Criminal Procedure Code which corresponds to

section 342 of the Indian Criminal Procedure Code, and on

the 5th of December following, charges were framed against

him under sections 123, 124, 330 and 177 read with section

66 of the Hyderabad Penal Code The cross examination of 18

prosecution witnesses was finished before the 26th of

January, 1950, and the rest of the witnesses were cross-

examined after that date. The accused was examined again

on, 26th February, 1950.

By their judgment dated the 11th September 1950, the Special

Tribunal convicted the appellant on all the charges

mentioned above and sentenced him to 2 years" rigorous

imprisonment under each of the sections 123, 124 and 177

read with section 66 and to 7 years' rigorous imprisonment

under section 330, the sentences to run concurrently. There

was an appeal taken by the appellant against this decision

to the High Court of Hyderabad. The High Court by its

judgment dated the 13th of April, 1951, allowed the appeal

to this extent only, namely, that it acquitted the accused

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of the charge under section 123 of the Hyderabad Code, but

otherwise dismissed the appeal and affirmed the conviction

and sentence passed by the Special Tribunal. On, 6th of

August, 1951, the High Court gave leave to the accused to

appeal to this court under articles 132 and 134 of the

Constitution; and an appeal has been filed in pursuance of

this certificate. The records of the appeal have not been

printed as yet, but in the mean time the appellant presented

an application under article 32 of the Constitution praying

for a writ in the nature of certiorari for quashing the

orders of the High Court as well as of the Special Tribunal

594

referred to `above and for releasing him on the ground that

the proceedings before the Special Tribunal became void

after 26th of January, 1950, as they conflicted with the

provisions of articles 14 and 21 of the Constitution. As

the trial became bad in law after 26th January, 1950, the

resulting conviction and sentence were, it is said, illegal

also, and the appellant is entitled to be released from his

imprisonment '

When this petition came up for hearing, a question was

raised by the learned Advocate-General for the State of

Hyderabad as to whether a petition under article 32 would be

the proper remedy in a case like this having regard to the

fact that the High Court, which was a properly constituted

court and was competent to go into the question of

jurisdiction of the Special Tribunal, had already dealt with

this matter. Without expressing any opinion on this point,

we decided to hear arguments on the questions raised

treating them as preliminary points in the appeal itself.

Whether the appeal will- be heard further on its merits will

depend upon the decision we arrive at in the present

hearing.

The contention of Mr. Peerbhoy, who appeared in support of

the appeal, mainly is that the procedure laid down in the,

Special Tribunal Regulation for trial of offences departs,

in material particulars, from that under the ordinary law

obtaining in Hyderabad and these differences do abridge the

rights of the accused and deprive them of benefits to which

otherwise they would have been entitled under the general

law. Prima facie, therefore, the procedure for trial under

the Special Tribunal Regulation is discriminatory. It is

urged that this discrimination could not be justified on any

reasonable'principle of classification. No attempt was,

made in the Regulation to classify the offences either with

regard to their nature or the area in which they were

committed. An unfettered discretion was left to the

Military Governor to refer any and every case as he liked to

be tried by. the Special Tribunal without any rule or

principle to

595

guide his discretion. The whole procedure, therefor,e was

void according to the ' principles laid down by this court

in the case of Anwar Ali Sarkar v. The State of West

Bengal(1). It is true that in this case the Constitution

had not come into force when the trial was commenced and a

portion of the trial had already been gone through prior to

the 26th of January, 1950; but it is urged that as the

continuance of the procedure became void on and from the

date of the Constitution, the conviction and sentence

resulting from the adoption of such procedure could not be

upheld. In this connection, reliance has been placed upon

the case of Lachmandas Kewalram Ahuja v. The State of

Bombay(2) decided by this court which the learned counsel

contends exactly covers the present point.

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The questions raised are undoubtedly important and they

involve an examination of some of the earlier pronouncements

of this court.

The first question that requires consideration is as to

whether the procedure for trial of criminal offences laid

down in the Special Tribunal Regulation is discriminatory in

its character and offends against the provision of article

14 of the Constitution ? If it is found that some of the

provisions at least are discriminatory, the question would

then arise as to what exactly is the legal position in a

case like this where admittedly a considerable portion of

the trial was gone through prior to the coming into force of

the Constitution and that portion is immune from challenge

on the ground of discrimination, as the rights guaranteed

under the Constitution are not retrospective in their

operation. If the procedure subsequently followed was also

discriminatory, it is not disputed that the conviction of

the accused could not stand. But if it is found that there

was no occasion after the 26th of January, 1950, to apply

any of the provisions of the Regulation which are

discriminatory in their character and if as a matter of fact

the procedure that was actually followed was substantially

(1) [1952] S.C.R. 284.

(2) [1952]S.C.R. 710,

596,

the same as obtains' under tHe ordinary law, could it be

said that the whole trial is vitiated and the resulting

conviction and sentence must necessarily be set aside ?

Looking first of all to the provision of the Special

Tribunal Regulation, it is to be noticed that the preamble

to the Regulation does not specify the object of the

enactment or the legislative policy behind it. Apparently

an unfettered discretion has been vested in the Military

Governor and he can send any offence or class of offences to

be tried by the Special Tribunal in any way he likes and

there is no objective expressly stated in the statute itself

in relation to which his discretion is to be guided or

controlled. It is indeed 9, matter of common knowledge that

this Regulation was promulgated just after tbetermination of

the police action in Hyderabad when a most alarming and

unsettled state of affairs prevailed in the State. There

was undoubtedly ample justification for a special measure

like this; but the question still arises whether there are

provisions in the Regulation, which being repugnant to the

fundamental rights enunciated in the Constitution, could not

be enforced after the Constitution came into force? The

provisions in the Regulation were undoubtedly intended to

shorten criminal trials and constitute special courts which

would be left in entire charge of the cases referred to

them, leaving the ordinary courts to do their normal work.

Under section 6 of the Regulation, a Special Tribunal has

been given all the powers which are conferred on a court of

session by the Hyderabad Criminal Procedure Code. Section

4(1) provides that it can take cognizance of offences

without the accused being committed to it for trial; and

under sub-section (7) of this section, the tribunal is

enjoined to follow the procedure prescribed for summary

trials by Magistrates, though it may, when it considers

proper, follow the warrant procedure. It is open to the

Special Tribunal to direct that the proceedings before it

should be conducted in the English language. The Tribunal

is lot bound to

597

take down evidence at length in writing and it need only

cause a memorandum of the substance of what each witness

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deposes to be taken down in English. But here again if it

considers proper, it can direct that the entire evidence

should be taken down. Among other changes,the Regulation

provides that the tribunal would not be bound to adjourn

any. trial for any purpose, there would be no de novo trial

if there is a change in its personnel, it can try any

accused person in his absence if it is satisfied that the

absence has been brought about by the accused himself with a

view to impede the course of justice, and if it considers

proper, it can exclude the public from any proceeding.

Section 7 provides that the tribunal can pass any sentence

authorised by law and an appeal would lie against its orders

to the High Court in the same way as orders of the Sessions

Court would be appealable under the provisions of the

Hyderabad Criminal Procedure Code. The powers of revision

and transfer are wholly taken away and so also are the

provisions relating to confirmation of sentences. These, in

brief, are the features of the procedure laid down for trial

before the Special Tribunal.

It is admitted that at present no system of jury trial

obtains in the State of Hyderabad; there is no doubt the

provision for trial with the aid of assessors in the city of

Hyderabad itself, but there is no such provision for areas

outside the city. Under the ordinary procedure, at present

case could not have been tried with the aid of assesors and

the appellant cannot complain of inequality in this respect.

The committal proceedings are undoubtedly eliminated but it

has been brought to or notice by the learned Advocate-

General appearing for the State of Hyderabad that the

preliminary enquiry before committal is not compulsory under

the Hyderabad Criminal Procedure Code; and under section

267-A of the Code, a Magistrate is competant without

recording any evidence, or after recording some portion of

the evidence, to commit an accused for trial by the

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598

Sessions Court if he is satisfied that there are sufficient

grounds for such committal. It appears therefore that the

elimination of the committal proceeding is not by itself a

substantial departure from the normal procedure.

Mr. Peerbhoy laid much stress upon the provision of the

Regulation which authorises the tribunal to direct that the

proceedings before it shall be conducted in the English

language. This again cannot be held to be discriminatory as

the Hyderabad Code nowhere prescribes any particular

language to be the language of the court. There is no doubt

that ordinary court proceedings in Hyderabad are conducted

in Urdu, but Urdu is certainly not the spoken language of

even the majority of the people within the Hyderabad State.

If the accused in a particular case is not acquainted with

the English language and if by reason of the absence of

adequate arrangements to have the proceedings interpreted to

him in the language he understands, he is prejudiced in his

trial, obviously it might be a ground which may, be raised

on his behalf in an appeal against his conviction. But in

our opinion it cannot be said that the provision in the

Regulation relating to proceeding being conducted in English

if the tribunal so desires per se violates the equal pro-

tection clause in the Constitution.

I The power of granting adjournment rests, even under

ordinary law, in the exercise of a sound discretion by the

court and is not a matter of much consequence. The court

can also under the ordinary law exclude members of the

public or particular persons from the court room in such

circumstances as it considers proper (vide section 283 of

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the Hyderabad Code). As regards denovo trial, when there is

a change in the personnel of the court, the provision of

section 350 of the Indian Criminal Procedure Code is to the

effect that when a case after being heard in part goes for

disposal before another Magistrate, the accused has the

right to demand, before the second Magistrate commences the

proceedings, that the witnesses

599

already examined should be re-examined and reheard Under the

corresponding section (section 281) of the Hyderabad Code,

however though the accused can demand re examination of the

witnesses, the Magistrate can disallow such prayer if he

considers proper, although the disallowing of such prayer

may be a ground for ordering a retrial by the High Court.

Obviously, the provision in the Special Regulation deviates

only to this extent from the ordinary procedure. The

continuance of a trial in the absence of the accused when

the court is satisfied that the absence has been brought

about by the accused himself to impede the course of

justice, is another special feature of the trial before the

Special Tribunal. The two material departures from the

normal procedure are to be found in the provisions contained

in sub-sections (2) and (7) of section 4 of the Regulation.

Sub-section (2) authorises the tribunal to dispense with

recording the evidence in extenso and provides that a record

of the memorandum of the substance of the deposition of each

witness would be sufficient. There is a proviso introduced

by sub-section (2) (a) which says that the above provision

sball not preclude a special Tribunal from directing in

respect of any trial that the evidence should be taken down

at length. Sub-section (7) lays down that, unless something

to the contrary has been provided for in the Regulation, the

tribunal should follow the procedure of summary trial,

though even here it can adopt the warrant procedure for

reasons which it has got to record in writing.

The provision relating to summary trial irrespective of the

nature of the offence and also that relating to: recording

of evidence in a summary manner may be considered

prejudicial to the accused and, may normally deprive him of

benefits which are enjoyed by other persons similarly

situated who are tried under the ordinary law. One thing

noticeable in the Special Regulation with regard to these

provisions is that an option has been given to the Special

Tribunal to adopted warrant procedure in such cases as

600

it -considers necessary and it can also direct that the

evidence should be taken down in extensor In the case before

us it is admitted that evidence was recorded in full and the

procedure followed was, the warrant and not the summary

procedure. Mr. Peerbhoy argues that a law, which allows the

summary procedure to be followed or the recording of

evidence to be dispensed with at the discretion of the court

without any attempt to specify the class of cases where such

exceptional provisions should be applied, is prima facie

discriminatory and is invalid under article 14 of the

Constitution irrespective of the fact as to whether or not

such provisions were actually applied in a particular case.

Whatever may be the position where provisions of this

character are laid down in a statute enacted after the

Constitution came into force, in a case like the present,

where the proceedings prior to 26th January, 1950, would

have to be assumed to be valid, the question as to what

procedure was actually followed after that date may be

relevant for the purpose of determining whether the trial

could be regarded as vitiated on the ground of infringement

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of the equal protection rule. We will have to deal with

this matter more fully later on.

Mr. Peerbhoy argues that even the substitution of warrant

procedure for sessions procedure constitutes a substantial

difference. We cannot accept this contention as sound. If

we leave out the committal proceeding, which is not

compulsory under the Hyderabad law, the accused could not be

in a really worse position by reason of the warrant

procedure being followed instead of the sessions procedure.

In the case before us it appears that the prosecution bad

examined all their witnesses before the framing of the

charge and the accused was given an opportunity to cross-

examine them at that stage. He chose to cross-examine only

one of these witnesses and after the framing of the charge

all the prosecution witnesses were cross-examined by him.

Our attention has been drawn to the: provision of section

267-A (2)

(b) of the Hyderabad Criminal Procedure Code which

601

speaks of recross-examination by the accused in a sessions

case. It appears that under the provisions of the Hyderabad

Code, in a sessions trial the prosecution witnesses are

first examined and as soon as the examination-in-chief of

each one of them is finished they could be cross-examined on

behalf of the accused. After the prosecution has closed its

case and before the accused produces his defence witnesses,

he is allowed to recross-examine, if he so desires, any of

the prosecution witnesses, though such recross-examination

is limited to matters which were not put to the witnesses in

the previous cross-examination. Neither side could

enlighten us on the point as to whether this is allowed only

when the committing Magistrate does not examine any witness

before the commitment order or it is applicable also when

the prosecution witnesses are examined and cross-examined at

the committal stage. We do not think, however, that it is

correct to say that during the sessions trial itself there

are three rights of cross-examination given to the accused

as Mr. Peerbhoy contends. The accused can crossexamine the

prosecution,witnesses As and when they are examined by the

prosecution and he has a right of second cross-examination

at the end of the prosecution case and before he calls his

own witnesses, though the latter right is a thin,and

attenuated one, being confined to such matters as were

omitted during the first cross-examination. In the warrant

procedure which has been followed in the present case, the

accused also got two rights, of cross-examination, one

before the framing of the charge and the second after the

charge was framed. In our opinion, this cannot be said to

be a substantial difference in the procedure resulting in

prejudice to the accused.

Mr. Peerbhoy further argued that the provision for appeal

contained in the Regulation deprived him of the right of

second appeal which is allowed under the Hyderabad-Code.

This argument, in our opinion, is based upon a

misconception. It appears from section 355 of the Hyderabad

Criminal Procedure Code that there are second appeals

allowed under the

602

Hyderabad law even in criminal cases; and when it is said

that an appeal lies to the High Court from the order of a

Sessions Judge, it contemplates that the order of the

Sessions Judge may be passed by him either as an original

court or in appeal from the decision of a District

Magistrate or Assistant Sessions Judge. But in the present

case the original trial was by the Special Tribunal which

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was invested with the powers of a sessions court and

consequently only one appeal would lie to the High Court.

It is said that the case could have been tried by the

District Magistrate and in that case the accused could have

one appeal to the Sessions Judge and a second one to the

High Court under the Hyderabad law. This contention rests

on a pure speculation and is hardly tenable. One of the

charges against the accused was a charge of dacoity under

section 330 of the Hyderabad Penal Code. On a conviction

under this section the court is empowered to sentence the

accused to a term of rigorous imprisonment which may extend

up to 10 years. Unless, therefore, the District Magistrate

was of the opinion that the case did not merit a ,sentence

beyond 4 years of rigorous imprisonment, he was bound to

refer the case to be tried by a court of session. This is

not a matter of which really any grievance could be made.

The other departure noticeable in the Special Regulation is

the withdrawal of the provisions relating to revision and

transfer. Another thing that has been omitted from the

Special Tribunal Regulation is the provision relating to the

confirmation of certain sentences which under the ordinary

law have to be confirmed by higher authorities. According

to the Hyderabad Code, the High Court has not only to

confirm death sentences, but also sentences of trans-.

portation for life and of imprisonment for a period

exceeding 10,years. The death sentences have got to be

further confirmed by the Nizam.

It would appear from what has been stated above that there

are a few provisions in the procedure for trial by a Special

Tribunal appointed under the

603

Regulation mentioned above, which differ from ordinary

procedure, and they are prima facie prejudicial to the

accused. Under article 13 (1) of the Constitution, all laws

in force in the territory of India immediately before the

commencement of the Constitution in so far as they are

'inconsistent with the fundamental rights under Part III of

the Constitution shall, to the extent of such inconsistency,

be void. The argument of Mr. Peerbhoy seems to be that it

may be that all the provisions relating to trial by a

Special Tribunal are not bad, but as some of them undoubt-

edly are, the whole law on the face of it is discriminatory

and must be held to be void as conflicting with the equal

protection clause, and the question as to how it was

actually worked out in a particular case is not a material

fact for consideration at all. In support of this

contention the learned counsel relies upon the view accepted

by the majority of this court in the case of State of West

Bengal v. Anwar Ali Sarkar(1). In our opinion, the position

here is materially different from that in Anwar Ali Sarkar's

case (1). In Anwar Ali Sarkar's case (1) the opinion

expressed by the majority of this ;court was that section 5

(1) of the West Bengal Special Courts Act was ultra vires

the Constitution in so far as' it authorised the State

Government to direct any case to be tried by the Special

Court. The clause was held to be invalid, as the Act, which

was passed after the coming into force of the Constitution,

did not mention in what cases or offences such directions

could be given, nor did it purport to lay down the criterion

or the basis upon which the classification was to be made.

As this portion of section 5 (1) of the statute was on the

face of it discriminatory, the question as to how it was

applied on the facts of a particular case could not and did

not arise.

In the case before us, the impugned Regulation was in

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operation from long before the date of the Constitution.

Section 3 of the Regulation, which is similar to section 6

(1) of the West Bengal Special

(1) (1952] S.C.R. 284.

604

Courts Act, might be in conflict with the provision of

article 14 of the Constitution, but as has been held by this

court in Keshavan Madhava Menon's case (1), the effect of

article 13 (1) of the Constitution is not to obliterate the

entire operation of the 'inconsistent laws or to wipe them

out altogether from the statute book; for to do so will be

to give them retrospective effect which they do not possess.

Such laws must be held to be valid for all past transactions

and for enforcing rights and liabilities accrued before the

advent of the Constitution. On this principle, the order

made by the Military Governor, referring this case to the

Special Tribunal, cannot be, impeached and consequently the

Special Tribunal must be deemed to have taken cognizance of

the case quite properly, and its proceedings up to the date

of the coming in of the Constitution would also have to be

regarded as valid. To quote the observation of our brother

Das J. in Lachmandas Kewalram Akuja v. The State of Bombay

(2), " as the Act was valid in its entirety before the date

of the Constitution that part of the proceeding before the

Special Judge which up to that date had been regulated by

the special procedure cannot be questioned." The question

now arises, how is the validity of the proceedings sub-

sequent to the date of the Constitution to be determined ?

It is not disputed that under article 13 (1) of the

Constitution those provisions of the Special Tribunal

Regulation which are in conflict with article 14 of the

Constitution, became void as soon as the Constitution came

into force; but article 13 (1) does not make the whole

statute invalid, it invalidates only,those provisions which

are inconsistent with the fundamental rights guaranteed

under Part III of the Constitution and simply because the

trial was continued even a ter 26th January, 1950, under the

same, Regulation, would not necessarily render the

subsequent proceeding invalid. A I that the accused could

claim is that, what remained of the trial must not deviate

(1) [1951] S.C.R. .S.

(2) (1952] S.C.R.710.

605

from the normal standard in material respects so as to

amount to a denial of the equal protection of laws within

the meaning of article 14 of the Constitution. For the

purpose of determining whether the accused was deprived of

such protection, we have got to see first of all whether

after eliminating the discriminatory provisions in the

Regulation it was still possible to secure to the accused

substantially the benefits of a trial under the ordinary

law; and if so, whether that was actually done in the

present case?

Mr. Peerbhoy argues that once it is held that there are in

the Special Tribunal Regulation provisions which are

obnoxious to the equal protection clause, any proceeding

under the Regulation after the 26th of January, 1950, must

be held to be totally invalid under article 13 (1) of the

Constitution, and it is not material to enquire whether the

trial could go on without the discriminating provisions or

whether as a matter of fact these provisions were at all

applied. It is the possibility of unequal application of

law or the threat to equality that makes the Regulation

invalid after the Constitution comes into force and con-

sequently the question of actual prejudice to the accused is

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not a relevant matter for consideration. In support of this

contention the learned counsel relies strongly upon the

decision of this court in Lachmandas Kewalram Ahuja v. The

State of Bombay (1). We are not convinced that this line of

reasoning is correct. In Lachmandas's case(1) the trial was

held before a Special Tribunal constituted under section 10

of the Bombay Public Safety Measures Act, 1947, and in

accordance with the procedure laid down in that Act. The

procedure was pronounced to be discriminatory in material

particulars and though that part of the trial, which was

held prior to 26th January, 1950, could not be assailed, the

continued application of the discriminatory procedure after

that date was held to be illegal; and the result was that

the conviction of the accused

(1) [19521 S.C.R. 710.

79

606

was set a side and are trial ordered. It appears to us

'that in Lachmandas's case(1) the present question was

neither raised nor considered, namely, as to whether after

eliminating the discriminatory provisions in the statute it

was still possible to go on with the trial and secure to the

accused substantially the benefits of a trial under the

normal procedure. On the other hand, it was assumed

throughout that it was not possible to proceed with the

trial without following the discriminatory procedure and as

that procedure became void on the coming into force of the

Constitution, the jurisdiction of the Special Judge practi-

cally came to an end. Das J. who delivered the Majority

judgment of this Court in Lachmandas's case(2) expressly

observed as follows:

" Indeed in a sense the Special Judge's jurisdiction came to

an end, for he was enjoined to proceed only according to the

special procedure and that procedure having become void as

stated above, he could not proceed at all as a Judge of a

Special Court constituted under the impugned Act."

Whether this assumption was well-founded or not it is not

profitable for us to discuss at the present stage; but it is

clear that this aspect of the case was not presented to the

court at all by the learned counsel on either side and so

was not considered by the court. The decision in

Lachmandas's case(1) cannot, therefore, be put forward as an

authority against the view which we have indicated above.

'In cases of the type which we have before us where part of

the trial could not be challenged as bad and the validity of

the other part depends on the question as to whether the

accused has been deprived of equal protection in matters of

"Procedure, it is incumbent upon the court to consider,

firstly, whether the discriminatory or unequal provisions of

law could be separated from the rest and even without them a

fair measure of equality in the matter of procedure could be

secured to the accused. In the second place, it has got to

consider whether the procedure actually

(1) [1952] S.C.R. 71O,

(2)[1952]S.C,R. 710, 735,

607

followed did or did not proceed upon the basis of the

discriminatory provisions. In our opinion, a mere threat or

possibility of unequal treatment is not sufficient. If

actually the accused has been discriminated against, then

and then only he can complain, not otherwise.

We may mention here that the impossibility of giving the

accused the substance of a trial according to normal

procedure at the subsequent stage may arise not only from

the fact that the discriminatory provisions were

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not severable from the rest of the Act. and the court

consequently had no option to continue any other than the

discriminatory procedure; or it may arise from something

done at the previous stage which though not invalid. at that

time precludes the adoption of a different procedure sub-

sequently. Thus if the normal procedure is trial by jury or

with the aid of assessors, and as a matter of fact there

was no jury or assessor trial at the beginning, it would not

be possible to introduce it at any subsequent stage.

Similarly having once adopted the summary procedure, it is

not possible to pass on to a different procedure on a later

date. In such cases the whole trial would have to be

condemned as bad. As has been said above, the case of Lach-

mndas Kewalram Ahuja v. The State of Bombay (1) proceeded on

the assumption that it was not possible for the Special

Court to avoid the discriminatory procedure even after 26th

January, 1950. The matter was not investigated but that was

the asstimption upon which this court proceeded. One reason

why this assumption was not combated might have been that

the ordinary trial in that case should have been with the

aid of assessors and as there was no assessor trial at the

beginning, it was not possible t6 adopt it afterwards.

We will now proceed to examine the facts of this case in the

light of the principles enunciated above. It, may be

mentioned here that after the learned counsel on both sides

had finished their arguments

(1) [1952]S.C. R. 710.

on questions of law, we gave the appellant an opportunity to

place materials before us for the purpose of showing to what

extent he had been actually discriminated against and

prejudiced in the trial t at was held after the coming into

force of the Constitution. He has filed a long affidavit

setting out in an elaborate manner his alleged grievauces

and we gave the parties a further hearing upon it.

As we have already stated, no exception could be taken to

the Special Tribunal's taking cognizance of the case under

an order of the Military Governor as all this happened long

before the advent of the Constitution; and it cannot be

urged that the creation of ai Special Court by itself was,

an inequality in the eye of law. Apart from other

circumstances, the present case was undoubtedly a big one

and the trial was expected to take a considerable period of

time before it could be completed. To allow it to go before

the ordinary court would mean nothing else but blocking the

hearing of all other cases for an indefinite length of time.

There was nothing per se unreasonable in appointing a

Special Court and section 13; of the Hyderabad Criminal

Procedure Code expressly empowers the Government to confer

the powers of a court on any Government servant in any local

area or with respect to a particular case or cases and such

person is denominated a special judge. As regards the

procedure to be followed by the Special Tribunal, the

Regulation undoubtedly prescribes the procedure for summary

trial by a Magistrate. If the tribunal had adopted that

procedure, we would have no other alternative but to declare

the whole trial as invalid for although the summary

procedure could not have been challenged as illegal prior to

the doming in of the Constitution, it could not possibly

have been changed to a different procedure after 26th

January, 1950. The entire procedure would then have to be

held as invalid as conflicting with the equal protection

clause. The tribunal however adopted the warrant procedure

which it was entitled to do under the Regulation itself; and

as we have

609

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indicated already, the committal proceeding not being

compulsory under the Hyderabad Code, the difference between

a warrant procedure and a sessions procedure is not

material. The recording of a memorandum of evidence in a

summary manner is another discriminatory feature in the

Regulation, but here again the Regulation gave an option to

the tribunal to direct the recording of evidence in extenso

,and the tribunal actually did give that direction in the

present case. There can be no doubt that if the option had

been exercised in the other way, it would have, been

impossible to give the accused the substance 'of au ordinary

trial after the passing of the Constitution. The use of the

English language during the trial is not at all

discriminatory as we have already said and so far as the

present appellant is concerned, he could not possibly make

any grievance of it. No complaint has been made by the

appellant that the Special Tribunal refused to grant ,any

adjournment that he prayed for and as there was no change in

the personnel of the tribunal during the whole period of the

trial, no question of de nova trial could at all arise.

There was also no occasion for holding the trial in the

absence of the accused ; the appellant however in his

affidavit has made a grievance of the fact that when the

second local inspection was held by the court, neither he

nor his lawyer was present and he merely gave a note of

certain places and things for information of the tribunal.

In reply to this it is stated in the affidavit filed on

behalf of the State that the appellant did not want to be

present and he gave a note to the tribunal stating therein

all that he wanted to state. Whatever the actual facts

might have been it seems to us that this is not a matter

which is connected in any way with the provision of the

Regulation which enables the tribunal to proceed with the

trial in the absence of the accused. The Regulation

authorises the tribunal to go on with a trial in the absence

of the accused only when it is satisfied that the absence

has been brought about by the accused. himself to impede

610

the course of justice. Obviously it was not under this

provision that the tribunal went to inspect the spot of

occurrence in the absence of the accused. In fact, the

Regulation does not say 'anything at all &bout local

inspection. The provision for local inspection is contained

in section 528 of the Hydersbad Code which corresponds to

section 539A of the Indian Code. It is important to note

that the Hyderabad Code does not say anything about giving

notice to the parties before holding any local inspection,

though that is necessary under the Indian law. It may be

said that it is eminently desirable that the court should

make the local inspection in the presence of both parties.

But if there was any irregularity in this respect, that is a

point which could be raised on the merits of the appeal ; it

has nothing to do with any provision of the Regulation in

regard to which a question of conflict with the equal pro-

tection clause can arise.

The omission of the provisions relating, to revision,and

transfer in the Regulation apparently seem to be

discriminatory, but even on this point the grievance of the

appellant appears to be more imaginary than real. When a

Special Court is validly set up to try a particular case, a

transfer of that case to some other court cannot normally be

contemplated. The absence of the right of transfer. in such

cases is an incident of the establishment of the Special

Court. Under the Regulation there is plenary power of

transfer given to the Military Governor and he can exercise

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such power in any way he likes without any restriction or

limitation. It may be that this provision-was deemed

sufficient to meet any exceptional circumstance that might-

arise. As regards the right of revision, it appears that

there was only one application for revision filed by the

appellant sometime before 26th of January 1950 The

allegations were want of jurisdiction of the, Special Court

and also irregularity of the trial by reason, of misjoinder

of charges that application was dismissed on 27the

February, 11950, and-the order

611

shows that it was not rejected on the ground that the

Regulation does not allow' any revision to the accused, but

that it was not proper to interfere with the proceeding at

that stage. The questions which the appellant wanted to

raise were all raised by him in the appeal from the final

judgment and they have been considered by the High Court.

If there is any error committed by the High Court in this

respect, the appellant would be at liberty to raise that

point @hen the appeal is heard on its merits. Considering

all these facts, we have no hesitation in holding that

although there were deviations in certain particulars, the

accused had substantially the benefit of a normal trial in

this case. The question of confirmation of sentence, we may

say, is not at all relevant, for the sentenced, which have

been passed upon the accused, do not require any

confirmation under, the Hyderabad Criminal Procedure Code.

In cataloguing his grievances the appellant has stated inter

alia ' in his affidavit that he was kept in military custody

and also in a solitary cell, that he was separated from his

fellow prisoners, that the tribunal was completely dominated

by the Executive and that a stenographer was kept sitting

behind him all the time that, the trial was going on who

took down every word that passed between him and his

counsel. It is not at all necessary for us to inquire 'into

the truth or falsity of these allegations, for even if they

are true, they are irrelevant to the present enquiry. These

are matters not related in any way to the question of

inequality in connection with the provisions of the Special

Tribunal Regulation.

Finally Mr. Peerbhoy raised an objection based on article 21

of the Constitution and contended that the appellant was not

tried in accordance with the procedure established by law.'

What he said is, that the Military Governor had no authority

under section 3 of the Regulation to refer an individual

case to the 'Special Tribunal for trial, for it authorised

him to direct the Special Tribunal -to try "any off once

612

whether committed before or after the commencement of this

Regulation or any classes of offences", but not any

individual case. A distinction is made between an "offence"

and a "case", and the learned counsel points out that an

offence could be described as a case only when it is

connected with a particular person who is alleged to have

committed it. The direction to try "any offence" must,

therefore, mean a direction to try an offence described as

such in the Hyderabad Penal Code, no matter by whom it is

committed and not an offence committed by any particular

person which is a case. We see no force in this argument.

Whatever interpretation may be put upon the words " off once

" and " case " in a context where both are used in the same

provision, as for instance, in section 5 of the West Bengal

Special Courts Act which was under consideration in Anwar

Ali Sarkar's case() we are of opinion that section 3 of the

Regulation contemplates no such distinction and that it

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empowers the Military Governor to direct a Special Tribunal

to try an offence committed by a particular person, in other

words, to try an individual case. This view derives support

from the language employed in the Hyderabad Special

Tribunals (Termination) and Special Judges (Appointment)

Regulation, 1359 F., whereby it was provided that a Special

Judge appointed under that Regulation shall try "such"

offences of which the trial was pending before a, Special

Tribunal immediately before its dissolution as were "made

over" to him for trial by specified authorities [section

5(1) ]. This is clearly a provision for transfer of the

cases pending trial before the Special Tribunals dissolved

under that Regulation to Special Judges appointed in their

place As both the Regulations must be read together

dealing as they/ do with the constitution and termination of

the same bodies and, as the later Regulation clearly uses

the word "offences" in the sense of cases, it must receive

the same meaning in the earlier Regulation V of 1358 F.

(1) [1952) S.C.R. 284.

618

The result therefore, is that the preliminary point raised

by the appellant cannot succeed. The petition under article

32 shall stand dismissed and the appeal will be posted for

hearing-on its merits in the usual, course.

(Petition No. 368 of 1952 and Cases

Nos. 277 to 280 of 1951).

MUKHERJEA J. The above order in Criminal Appeal No. 276 of

1951 will govern connected Appeals Nos. 277, 278, 279 and

280 of 1951, which have been preferred respectively by

Khadar Ali Khan, Mohd., Hazi Khan, Mahbat Khan and Syed

Nazir Ali, the four co-accused of Qasim Razvi in the Bibi-

nagar dacoity case, who were tried along with him by the

Special Tribunal No. IV at Trimulgherry. They were

sentenced to various terms of imprisonment on charges of

dacoity, rioting, etc. , by the Special Tribunal and the

convictions and sentences were affirmed with slight

modification by the High Court of Hyderabad in appeal. They

have now come up to this court on the strength of a

certificate granted by the Hyderabad High Court under

articles 132 and 134 of the Constitution.

The appeals are not yet ready for hearing, but as in Qasim

Razvi's case, the appellants have filed a petition under

article.32 of the Constitution being Petition No. 368 of

1952-attacking the validity of the trial by the Special

Tribunal on the same constitutional grounds as have been

urged by Qasim Razvi in his petition. We heard arguments on

these questions treating them as preliminary points in the

appeals. The points are, identically the, same as in Qasim

Razvi's case; only in the affidavits, which have been filed

by the petitioners at the conclusion of the ,hearing on

questions of law, each one of them has attempted to state in

his own way how he was actually prejudiced at the trial by'

reason of the procedure adopted by the Special Tribunal. We

have been taken through these affidavits and we find

nothing in so

614

them which would justify us in taking a view different from

that taken in Qasim Razvi's case.

It has been conceded by Mr. Peerbhoy that the cases of

Khadar Ali Khan and Mahbat- Khan stand exactly on the same

footing as that of Qasim Razvi. With regard to Syed Nazir

Ali and Hazi Khan the special facts alleged are that both of

them were undefended during the trial by the Special

Tribunal and no lawyer was engaged on their behalf. It is

said further that they were both ignorant of the English

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language in which the proceedings were conducted, that the

presiding Judge Mr. Pinto did Act understand Urdu and

consequently they had no opportunity of making themselves

heard. Without entering into the truth or otherwise of

these allegations, it would be enough to state for our

present purpose that they do not involve any constitutional

point, and as we have said in the main case, the direction

to conduct proceedings in English does not per se offend

against the provision of article 14 of the Constitution. If

as a matter of fact the accused did not got a fair trial or

were prejudiced in their defence, these matters can very

well be raised when the appeals are heard on their merits.

These, however, are not questions which arise at the present

stage when we are concerned only with infraction, if any, of

the fundamental rights guaranteed under Part III of the Con-

stitution. The result, therefore, is that the preliminary

points raised in these appeals are overruled and the appeals

would be posted for hearing on their merits in the usual

course. The application under article 32 will stand

dismissed.

(Petitions Nos. 172 and 368 of 1952 and Cases No8.276 to 280

of 1951.)

Bose, J.-I am unable to distinguish these cases in'

principle from The State of West Bengal v. Anwar Ali

Sarkar(1), Kathi Raning Rawat v. The State of Saurashtra(")

and Lachmandas Kewalralm Ahuja and Another v. The State of

Bombay(3) and in particular

(1) [1952] S.C.R, 284. (2) [1952] S.C.R. 435, (3) [1952]

S.C.R, 710,

615

from the last which is more skin to these in that there also

there was a trial under a special law which held good until

the Constitution of India came into force, but which was

held to be bad-after that date because it offended article

14 (1).

Before the Constitution the State of Hyderabad was not part

of the Dominion of India. Its ruler the Nizam, was sovereign

in all material respects ahad absolute powers over his

subjects, including thepower to legislate as he wished at

his will and even at his caprice, if he so chose.

Soon after the partition of India, and in particular in the

year 1948, there occurred grievous disturbances in the State

which led to what is popularly known as "police action" on

the part of India. In the course of these disturbances

many, grievous crimes :were committed, and in particular,

complaints were laid before the authorities of a series of

grave offences said to have been comitted on the 10th of

January, 1948. Those are the offences with which we are

concerned. The first information report relating to them

was lodged the following day.

Some eight months later, namely on 13th September, 1948,

there came the police action. It lasted for three days and

swift on its conclusion a Military Governor was appointed

for the State of Hyderabad. The Governor was immediately

invested by the Nizam, who was still in law the absolute

ruler of the State, with authority to legislate for the

state way of Regulation. In exercise of those powers the

Military Governor promulgated the Regulation, which is now

impugned, on 31st October, 1948.

Sections 2 and 3 of the Regulation empowered the Military

Governor to constitute Special Tribunals by general or

special order, to direct them to try any offences or classes

of offences he chose to name and, further, to transfer the

trial of any particular case he liked from the ordinary

courts of the State to one or other of these Special

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Tribunals. The Regulation also prescribed a special

procedure which differed from the procedure of the ordinary

courts.

616

In pursuance of these powers the Military Governor made an

order on 26th June, 1949, constituting certain Special

Tribunals, among them the one with which we are concerned.

Later, on 6th October, 1949, he made another order in which

he selected the offences which the present appellants and

their co-accused were suspected to have committed, namely,

dacoity, grievous hurt, wrongful confinement, arson, riot

and destruction of evidence,he furnished particulars of time

and place and gave a general description of the victims

included, he named the appellants and others as accused in

relation to these specific occurrences and directed that

they be tried by the Special Tribunal for these offenses.

I am not able to regard this as a general order directing

that all offenses of dacoity, grievous hurt, arson, riot,

etc., by whomsoever committed, shall be tried by the Special

Tribunal. The order, in my opinion, is a specific, and,

what might call "unclassified", selection of these special

handpicked offences suspected to have been committed by

these particular accused.

The trial proceeded. The charge was framed on 5th December

1949, and up till 26th January, 1950, (the date of the

Constitution) forty witnesses were examined for the

prosecution. Of them, eighteen were cross-examined before

26th January, 1950, and twenty-two were cross-examined

after. The appellants were convicted on 11th September,

1950, and their convictions,were upheld on appeal by the

High Court of Hyderabad on 13th April, 1951. It is conceded

that the ' trial was valid and regular up to the 26th of

January, 1950. The question is whether it could be validly

continued by the same Tribunal and under the same procedure.

after that date.

This, to my mind, involves consideration of three distinct

things: (1) does the Regulation itself, or any part of it,

contravene article 14 (1) ? (2) does the Order made on the

strength of the Regulation do so ? and (3) does the

procedure adopted by the Tribunal do so ?

617

As to the first, namely the Regulation itself, article 13(i)

falls to be considered. It runs:

All laws in force in the territory of India immediately

before the commencement of this Constitution, in so far as

they are inconsistent with the provisions of this Part,

shall, to the extent of such inconsistency, be void."

That, to my mind, raises this query if this law had been

passed after the Constitution and the present trial had

commenced after it, would either have been valid ? If not, I

cannot see how a conviction can be based after the

Constitution on a procedure and on matter which is abhorrent

to its fundamental chapter however much all that was done

may hive been, good up to that date. This, to my mind, is

not giving retrospective effect to the Constitution because

the vital part of a trial is its conclusion. I am not

prepared to construe these fundamental provisions in a

narrow way. Paraphrasing them broadly, they breathe a

message of hope to those who have not known equality' of

treat me, before, and give a guarantee of security to those

who have, a guarantee which came into effective being

the moment the Constitution was born. Assuming this

Regulation to be a law which offends the Constitution and

therefore which could not have been upheld after it, we have

the Constitution saying to every man who can claim its

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protection " You shall not be convicted, nor will you be

sent to jail', under laws which infringe the fundamental

rights hereby guaranteed to' you." In my judgment, it is a

breach of this fundamental guarantee to convict on the basis

of a law which cannot hold good after the 'Constitution.

This, to my mind, is the decision in Lachmandas's case(1).

I refer in particular to the following passages in the

majority judgment :

"As the Act was valid in its entirety before the date of the

Constitution, that part of the proceeding before the Special

Judge, which,. up to that date, had been regulated by this

special procedure cannot be

(1) [1952] S.C.R. 710.

618

questioned, however discriminatory it may have been, but if

the discriminatory procedure is continued after the date of

the Constitution, surely the accused- person may

legitimately ask: 'Why am I today being treated differently

from other persons accused of similar offences in respect of

procedure?'

it is therefore clear............ that such continuation of

the application of the discriminatory procedure to their

cases after the date of the Constitution constituted a

breach of their fundamental right guaranteed by article 14

and being inconsistent with the' provisions of that article

the special procedure became void under article

13............ Their complaint is not for something that had

happened before 26th January, 1950, but is for

unconstitutional discrimination shown against them since

that date.

Therefore, the continuation of the trial after that date

according to the discriminate my procedure resulting in

their conviction and sentence cannot be supported. Indeed

in a sense the Special Judge's jurisdiction came to an end,

for he was enjoined to proceed only according to the special

procedure and that procedure having become void as stated

above, he could not proceed at all as a Judge of a Special

Court constituted under the impugned Act."

I now proceed to consider whether this Regulation could have

been upheld as good law if it had been promulgated after the

Constitution; and here it is necessary to emphasise that in

testing the validity of a law it is irrelevant to consider

what has been done under it, for a law is either

constitutional or not and its validity or otherwise cannot

depend upon what has been accomplished under its provisions.

That, to my mind, is self-evident, but it also seems to

follow from that portion of the, majority decision in the

West Bengal case(1) which is summarised in headnote (ii) at

page 285 and head note (v) at page 286.

(1)[1952] S.C.R. 284.

619

Now in Lachmandas's case(I)there is this important passage

at page 733:

" Further, the supposed basis of the alleged classifi-

cation, namely the fact of reference, to the Special Court

before the Constitution came into effect, has no reasonable

relation to the objects Bought to be achieved by the Act."

This, in my opinion shows that the majority considered it

relevant and important to determine the post-constitutional

validity of' an enactment which was valid up 'to the date of

the Constitution by the application of post-constitutional

standards and tests.

In the present case , the impugned Regulation does not set

out any objects. I do not think that is fatal but I do

think that when that is the case, the Courts are called upon

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to determine what the objects are from the Act itself and

the surrounding circumstances, as best they may, and if the

objects so determined cannot be reasonably related to the

basis of the classification, the Regulation must, on the

authority of Lachmandas's case(1), be considered post-

constitutionally improper.

Now, looking to the surrounding circumstances, I can only

conceive of two objects (1) speedier trials.(2) more

convenient disposal of certain unspecified cases. The first

has been condemned as discriminatory in the West Bengal

case(2) in the following words:

"Assuming that the preamble throws any light on the section,

the necessity of speedier trial is too vague, uncertain and

elusive a criterion to form a rational basis for

discrimination."

By parity of reasoning the second is even more

objectionable.

The next point on which the West Bengal Special Courts Act

was considered objectionable by at least four of the seven

Judges was that the Act did not lay down any basis for

classification of the cases

(1) [1952] S.C.R. 710,

(2) 1952] S.C.R. 284.

620

which could be sent to the Special Court for trial under a

procedure which varied- substantially from that of the

Criminal Procedure Code and that it left 'the selection of

the offences and the cases to the uncontrolled discretion of

the State Government.

In the Saurashtra case(1) the majority of the Judges held

that the mere fact that an' Act authorises a State

Government to direct that offences or classes of offences or

classes of cases are to be tried by a special court does not

off end article 14. Reading this with the earlier judgment,

I conclude that the true principle is that it is not the

setting up of special courts which matters, unless of course

their composition is objectionable, but the procedure which

they are directed to follow. If the special judges are

selected from a class of judicially qualified and experi-

enced men of recognised impartiality and they are enjoined

to follow a procedure which does not differ substantially

from that of the ordinary courts, there can be no reasonable

objection, but if the procedure deprives the accused of

substantial advantages which other accused similarly placed,

can, demand, then article 14 comes into play.

The impugned Regulation in the present case Rulers from the

same defects. Under it the Military Governor is authorised

to direct that, any offences whether committed before on

after the commencement of the Regulation, or any class of

offences, shall be tried by a Special Court, also to

transfer any particular,case from the ordinary criminal

courts to a Special Tribunal. His discretion is unfettered

and absolute.

So far as the special procedure is concerned, three of its

features have been considered in one or other of the three

earlier decisions and criticised as abhorrent to article 14.

Those features are (1) an absence of committal proceedings,

(2) deprivation of the right of (a) revision, (b) transfer

and (o) of the right to .demand a do novo trial in certain

circumstances, and

(1) [1952]S.C.R. 435

621

(3) the right of the Special Tribunal to adopt a summary

procedure in cases where that would not ordinarily be

permissible.

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In the present case, the question of a de novo trial is

not only linked up with the absence of a right of transfer

but with the fact that even when the constitution of the

Special Bench is changed by an alteration of its personnel

there is no right to demand a de novo trial,

In addition to these, there are certain features of dis-

crimination in the Regulation which are Peculiar to

Hyderabad, namely the elimination of the Urdu language,

which in practice is the language of the Courts there, and

the right to have certain sentences confirmed.

The Hyderabad High Court made an attempt to out out those

objectionable portions and rewrite the Regulation Without

them in Abdur Rahim & others V. Joseph A. Pinto & others

(1), but that can only be done if it is possible -to sever

the bad from the good in such a way as to leave the Act a

workable whole so that on a fair review of the whole matter

it can be assumed that the legislature would have enacted

what survives without enacting the part that is ultra vires

at all. That is the test accepted in The State of Bombay v.

F. N. Balsara(2).

It is however difficult to see how this cutting out

process could be made to work. Consider but one feature.

The Regulation prescribes that the proceedings are to

be,summary, though for special reasons (to be recorded in

writing) the warrant procedure may be followed. Which of

these two is to be struck out as bad? Until an actual case

arises and is sent to the Special Tribunal for trial it

would be impossible to say. Further, if we strike out the

portion relating to the summary procedure, then cases of

simple hurt would have to be tried by the more cumbrous

warrant procedure; on the other hand, if we strike out the

clause which covers the warrant procedure then we will get

serious offences which would

(1) A.I.R. 1951 Hyd. II, (2) [1951] S.C R. 682 at 727,

81

622

normally be committed to sessions tried summarily. I cannot

see how the good can be separated from the bad in this

particular case and the Regulation still be left workable.

However, all that is based on the classification

hypothesis of which I am not enamoured. I prefer to found

on the narrower issue, namely, was there discrimination in

fact and did it continue after the Constitution The most

glaring instance of this lies in the fact 'that the

proceedings were conducted in the English language whereas

Urdu is the language of the courts in Hyderabad, at any rate

in practice. One of the appellants knows English but at

least one does not and a third has only a smattering

knowledge of it. That course would not have mattered much

had the court language in that area been English, for in

that event there would have been no discrimination. It

would only have been one of the accidents of fortune which

befall many. an accused who is tried in an area where the

court language is one which he does not understand. But

when the de facto language of the courts is his own mother

tongue and all other Urdu knowing persons in that area are

tried in the language which they and he understand and he

alone is discriminated against by being pent for trial to a

court whose proceedings are conducted in a language which he

does not know, or, at best, understands but imperfectly, the

matter assumes a very different hue.

In Hyderabad the court language in practice is Urdu and

so great is the importance attached to it that neither

judges nor counsel are permitted to function there unless

they know that language. Indeed, the matter was carried to

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such length is that' one of the appellant was refused the

services of an eminent King's Counsel from England on the

ground that the latter did not know the court language Urdu.

But at the same time the appellants were tried in a language

which the gentleman in question did know and which was the

language of the Special Tribunal. And an even greater

anomaly, the President of the Tribunal himself did not know

Urdu. I am -unable to brush this

623

aside as a matter of no consequence. It is to my mind

material and vital and cuts at the root of this,, trial. I

find it impossible to say that this is not discrimination

within the meaning of article 14 and it is patent that the

discrimination continued after the Constitution.

I still prefer to base broadly on what I called, in an

earlier case, the social conscience of a sovereign

democratic republic as seen through Indian eyes and as,

reflected in the Constitution of India. The judges of the

land are the keepers and interpreters of that conscience

even as the Lord Chancellor was, and in theory still is, the

keeper of the King's conscience in England. I can find no

more difficulty in determining a case along these lines than

do judges and juries who are called upon to apply the

standards of a reasonable man to a given base where that is

required. In my view, there is something fundamentally

wrong in guaranteeing a man equality before the law with one

hand and with the other permitting an arbitrary

discrimination which could not have been supported, after

the Constitution to continue after it just because it had

commenced at an earlier date. There is to my mind something

grotesquely fantastic in insisting on Urdu knowing counsel

in a tribunal whose proceedings are to be conducted in

English and at the same time rigidly excluding counsel who

do not know Urdu and who do know English. It may be that

these are the rules of the Hyderabad Bar but that is based

on the assumption that the language of the courts is Urdu If

the one rule can be waived or relaxed or altered, so also

can the other. To apply both at the same time makes, in my

judgment, for the type of discrimination which article 14

forbids, for either Urdu has special significance in this

area or it is an unimportant fact. If it is material and

important, then we have grave discrimination. If it is not,

then again there is grave discrimination in not allowing the

accused counsel of his choice which others similarly

situated could claim, on the sole. ground that the counsel

chosen knows

624

the language in which the, proceedings are to be

conducted and does not know another language which is not

the court language for the purposes of this special trial.

I must not be understood to say that the appellants were

treated unfairly by the Tribunal. As far as I can see, much

was stretched in their favour, and in the matter of counsel

to defend them funds were provided and spent by the State on

a lavish-scale. I have little doubt that the conduct of the

appellants in discharging those counsel after they had been

generously paid by the State evidences their bad faith and

their desire to thwart a fair and proper trial, fair and

proper that is to say before the Constitution. But the

issue before us is not fairness but discrimination within

the meaning of article 14. The money and time which would

be wasted were my view to prevail would be unfortunate but

all that is part of the price to be paid for the maintenance

of the principles which our Constitution guaranteed part of

the price of democracy.

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As regards the question of revision and confirmation of

sentences and transfer and bail, it is in my opinion no

answer to say that the sentences imposed would not have been

subject to confirmation even in an ordinary court and that

there were no applications for transfer or revision or bail

after the Constitution. The point is that the Regulation

forbids all this and, therefore, in the words of the

majority decision in Lachmandas's case(1), the Special

Judge's jurisdiction came to an end. The discrimination

lies in the trial itself, or the continuation of it, and the

accused does not have to wait till its conclusion on the

ground that he might after all be acquitted or granted a

nonappealable sentence. His right is to complain of a

trial, or a material portion of it, by a tribunal which,

according to the decision in Lachmandas's case(1), ceases to

have jurisdiction after the Constitution.

In my opinion, all these convictions should be set aside

and a fresh trial in accordance with the

(1) [1952] S.C.R. 710.

625

normal procedure of the State in that area should be

ordered.

GHULAM HASAN J.-The question which is canvassed before

us on behalf of the petitioner Syed Qasim Razvi raises the

constitutional point whether his trial and conviction by the

Special Tribunal IV at Trimulgherry, Secunderabad, in

respect of certain offences alleged to have been committed

by him are void as being in contravention of articles 14 and

21, read with article 13 of the Constitution. The Special

Tribunal consisting of a President and two members was

constituted by the Military Governor of Hyderabad under

section 3 of the Special Tribunal Regulation v of 1358-Fasli

It is common knowledge that the police action took place in

Hyderabad on September 13, 1948. The Regulation in question

was promulgated by the Military Governor on October 30,

1948.

An armed dacoity was committed on January 10, 1948,

between 5 p.m. and 7-30 p.m., at Bibinagar village and its

Railway Station, about 21 miles from Hyderabad, and Syed

Qasim Razvi and his co-accused were charged with the

offences of rioting, rioting with deadly weapons, dacoity,

arson, causing grievous injuries to persons and destroying

evidence of the crime. The First Information Report of the

occurrence was made on the following day but the chargesheet

was not submitted to the Special Tribunal till August 28,

1949, as some of the accused were absconding and the

investigation had to be carried out under difficult

circumstances. On October 6, 1949 the Military Governor

acting under section 3 of the Regulation directed that the

Tribunal shall try the offences specified as Serial No.1 &

2. Serial No.1 mentioned the offence of murder of one

Shoebulla. Khan alleged to have been committed by Syed

Qasim Razvi and his co-accused and Serial No,. 2 referred to

the offences in respect of the Bibinagar dacoity against

Syed Qasim Razvi and 20 other persons. We are not concerned

with the first incident

626

and we understand that Razvi was acquitted of the charge of

murder.

In the second case forty prosecution witnesses were

examined-in-chief up to November 21, 1949, eighteen were

cross-examined between this date and January 26, 1950, and

22 were cross-examined after that date. Razvi was examined

on November 29, 1949, and again on February 26, 1950. The

charges were framed on December 5, 1949. He was convicted

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on September 11, 1950, and was sentenced to 7 years'

rigorous imprisonment under section 330 of the Hyderabad

Penal code, corresponding to section 395 of the Indian Penal

Code, and 2 years' rigorous imprisonment under each of the

following sections, section 124 corresponding to section

148, Indian Penal Code, section 177 corresponding to section

201, Indian Penal Code, and section 177/66 corresponding to

Section 109, Indian Penal Code, the sentences to run

concurrently. Similar sentences were passed against the co-

accused. Their convictions and sentences we Ire upheld on

appeal by the High Court at Hyderabad on, April 13, 1951.

In August, 1951, they obtained leave to appeal to this court

under articles 132 and 134 of the Constitution.

While these appeals were pending and the record was in

course of preparation, Razvi filed a petition under article

32 of the Constitution praying for the issue of a writ of

certiorari calling for the record of the High Court and

quashing the orders dated September 11, 1950, and April 13,

1951, and ordering his release. The petition challenges

Regulation V of 1358-Fasli, as having become void after the

26th of January, 1950, as the procedure laid down by the

Regulation is discriminatory against the petitioner and

violates his fundamental right under article 14 of the

Constitution. The petition also challenges the continuation

of the trial of the petitioner under the provisions of, the

said Regulation after the 26th of January, 1950, as being an

infringement of his rights under articles 14 and 21 of the

Constitution. The conviction and sentence are sought to be

set

627

aside as being illegal and without jurisdiction. This

contention is also raised in the appeal but as the appeal is

not ready, we were invited by Mr. Peerbhoy, counsel for the

petitioner, to decide the question of the validity of the

impugned Regulation without waiting for the printing of the

record. Accordingly we decided to hear the question of

jurisdiction as a preliminary point in the appeal.

Mr. Peerbhoy counsel for the petitioner, before giving us

a detailed list of the discriminatory features in the

impugned Regulation attacked the Regulation as being without

a preamble specifying the objects of the Regulation such as

promotion of speedy trial, maintenance of public order,

safety of the State etc. which form a common feature of

Security Acts and Regulations. This defect need not be

fatal, for it is possible to gather the object of the

Regulation from its provisions considered in the light of

the surrounding circumstances. There is little doubt that

in view of the disturbed conditions prevailing in the State

at the time, the commission of numerous offences and the

threat to commit further acts of violence, the Military

Governor may well have been advised to simplify and shorten

the procedure for trial of offenders so as to bring them to

speedy justice. The appointment of Special Judges or

Special Tribunals was conceived in the same spirit, i.e., to

expedite the disposal of cases, so that justice may not be

delayed.

By section 3 of the Regulation it was provided that the

Military Governor " may by general or special order direct

that the special Tribunal shall try any offence whether

committed before or After the-commencement of the

Regulation, or any class of offences and may by any such

order direct the transfer to a special Tribunal of any

particular case from any other - special Tribunal or any

other Criminal Court or direct the transfer from a special

Tribunal of any particular case to any other Criminal

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Court.' It is contended not without force that no

notification was issued in pursuance of section 3 as to what

offence or

628

class of offences shall be tried by the Tribunal. The

petitioner,It is urged, would have had,no grievance if a

certain, class of offences in the State or in any particular

portion thereof, committed by all and sundry, were with a

view to expeditious disposal tried by a Special Tribunal,

but the perticular case of the petitioner was alone singled

out for trial by the Special Tribunal, while all offences,

irrespective of their nature or gravity committed in

Bibinagar village before or after the occurrence, were tried

in the ordinary courts according to the normal procedure,

laid down in the Hyderabad Criminal Procedure Code. There

was no basis, much less any rational basis for the

exceptional treatment. The trial of the petitioner by the

Tribunal, according to a special procedure, was, it was

contended, discriminatory, and took away his right of

equality before the law. It is further objected that the

Regulation prescribed no qualifications for the me members

of the Tribunal and their appointment was left to the

unfettered discretion of the Military Governor. No

procedure requiring any academic qualifications and legal

training has been referred to and this point may be regarded

as unsubstantial. The Tribunal constitute for the trial of

the present case may not perhaps be open to the criticism

that fit and proper persons were not appointed except the

fact that the President was not acquainted with the

language of the accused, but there was nothing to prevent

the Military Governor from appointing any one who lacked

proper qualifications. His power of appointment was not

circumscribed by any restrictions and it would be Po answer

to say that he did not abuse this power.

Mr. Peerbhoy attacked the following provisions of the

Regulation as discriminatory.

1. The right of the Special Tribunal to take cognizance of

offences without the accused being committed to it for

trial.

2. There is no provision that the trial shall be held

with the aid of jury or with assessors

629

3. English shall be the language of the Tribunal.

4. Evidence shall not be taken down at length, but only a

memorandum of the substance of the evidence shall be

prepared.

5. The Tribunal shall not be bound to adjourn the case.

6. There is no provision for a de novo trial by reason of

change in personnel.

7. A. Special Tribunal is entitled to follow summary

procedure but it may follow the procedure prescribed for the

trial of warrant cases.

8. Trial is permitted in the absence of the accused where

such absence is due to his behaviour in or outside court for

the purpose of impeding the course of justice.

9. Right to bail or habeas corpus is taken away.

10. There is no right to re-cross-examine the prosecution

witnesses before the accused opens his defence.

11. The Special Tribunal is treated under the Regulation as

a Court of Sessions exercising original jurisdiction, hence

there is only one right of appeal to the High Court. If the

case had been tried by a Magistrate of the 1st Class or a

District Magistrate, a second appeal would have been

competent where the sentence did not exceed four years.

12. There is no right of transfer.

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13. There is no right of revision.

14. There is no right of confirmation of sentence

which existed under the Hyderabad Code in favour of the High

Court, the Government and the Nizam in certain cases.

Without minimizing the importance of the other

provisions, I shall prefer to deal with the more sub.

stantial ones given as Nos. 1, 2, 3, 4, 6, 9, 12, 13 and 14.

1. The relevant provision of the Hyderabad Criminal

Procedure Code hereinafter called the Code

82

630

is section 267A, which unlike Chapter XVIII of the Indian

Code does not make it obligatory that every case triable by

a Court of Sessions should be committed to it by a

Magistrate. Direct commitment to the Sessions without a

preliminary inquiry is, however, permissible where the

accused himself does not want such an inquiry, or where on

being questioned, he admits facts which constitute an

offence fit to be tried by a Sessions Court. Barring these

two cases the Magistrate without recording any evidence or

after recording some portion of the evidence may, if

satisfied, that there are sufficient grounds for committing

the case to the Sessions, commit the accused Section 4 (1)

of the Regulation definitely excludes the commitment

proceedings.

2. Section 414 of the Code empowers the Government by

a notification to direct that any particular class of cases

shall be tried in the High Court by Jury and in any Court of

Sessions either by Jury or with the aid of assessors. This

power is absent in the Regulation. It is true that there is

no general procedure of trial by Jury or with the aid of

assessors in the State, but it is open to the Government to

exercise its powers and direct that any particular class of

cases shall be so tried.

3. By section 286 the evidence of witnesses is to be

recorded in the language of the court and by sections 294

and 295 the judgment of the court shall be written and

pronounced in the language of the court. Neither party

referred to any provision of the Code showing what was the

language of the court, but Mr. Peerbhoy stated that it is

Urdu. He said that the State laws are enacted in Urdu, the

arguments are addressed in Urdu, judgments are given in Urdu

and the reports of decisions are also published in Urdu.

The Code which was referred to us was in Urdu but the only

section which specifically refers to Urdu is section 230

which requires that every charge which is framed shall be

written in Urdu. It is not improbable that the court

language is Urdu which was the language of the ruling class,

though

631

it may not be spoken by the majority of the people in the

State.

4.Section 286 of the Code requires that the evidence of

each witness shall be taken down in the language of the

court in the form of a continuous statement, whereas section

4, sub-section (2) of the Regulation states that the Special

Tribunal need not take down the evidence at length but it

shall take down the substance of what each witness deposes.

Power is, however, given to the Tribunal to direct in

respect of any trial that the evidence shall be taken down

at length. It is obvious that while the Code lays down

peremptorily that the evidence shall be recorded at length,

the Regulation provides to the contrary and makes it

directory in respect of certain

trials only.

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6. Section 281 of the Code corresponding to section 350

of the Indian Code provides for the right of a de novo trial

at the instance of the accused, in cases where the

Magistrate having heard and recorded the whole or any part

of the evidence, in any case ceases to exercise jurisdiction

therein and is succeeded by another Magistrate. The

Magistrate has, however, got the power to reject the

accused's demand either wholly or partly but in that case he

is. bound to record reasons. It is true that the right to

demand a de novo trial is subject to the Magistrate's power

of refusal, coupled with the obligation to record reasons,

but the language of the Code appears to suggest that such a

refusal should be an exception rather than the rule. It is

pointed out by the learned Advocate-General for the State

that the question of a de novo trial did not arise in point

of fact but the possibility of a vacancy arising by reason

of circumstances beyond human control could not be elimina-

ted.

9. Under section 468 of the Code any person accused of a

non-bailable offence may be released on bail, unless there

appears reasonable ground for believing that he has been

guilty of an offence

punishable with death or transportation for life. The right

to ask for bail is excluded by section 6, subsection (2) of

the Regulation which clearly- says that no court shall have

any jurisdiction of any kind in respect of any proceedings

before a Special Tribunal.

12. Chapter XXXVIII of the Code deals with the power of

transfer and section 494 confers a wide power upon the High

Court to transfer cases from one court to another, whereas

under section 3 of the Regulation, the Military Governor

alone has got the power of transfer. That power is

apparently to be exercised suo motu, but an accused has no

right to move for transfer.

13. Section 360 of the Code confers the power of revision

upon the High Court, the Court of Sessions and the District

Magistrate against the orders of the subordinate courts, but

section 7, sub-section (2) of the Regulation excludes the

right of revision.

14.Section 20 of the Code lays down that no sentence

passed by a Sessions Judge shall be enforced, unless it is

confirmed

(a) in the case of a sentence of imprisonment exceeding

ten years, by the High Court;

(b) in the case of life imprisonment, by the Government

and

(c)in the case of death by his Exalted Highness the Nizam

Section 7, sub-section (2) of the Regulation, excludes the

power of confirmation by any authority whatsoever.

Mr. Peerbhoy, counsel for the petitioner, strongly relies

upon the case of Lachmandas Kewalram Ahuja v. The State of

Bombay (1) in support of his contention that the impugned

Regulation is void under article 14 and submits that the

case should be decided in accordance with the principles

laid down by the majority in that case. Fortunately for me

it is not necessary to attempt an exposition of the

principles which should regulate the decision of a case like

the

(1) (1952] S.C.R. 710.

633

present, as the matter has been exhaustively dealt with in

The State of West Bengal v. Anwar Ali It Sarkar (1) where

my Lord the Chief Justice and my other learned brothers in

this Bench have expressed views separately and collectively

on the exact meaning and scope of article 14. So far as I

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am concerned, the majority view expressed by Mr. Justice Das

in the Bombay case with which Mukherjea, Chandrasekhara

Aiyar and Bose JJ. concurred, ray Lord the Chief Justice

dissenting, is conclusive.

I shall take up Lachmandas's case(2) first. It appears

that a broad daylight robbery took place at Ahmedabad in

which a driver and a peon of the Central Bank were shot

dead on May 26th, 1949, while they were carrying bank money

in a motorvan. By section 12 of the Bombay Public Safety

Measures Act, 1947, which was in the same terms as section 5

(1) of the West Bengal Act and section 11 of the Saurashtra

Ordinance it was provided that "a Special Judge shall try

such offences or class of offences or such cases or class of

cases as the Provincial Government may by general or special

order in writing direct." Section 10 empowered the

Government by notification in the Official Gazette to

constitute special courts of criminal jurisdiction for such

areas as may be specified in the notification. Accordingly

by a notification issued in August, 1949, the State of

Bombay exercising its power under section 11 appointed the

District and Sessions Judge of Ahmedabad as the Special

Judge to try the accused. The charges against the accused

were framed on January 13, 1950, without any committal by

the Magistrate. Seventeen prosecution witnesses were

examined before January 26, 1950, and 45 after that date.

The accused were convicted on March 30, 1950, and sentenced

to death, Their appeal was dismissed by the Bombay High

Court, but they preferred appeals to this court after

obtaining a certificate under article 132 (1) of the

Constitution. The question which arose for consideration

was whether

(1) [1952] S.C.R. 284. (2) [1952] S.C.R. 710.

the Bombay Act or that part of section 12 which

authorises the State Government to direct specific cases to

be tried by a Special Judge appointed under that Act offends

against the equal-protection of law guaranteed by article 14

of the Constitution, and is as such void under article 13 on

the principles laid down by this court in two previous

cases, The State of West Bengal v. Anwar Ali Sarkar (1) and

Kathi Raning Rawat v. The State of Saurashtra (2) Mr.

Justice Das who delivered the judgment of the majority in

which Mahajan, Mukherjea and Chandrasekhara Aiyar, JJ.

concurred answered the question in ,the affirmative and held

that the accused are entitled after the Constitution not to

be discriminated against in the matter of procedure and are

entitled to be tried according to the ordinary law. A

retrial thereupon was ordered. Mr. Justice Das examined the

provisions of the Act in detail, summarising the position at

page 726 as follows:-

"Thus besides providing for enhanced punishment and

whipping the Act eliminates the committal proceedings

(section 13 (1)), permits the Special Judge to record only a

memorandum of the evidence, confers on him a larger power to

refuse to summon a defence witness than what is conferred on

a court by section 257 (1) of the Code of Criminal Procedure

and also deprives the accused of his right to apply for a

transfer or for revision. That these departures from the

ordinary law cause prejudice to persons subjected to the

procedure prescribed by the Act cannot for a moment be

denied. This court has, by its decisions in the State of

West Bengal v. Anwar Ali Sarkar(1) and in Kathi Raning Rawat

v. The State of Saurashtra (2), recognized that article 14

condemns discrimination not only by a substantive law but

also by a law of procedure and that the procedure prescribed

by the corresponding provisions in the West Bengal Special

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Courts Act and the Saurashtra Ordinance which introduced

similar departures from the ordinary law of procedure

constituted

(1) [1952] S.C.R. 284. (2) (1952) S.C.R. 435.

635

a discrimination against persons tried by the Special Judge

according to procedure prescribed -by those pieces of

legislation and finally that, in any event, section 5 (1) of

the West Bengal Act and section 11 of the Saurashtra,

Ordinance, both of which corresponded to section 12 of the

Bombay Public Security Measures Act, in so far as they

authorised the Government to direct specific and particular

'cases' to be tried by the Special Judge, was

unconstitutional and void. In view of the departures from

the ordinary law brought about by the Bombay Public Safety

Measures Act, 1947, which are noted above, it cannot but be

held, on a parity of reasoning, that at any rate section 12

of the Act, in so far as it authorises the Government to

direct particular 'cases' to be tried by a Special Judge, is

also unconstitutional."

Dealing with the argument that the special procedure

prescribed by the impugned Act constitutes a departure from

the ordinary law of procedure and is, in some , important

respects, detrimental to the interest of the persons

subjected to it and as such is discriminatory he observed:-

"The discrimination does not end with the taking of

cognizance of the case by the Special Judge without the case

being committed to him but continues even in subsequent

stages of the proceedings in that the person subjected to it

cannot, even at those subsequent stages, have the benefit of

having the evidence for or against him recorded in extenso,

may not get summons for all witnesses he wishes to examine

in defence only on the ground that the Special Judge does

not consider that such evidence will be material and cannot

exercise his right to apply to a superior court for transfer

of the case even though the Special Judge has exhibited

gross bias against him or to apply for revision of any order

made by the Special Judge. As the Act was valid in its

entirety before the date of the Constitution, that part of

the proceeding before the Special Judge, which, up to that

date, had been regulated by this special procedure cannot be

questioned, however discriminatory it may

636

have been, but if the discriminatory procedure is continued

after the date of the Constitution, surely the accused

person may legitimately ask: Why am I to-day being treated

differently from other persons accused of similar offences

in respect of procedure ?"

After holding that there was no nexus which connected the

basis on which the supposed classification was founded with

the objects of the Act he went on to observe :-

"In the absence of a rational basis of classification, as

explained above, there can be no justification, after the

advent of the Constitution, for depriving the appellants of

the right to move the Court for transfer or for revision or

to obtain process for the attendance of defence witnesses or

of having the evidence of the witnesses recorded as in an

ordinary trial 'Which is available to other persons accused

of similar offences and prosecuted according to the ordinary

procedure laid down in the Code of Criminal Procedure. It

is, therefore, clear that in this case the discrimination

continued after the Constitution came into force and such

continuation of the application of the discriminatory

procedure to their cases after the date of the Constitution

constituted a breach of their fundamental right guaranteed

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by article 14 and being inconsistent with the provisions of

that article the special procedure became void under article

13 and as there is no vested right or liability in matters

of procedure, the appellants are entitled to be tried

according to the ordinary procedure after the date of the

Constitution. Their complaint is not for something that had

happened before 26th January, 1950, but is for unconstitu-

tional discrimination shown against them since that date.

Indeed in a sense the Special Judge's jurisdiction came

to an end, for he was enjoined to proceed only according to

the special procedure, and that procedure, having become

void as stated I above he could not

637

proceed at all as a Judge of a Special Court constituted

under the impugned Act....... The point for decision now is

whether the continuation of -the procedure by the Act after

the Constitution came into force operates to the prejudice

of the appellants and, as such, offends against their newly

acquired fundamental right of equal protection of law

guaranteed by article 14. The Constitution has no

retrospective operation to invalidate that part of the

proceedings that has already been gone through but the

Constitution does not permit the special procedure to stand

in the way of the exercise or enjoyment of post-cons-

titutional rights and must, therefore, strike down the

discriminatory procedure if it is sought to be adopted after

the Constitution came into operation."

The view taken by my Lord the Chief Justice was that the

provisions of the Constitution relating to fundamental

rights have no retrospective operation and, do not affect

the criminal prosecution commenced before the Constitution

came into: force even though section 12 of the Bombay Act is

held to be discriminatory and void.

I have given not without reluctance copious quotations

from the majority judgment because its meaning has been the

subject of much controversy before us. While on' the one

hand, Mr. Peerbhoy contends that the Act was condemned as

bad by the majority because of the discriminatory provisions

appearing on the face of it and the question whether such

provisions were applied in fact to the accused of that case

after the coming into force of the Constitution was

considered entirely irrelevant the learned Advocate-General

urges that the court did not apply its mind to the question

whether the Act should be declared void even when the

discriminatory provisions are not applied. The whole trend

and the reasoning of the judgment to my mind point to. the

conclusion that the court did not consider it necessary to

go into the question whether the discriminatory provisions

were applied as th at question was irrelevant in view of

their finding that the Act became

638

void after the coming into force of the Constitution on the

simple ground that it contained discriminatory provisions on

the face of it-. There were four identical features which

are common in the two cases, namely absence of committal

proceedings, power to record only a memorandum of the

evidence, absence of a right to apply for transfer or for

revision. It is not easy to see how the right to apply for

a transfer or for revision could be exercised under the

Regulation after the 26th of January. During the course of

cross-examination of 22 witnesses if the Tribunal overruled

the objection of the accused or passed any adverse order,

the accused could not challenge it by way of revision, nor

if it showed any bias in the recording of the evidence,

could the accused apply for transfer. Indeed there is

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evidence that an order of the Tribunal dated the 15th of

December, 1949, was carried in revision to the High Court,

but the revision was dismissed on February 27, 1950. The

office, it appears, noted that under section 7, clause 2 of

the Regulation there could not be any revision but the

learned Chief Justice in rejecting the revision petition

merely said that be saw no reason to interfere "at this

stage". I do not think that the order of rejection meant

that the stage of interference was not appropriate and that

he would have the right to interfere at a later stage, say

at the time of the appeal. The learned Chief Justice could

not have been unaware of the fact that no revision was

competent against an order of the Tribunal under the

Regulation. It is significant that this order was passed

after the coming into force of the Constitution. Similarly

if the accused had asked for bail, and it had been

refused,he could not have been able successfully to move

the High Court in revision against the order of refusal. It

is obvious therefore that just as in Lachmandas's case (1)

the procedure under the Regulation could not be continued

without eliminating the right to apply for transfer or for

revision, in the same

(1) [1952] S.C.R. 284.

639

way the trial of the petitioner could not go on without

these discriminatory provisions after the 26th of January.

Again the right to confirmation of the sentences passed by

the Tribunal could not be given effect to as the Regulation

definitely negatived such a right. Whether in the events

that happened the question of confirmation did not arise is

besides the point. It could well have arisen if a sentence

exceeding ten years bad been passed by the Tribunal. I can

see no real ground for any distinction between Lachmandas's

case(1) and the present case. My learned brothers are

certainly in a better position to interpret the decision in

Lachmandas's case (1) and to say whether their intention was

not to declare the Act bad, whether or not its

discriminatory provisions were applied in fact. It is

impossible for me to go behind the actual words used in the

decision and my conclusion is based entirely upon the

language and the reasoning adopted in that case.

The conclusion I have arrived at is fortified by the

observations of Mr. Justice Mukherjes in Anwar Ali Sarkar's

case("), at page 331, " but when the statute itself makes a

discrimination without any proper or reasonable basis, the

statute would be invalidated for being in conflict with the

equal protection clause, and the question as to how it is

actually worked out may not necessarily be a material fact

for consideration." My learned brother Mr. Justice Chandra-

sekhara Aiyar also emphasised in that case " that the

question which falls to be considered under article 14 is

whether the legislation is discriminatory in its nature and

this has to be determined not so much by its purpose or

objects but by its effects" (page 349).

It will be convenient to refer to the West Bengal case(")

at this stage. In this case the accused who were charged

with various offences committed by them in the course of an

armed raid on the Jessop Factory at Dum Dum were convicted

by a Special Court appointed under section 5 (1) of the West

Bengal

(1) [1952] S.C.R. 710. (2) [1952] S.C.R. 284.

640

Special Courts Act No. X of 1950. The Full Bench of the

Calcutta High Court which was moved by the accused under

article 226 for the issue of a writ of certiorari to quash

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the conviction and the sentence held that the Special Court

had no jurisdiction to try the case, as section 5 (1) of the

Act was void under article 32, as it denied to the accused

the equal protection of the laws enjoined by article 14. On

appeal by the State the majority of six learned Judges of

this court upheld the view, my Lord the Chief Justice

dissenting. The observations of the learned Judges

constituting the majority deal effectively with the

contentions raised in the present case and may best be

reproduced in their own words:-

" Mahajan J -That the Special Act lays down substantially

different rules for trial of offences and cases than laid

down in the general law of the land, i.e., the Code of

Criminal Procedure, cannot be seriously denied. It short-

circuits that procedure in material particulars..........

Not only does the special law deprive them of the

safeguard of the committal procedure and of the trial with

the help of jury or assessors, but it also deprives them of

the right of a de novo trial in case of transfer and makes

them liable for conviction and punishment for major offences

other than those for which they may have been charged or

tried....... To a certain extent the 'remedies to which an

accused person is entitled for redress in the higher courts

have been cut down. Even if it be said that the statute on

the face of it is not discriminatory, it is so in its effect

and operation, inasmuch as it vests in the executive

government unregulated official discretion, and therefore

has to be adjudged unconstitutional."

`` Mukherjea J.-I agree with the Attorney-General that if

the differences are not material, there may not be any

discrimination in the proper sense of the word and minor

deviations from the general standard might not amount to

denial of equal rights. I find

641

it difficult, however, to hold that the difference in the

procedure that has been introduced by the West Bengal

Special Courts Act is of a minor or unsubstantial character

which has not - prejudiced the interest of the accused.

The first difference is that made in section 6 of the Act

which lays down that the Special Court may take cognizance

of an offence without the accused being committed to it for

trial, and that in trying the accused it has to follow the

procedure for trial) of warrant cases by Magistrates. It is

urged by the Attorney-General that the elimination of the

committal proceedings is a matter of no importance and that

the warrant procedure, which the Special Court has got to

follow, affords a scope f or a. preliminary examination of

the evidence against the accused before a charge is

framed.......

Under section 350 of the Criminal Procedure Code, when a

case after being heard in part goes for disposal before

another Magistrate, the accused has the right to demand,

before the second Magistrate commences the proceedings, that

the witnesses already examined should be re-examined and re-

heard. This right has been taken away from the accused in

cases *here a case is transferred from one Special Court to

another under the provision of section 7 of the Special

Courts Act. Further the right of revision to the High Court

does not exist at all under the new procedure, although the

rights under the Constitution of India are retained. It has

been pointed out and quite correctly by one of the learned

counsel for respondents that an application for bail cannot

be made before the High Court on behalf of an accused after

the Special Court has refused bail. These and other

provisions of the Act make it clear that the rights of the

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accused have been curtailed in a substantial manner by the

impugned legislation ; and if the rights are curtailed only

in certain cases and not in others, even though the

circumstances in the latter cases., are the same,

&,,question of discrimination may certainly arise....... As

I have said already

642

in the present case the discrimination &rises on the terms

of the Act itself. The fact that it gives unrestrained

power to the State Government to select in any way it likes

the particular cases or offences which should go to a

Special Tribunal and withdraw in such cases the protection

which the accused normally enjoy under the criminal law of

the country, is on the face of it discriminatory."

"Das J.-The elimination of the committal proceedings and

of trial by jury (section 6), the taking away of the right

to a de novo trial on transfer (section 7), the vesting of

discretion in the Special Court to refuse to ) summon a

defence witness if it be satisfied that his evidence will

not be material (section 8), the liability to be convicted

of an offence higher than that for which the accused was

sent up for trial under the Act (section 13), the exclusion

of interference of other-courts by way of revision or

transfer or under section 491 of the Code (section 16) &re

some of the glaring instances of inequality brought about by

the impugned Act.

" Chandrasekhara Aiyar J.-Preliminary inquiry before

committal to the sessions, trial by jury or with the aid of

assessors, the right of a de novo trial on transfer of a

case from one court to another, have been taken away from

the accused who are to be tried by a Special Court."

"Bose J.-We find men accused of heinous crimes called upon

to answer for their lives and liberties. We find them

picked out from their fellows, and however much the new

procedure may give them a few crumbs of advantage, in the

bulk they are deprived of substantial and valuable

privileges of defence which, others similarly charged, are

able to claim".

I do not propose to go into the question that dis-

criminatory provisions were not as a matter of fact applied

to the petitioner's case as contended for by the learned

Advocate-General for the State. I have already observed

that the discriminatory provisions

643

stood in the way of the petitioner even after the 26th of

January and prevented him from exercising the right to apply

for bail, for transfer or for 'revision and this in my

opinion is quite sufficient for holding that the Regulation

violates article 14 and is, therefore, void under article

13.

I do not think that the discriminatory provisions are

severable from the rest of the Regulation. Indeed it is

doubtful whether the Military Governor would have

promulgated the Regulation in the truncated form if these

provisions are taken out. For us to do so would be to

assume the power to legislate and to frame a new Regulation

in place of the one promulgated by the Military Governor.

Having regard to the scheme and objects underlying the

Regulation, a severance of the discriminatory provisions

would affect the integrity of the Regulation itself. The

object of expediting the trial will be defeated if the

discriminatory provisions are eliminated. The Regulation

stands as a whole and falls if those provisions are

eliminated. In Attorney-General,for Alberta v. Attorney-

General for Canada(1) the Privy Council had to deal with two

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parts of the Act of the Alberta Bill of Rights Act, 1946,

Part I of which declared certain existing rights of Alberta

citizenship described therein and Part II provided a method

of making effective the provisions of Part I by conferring

certain powers on the province. It was held that Part II

was ultra vires being beyond the powers of the provincial

legislature to enact; that Part I of the Act was not

severable, that the whole Act hung together and therefore

the whole was invalid.

I hold that the trial held under the Regulation is void

under article 13, read with articles 14 and 21 of the

Constitution, and the conviction and sentence of the

petitioner should be set aside. Following the view taken in

Lachmandas's case(1) I direct that the petitioner shall be

tried according to law.

This order will govern petition No. 368 relating to the

other petitioners.

(1) [1947] A.C. 503. (2) [1952] S.C.R 710.

644

ORDER.

BY THE COURT:-As the Constitutional issues. raised in the

petitions have also been raised in the appeals preferred by

the petitioners they have been dealt with in the appeals by

consent of parties, and the petitions are dismissed. The

constitutional points in the appeals having been decided

against the appellant,; by the majority the appeals will be

heard on other points when the appeals are ready for

hearing.

Petitions dismissed.

Agent for the petitioners/appellants: Rajinder Narain.

Agent for the respondent,: G. H. Rajadhyaksha.