Janardan Reddy And Others vs The State

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 14 December 1950

Coram: Hiralal J. Kania, Saiyid Fazal Ali, B.K. Mukherjea, N. Chandrasekhara Aiyar

In this case the Court recorded that the petitioners Janardan Reddy and others were convicted and sentenced to death by a special tribunal of the Hyderabad State. They appealed to the High Court of Hyderabad, which dismissed the appeals. On 21 January 1950 the petitioners applied to the High Court for leave to appeal to the Judicial Committee of Hyderabad against the High Court’s judgments. On 26 January 1950 the Constitution of India came into force, bringing Hyderabad within the Union of India; consequently the Judicial Committee of Hyderabad ceased to exist and all pending appeals and other proceedings before that Committee were transferred to the Supreme Court of India. The petitioners amended their applications so as to invoke article 134 of the Constitution, but the High Court dismissed them on the ground that no such petition fell within article 134 and also rejected them on their merits. The petitioners then filed an application before the Supreme Court under article 136 seeking special leave to appeal. The Court examined the scope of article 136, which empowers the Supreme Court to grant special leave to appeal only from judgments, decrees, sentences or orders made by “any court or tribunal in the territory of India.” The Court observed that when the Hyderabad High Court delivered the judgments that were the subject of the petitions, Hyderabad was not yet a territory of India; therefore the Supreme Court lacked jurisdiction to entertain a special leave application. The Court further held that article 136 could not be construed to apply retrospectively to judgments pronounced before Hyderabad became part of India, nor could it create a right of appeal by implication merely because the petitioners had previously possessed a right to appeal to the Judicial Committee of Hyderabad and that right was lost with the abolition of that Committee without a provision for appeal to the Supreme Court. The judgment was delivered in the criminal appellate jurisdiction, relating to Criminal Miscellaneous Petitions Nos. 71-73 of 1950. The bench comprised Chief Justice Hiralal J. Kania, Justice Saiyid Fazal Ali, Justice B.K. Mukherjea and Justice N. Chandrasekhara Aiyar. The case is reported as 1951 AIR 124 and 1950 SCR 940, with additional citations as listed.

In this case, three petitions were filed under article 136 of the Constitution seeking special leave to appeal to the Supreme Court from the judgments of the High Court of Judicature at Hyderabad dated 12 December, 13 December and 14 December 1949. Those High Court judgments had dismissed the appeals that the petitioners had filed against orders of the Special Tribunal of Hyderabad which had convicted them of murder and imposed the death penalty. The record showed that the petitioners were alleged to be members of the Communist Party who were determined to overthrow the existing government of Hyderabad by violent means and to establish a communist regime. It was further alleged that the accused had demanded contributions for their communist organization and that villagers who refused to comply were abducted on 21 September 1948 and subsequently murdered. Consequently, the accused were charged with several offences, including murder, before a special tribunal constituted under regulations issued by the Military Governor under the authority of H E H the Nizam. By separate judgments dated 9 August, 13 August and 14 August 1949, the tribunal convicted the petitioners and sentenced each of them to death.

The petitioners then appealed those convictions to the Hyderabad High Court. By its judgments dated 12, 13 and 14 December 1949, the High Court dismissed each of the three appeals. After those dismissals, the petitioners applied to the High Court on 21 January 1950 for a certificate authorizing an appeal to the Judicial Committee of the Hyderabad State. In the meantime, H E H the Nizam had issued a firman on 23 November 1949 declaring that the proposed Constitution of India was suitable for the governance of Hyderabad and that he accepted it as the Constitution of Hyderabad State, thereby placing Hyderabad among the Part B States listed in the First Schedule. On 26 January 1950, the Constitution of India became operative throughout the Union of India and the Part B States.

Initially, the petitioners had filed applications for a certificate to appeal to the Judicial Committee of the Privy Council of Hyderabad State. By order of the Court, those applications were amended and re-filed as petitions under article 134 of the Constitution of India. A division bench of the Hyderabad High Court considered the amended petitions and dismissed them, holding that no such petitions could be brought under article 134 and further finding that, on the merits, the petitioners had not made out a case for the issuance of a certificate. Having been rejected under article 134, the petitioners now presented their three petitions before this Court under article 136 of the Constitution, seeking special leave to appeal from the High Court judgments dated 12, 13 and 14 December 1949.

The petitioners sought special leave to appeal to the Supreme Court of India from three judgments of the Hyderabad High Court dated 12 December 1949, 13 December 1949 and 14 December 1949. The Court identified two issues for resolution. The first issue concerned whether, given the factual matrix, an application invoking article 136 of the Constitution could be properly presented before the Supreme Court. The second issue required an examination of the factual record to decide, assuming the Supreme Court possessed jurisdiction to entertain the petitions, whether special leave ought to be granted.

The resolution of the first issue rested upon the interpretation of the constitutional provisions that governed the transition of appellate authority at the moment the Constitution came into force. Article 374(4) provided that, from the commencement of the Constitution, the jurisdiction of the body that had functioned as the Privy Council for a Part B State, as listed in the First Schedule, ceased with respect to hearing and disposing of appeals or petitions arising from any judgment, decree or order of any court situated in that State. Consequently, all appeals and other proceedings that were pending before that authority at the moment of commencement were transferred to the Supreme Court and were to be disposed of by it. This clause therefore terminated the jurisdiction of the Hyderabad Privy Council, and, once the Constitution became operative, that institution and its powers were wholly extinguished.

Applying these provisions to the present facts, the Court observed that no appeal or other proceeding concerning the three Hyderabad High Court judgments was pending before the Hyderabad Privy Council at the time of its abolition. Accordingly, there was nothing to be transferred to the Supreme Court by operation of article 374(4). The petitioners contended that on 25 January 1950 they possessed a right to approach the Hyderabad High Court for a certificate that would permit an appeal to the Hyderabad Privy Council, and that such petitions were indeed pending on that date. They argued that a right to appeal existing on 25 January 1950 could not be implicitly taken away merely because the Constitution of India became applicable to Hyderabad. The petitioners further asserted that, with respect to criminal convictions, every individual who either held a right of appeal, had time to file a certificate application, or whose certificate petitions were pending before the Hyderabad High Court, would be deprived of that right if article 136 were not construed to provide a comparable right of appeal to the Supreme Court. The Attorney-General, representing the State, warned that a liberal construction of article 136 would not only enable the petitioners to obtain leave but would also generate a plethora of new rights. He cautioned that such expansive rights would arise in both criminal and civil matters, thereby opening the door to numerous additional applications under article 136.

It was observed that the power to apply for special leave under article 136 could be exercised without any restriction on the time within which the application was filed, which meant that even very old judgments could be reopened for scrutiny. Furthermore, a broader interpretation of article 136 would permit appeals from judgments that had become final in those States where no court such as the Privy Council existed to entertain appeals from the decisions of their High Courts, even though no such statutory avenue of appeal was present. The petitioners argued that, on the ground of convenience, the balance, if any, was against their contentions. The opposing side, however, vehemently maintained that this approach was fundamentally incorrect. They argued that constitutional provisions must be interpreted according to their plain and natural meaning and that considerations of hardship should not influence the ordinary construction of the articles. They warned that allowing difficult cases to shape the law would lead to undesirable legal developments. The Court agreed with the latter position, finding the Attorney-General’s argument persuasive. It held that hardship could not and should not affect the true meaning of the words used in the Constitution, and therefore the articles should be approached without regard to such considerations.

To determine whether, on the facts of the present case, the Supreme Court possessed jurisdiction to grant special leave, the Court confined its analysis to articles 133, 134, 135 and 136 of the Constitution. Article 133, in substance, preserved the earlier provisions of the Civil Procedure Code relating to appeals to the Privy Council from High Courts in civil matters. Article 134 provided that an appeal lay to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India, subject to three specified contingencies. The same phrase “in the territory of India” also appeared in article 133. Article 135 dealt with matters to which the provisions of articles 133 or 134 did not apply. It stipulated that, until Parliament enacted a law to the contrary, the Supreme Court would have jurisdiction and powers over any such matter if, immediately before the commencement of the Constitution, the Federal Court had exercised jurisdiction and powers over it under any existing law. This provision was inserted to enable the Supreme Court to assume the jurisdiction formerly enjoyed by the Federal Court in cases that were not covered by articles 133 or 134, particularly where the Federal Court had entertained appeals from High Courts under the previously existing law. In effect, article 135 vested in the Supreme Court the jurisdiction that the Federal Court had exercised under the Abolition of Privy Council Jurisdiction Act.

In 1949, the enactment removed the Privy Council’s authority to hear appeals from High Courts, except for those appeals that had already been pending before the Council on 10 October 1949. Consequently, the legislature had to create a rule for appeals that were either still pending at that date or that fell outside the coverage of articles 133 and 134 of the Constitution. Article 136 of the Constitution of India states, in relevant part, that “Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India.” The Constitution further defines the phrase “territory of India” in article 1 as comprising (a) the territories of the States listed in Parts A, B and C of the First Schedule, (b) the territories mentioned in Part D of the First Schedule, namely the Andaman and Nicobar Islands, and (c) such other territories as may be acquired by the Union.

The Court was asked to decide whether, on the facts before it, the Supreme Court could exercise the power under article 136 to grant special leave to appeal against a judgment, sentence or order that the Hyderabad High Court had rendered before 26 January 1950. It was an essential factual point that the Hyderabad courts were not situated within the “territory of India” when they delivered their judgments on 12 December, 13 December and 14 December 1949. Petitioners argued that interpreting the provision narrowly would deprive them of valuable appellate rights that existed when the Constitution of India was extended to the Hyderabad State by a firman of H.E.H. the Nizam on 26 January 1950. They contended that, although the Constitution did not expressly create a substantive right of appeal, the broad language of article 135 should be read to confer such a right on them. The learned Attorney General countered that legislation is generally prospective rather than retrospective, and that a right of appeal must be conferred by a specific statutory provision; it is not merely a procedural entitlement. Accordingly, in the absence of an express constitutional right of appeal, no such right could be implied to arise merely because the Constitution was applied to Hyderabad State. The Attorney General relied on the Privy Council decisions in Delhi Cloth and General Mills Ltd. v. Income Tax Commissioner, Delhi & Another (54 I.A. 421) and The Colonial Sugar Refining Co. Ltd. v. Irving ([1905] A.C. 369). The Court concurred with the Attorney General’s position, finding no justification to depart from the ordinary rule that legislation operates prospectively, and therefore rejected the petitioners’ claim of an implied appellate right.

In this case the Court observed that the usual practice of construing a statute as applying only prospectively should not be adhered to rigidly. Counsel for the petitioners, identified as Mr Pritt, argued that the State’s interpretation of article 136 required the insertion of the word “hereafter” into the provision, a modification that the Court found to lack any justification. The Court could not accept this argument because, on its face, every statute is prospective, and even without the term “hereafter,” the language of article 136 conveys a prospective meaning.

The Court noted that prior to 26 January 1950 the Government of H.E.H. the Nizam functioned as an independent entity, and no court in India or the Judicial Committee of the Privy Council in London possessed jurisdiction over the decisions of the Hyderabad State Courts. To vest the Supreme Court of India with jurisdiction over decisions of such courts, one would need either an express statutory provision or a provision that necessarily confers such jurisdiction. It was a matter of common agreement that no express provision of that nature existed. Moreover, the Court found no circumstances that, upon reasonable construction, could be treated as implying a right of appeal. In fact, the reference in article 136 to the “territory of India” led to the opposite conclusion. Under the terms of article 136, a court whose judgment or sentence is to be appealed must be a court situated within the territory of India. The territory governed by H.E.H. the Nizam was never part of the territory of India before 26 January 1950; consequently, the judgments and sentences rendered by the High Court of H.E.H. the Nizam on 12 December, 1 December and 14 December 1949 could not be characterised as judgments “passed by a court within the territory of India.” This single ground alone was sufficient for the Court to reject the petitioners’ contention.

Counsel for the petitioners further contended that if the Court’s construction were applied, the territory of the Province of Bombay might also be excluded from the operation of article 136. The Court rejected this line of reasoning. It observed that, before 26 January 1950, a right of appeal from judgments of the Bombay High Court in both civil and criminal matters existed under the Civil Procedure Code, the Criminal Procedure Code and the Letters Patent of that High Court. The right of appeal to the Judicial Committee of the Privy Council that formerly existed was transferred to the Federal Court by appropriate legislation and eventually, by article 135, to the Supreme Court. Therefore, the appropriate interpretation of article 136, as the Court considered it, does not remove the existing right of appeal from the Bombay High Court. While acknowledging that the wording of article 136 may be capable of a broader meaning, the Court held that such a broader right to apply for leave to appeal to the Supreme Court was not intended to affect the pre-existing appellate jurisdiction concerning the Bombay High Court.

In this case the Court observed that article 136 confers a broader right not only to appeal from the decisions of High Courts but also from the orders of other tribunals. The Court held that if such broader right did not exist prior to 26 January 1950, it could be properly regarded as being newly created by article 136, and that interpreting the provision in this manner did not create any inconsistency. The Court then considered the judgments and sentences that had been pronounced by the High Court of Hyderabad in the matters before it. The Court noted that the High Court of Hyderabad was situated in the territory of His Exalted Highness the Nizam, a territory that was not part of India before 26 January 1950, and that the judgments were delivered before the Constitution of India came into force. Accordingly, the Court concluded that those judgments did not fall within the category of decisions against which a petition for special leave to appeal may be filed under article 136. The Court further observed that the same judgments were not covered by article 135 of the Constitution. On the basis of these observations the Court held that it possessed no jurisdiction to entertain the petitions seeking special leave to appeal against the Hyderabad High Court judgments under article 136. The Court therefore found that the petitioners’ cases were not covered by articles 134, 135 or 136, and that, in the present state of the law, the Supreme Court could not provide any remedy to them. The Court emphasized that an omission in the Constitution to provide such relief could not be cured by the Court, and that assuming a jurisdiction not authorized by the clear terms of articles 134, 135 and 136 would amount to the Court making legislation, which is not its function. Consequently, the Court dismissed the petitions. The petitioners were represented by an agent named N Shroff, while the respondent was represented by an agent named P A Mehta.