Janardan Reddy And Others vs The State Of Hyderabad And Others

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 16 March 1951

Coram: Saiyid Fazal Ali, Mehr Chand Mahajan, B.K. Mukherjea, N. Chandrasekhara Aiyar

The case titled Janardan Reddy and Others versus the State of Hyderabad and Others was decided by the Supreme Court of India on 16 March 1951. The judgment was authored by Justice Saiyid Fazal Ali and was delivered by a bench comprising Justices Saiyid Fazal Ali, Mehr Chand Mahajan, B.K. Mukherjea, and N. Chandrasekhara Aiyar. The petitioners were Janardan Reddy together with several co-accused, while the respondents were the State of Hyderabad and additional parties, including Kulluri Yelladu and others. The official citation of the decision is reported in the All India Reporter at volume 1951, page 217, and also in the Supreme Court Reports at volume 1951, page 344. Subsequent citator references to this decision appear in numerous reports, such as R 1955 SC 633, R 1957 SC 540, E&D 1958 SC 86, R 1960 SC 1186, RF 1961 SC 1457, R 1962 SC 1737, RF 1963 SC 1120, D 1968 SC 1313, RF 1979 SC 478, RF 1983 SC 624, and R 1990 SC 485. The legal provisions primarily concerned in the proceedings include Article 32 of the Constitution of India and Sections 2 and 7 of the Special Tribunals Regulation (Hyderabad).

The petition raised several questions, notably the maintainability of writs of prohibition, certiorari, and habeas corpus under Article 32 against detention following a conviction by a criminal court. It also examined whether the jurisdiction of the Special Tribunal that imposed a death sentence could be reviewed in a habeas-corpus proceeding and what effect the High Court’s confirmation of that conviction had on any subsequent appeal. Additional issues addressed by the respondents were the alleged misjoinder of charges, the failure to provide counsel for the accused, and whether these procedural irregularities rendered the conviction invalid. The Court observed that a clear distinction exists between a complete lack of jurisdiction and an illegal or irregular exercise of that jurisdiction, and that mere procedural non-compliance, such as misjoinder, does not constitute a ground for granting relief under Article 32. The Court further explained that any defect of the type described must be corrected through the procedure established by law, namely by an appropriate court of appeal or revision, and not by a writ proceeding under the constitutional provision. Once a competent appellate court has considered the matter and rendered a judgment, the same issue cannot be reopened in a separate proceeding invoking Article 32. The Court noted that after the Special Tribunal pronounced a death sentence by hanging, a Regulation—identified as Regulation 345—was enacted before the High Court could confirm the sentence, stipulating that any death sentence passed by a Special Tribunal shall be executed by hanging regardless of earlier statutory provisions. It held that Regulation 345 must be given retrospective effect because the method of execution is a procedural matter, not a substantive legal right, and therefore the hanging cannot be declared illegal even if the earlier Hyderabad law prescribed decapitation as the only mode of execution. Since the High Court that affirmed the conviction possessed the authority under Regulation 345 to impose the death penalty by hanging, the Court concluded that no relief could be granted to the petitioners under Article 32.

In this matter the petitioners sought relief under article thirty-two of the Constitution, claiming that the sentences of death imposed by a Special Tribunal of Hyderabad violated their fundamental rights. The applicable provision of the Special Tribunals Regulation, namely section seven paragraph two, had been promulgated by the Military Governor of Hyderabad and authorised the execution of death sentences where the older concepts of “manzuri” and “tashih” were contemplated, without requiring the assent of His Excellency the Nizam. Consequently, a death sentence passed by a Special Tribunal could be carried out directly, irrespective of any further approval from the Nizam.

The legal backdrop included section two hundred and seventy-one of the Hyderabad Criminal Procedure Code, which corresponds to section three hundred and forty of the Indian Criminal Procedure Code, together with the rules and circular orders issued by the Hyderabad High Court. According to those provisions, two principles emerged. First, it could not be declared a rule of law that every capital case in which the accused lacked representation must be held void. Second, an appellate or revisional court retained the power to intervene where the accused was so deprived of legal assistance that the trial could be characterised as a denial of a fair trial.

The writs invoked under article thirty-two had to be linked to one or more of the fundamental rights enumerated in part three of the Constitution, and they could be issued only for the purpose of enforcing those rights. The petitioners, who had been convicted by a Hyderabad Special Tribunal for murder and other offences and sentenced to death by hanging, had seen their convictions and sentences affirmed by the Hyderabad High Court before twenty-sixth January, nineteen-fifty. They then approached the Supreme Court, seeking three specific remedies: (i) a writ of certiorari directing the Government of Hyderabad and the Special Judge to produce the case records and to show cause why the convictions and sentences should not be set aside; (ii) a writ of prohibition ordering the Government and the Special Judge not to execute the sentences; and (iii) a writ of habeas corpus challenging their detention.

The Court held that the writs of certiorari and prohibition could not be granted because, at the time the High Court examined the case and confirmed the convictions, the Supreme Court did not yet exist, and it was untenable to treat the Hyderabad Court as subordinate to a Court that had not been constituted. Regarding the writ of habeas corpus, the Court observed that a simple return confirming that the persons were detained pursuant to a criminal sentence on indictment satisfied the requirement of the petition, and therefore the writ could not be entertained. Finally, even assuming that a question of jurisdiction could be raised, the Court explained that the mere fact that the trial court might have acted without jurisdiction did not justify interference when the conviction and sentence had been affirmed on appeal by a competent appellate court, which possessed the authority to decide both correctly and incorrectly on matters presented before it.

The Court explained that the appellate court that heard the case was fully competent to determine whether the original trial had been conducted within jurisdiction or not. That appellate court possessed the authority to decide the matter both correctly and incorrectly, and because the High Court at Hyderabad had the power to hear and determine the appeal, the detention of the petitioners could not be declared invalid. The Court further observed that the judgment of the High Court had been pronounced before 26 January 1950 and had attained finality in the fullest sense before that date. Consequently, under the provisions of the new Constitution, the Supreme Court did not have the power to reopen that judgment. The Court also noted that the petitioners had lost their right of appeal to the Judicial Committee of Hyderabad as a result of a sudden change in the law and because the High Court had delayed in disposing of their application for leave to appeal to that Committee. The Court held that this loss of right was a matter for the executive authorities to consider and that the executive could not expand the scope of the existing remedial laws beyond legitimate bounds. Finally, the Court posed the question whether an application under Article 32 of the Constitution remained maintainable after a similar application under Article 226 had been dismissed by the High Court. In addressing this issue, the Court referred to several authorities, including In re Authers [(1889) 22 Q.B.D. 345], In re Bailey, the judgment in re Newton (139 E.R. 692), In re Bonomally Gupta (44 Cal. 723), Greene v. Secretary of State for Home Affairs ([1942] A.C. 284), Ex parte Lees [(1868) E.B. & E. 828], R. v. Stud-dis [(1801) 1 East 306], and Carus Wilson’s case [(1845) 7 Q.B. 984].

The Court then described the original jurisdiction of the matters before it. It stated that there were two sets of petitions filed by three groups of persons: one set of petitions was filed under Article 32 of the Constitution (Petitions Nos. 12, 13 and 14 of 1951) and the other set was filed under Article 136(1) of the Constitution (Criminal Miscellaneous Petitions Nos. 14, 15 and 16). These petitions challenged the judgment and order dated 19 December 1950 passed by the High Court of Judicature at Hyderabad, presided over by Justice M. Khaliluzzaman Siddiqi, in Miscellaneous Petitions Nos. 2297, 2298 and 2299 of 1950. The Court noted that the facts of the case were set out in detail in the judgment. Counsel for the petitioners comprised D.N. Pritt together with Danial Latifi and Gopal Singh. Counsel for the respondents included M.C. Setalvad, Attorney-General for India, and Rajaram Aiyar, Advocate-General of Hyderabad, assisted by G.N. Joshi. The judgment was delivered on 16 March 1951 by Justice Fazl Ali. The Court explained that the six petitions were presented on behalf of the three groups of persons in the following circumstances. On 30 October 1948, the Military Governor of Hyderabad, exercising powers delegated to him by His Excellency the Nizam, promulgated the Special Tribunals Regulation (No. 5 of 1358 F). This regulation was subsequently amended by several later regulations issued on 22 May 1949, 10 July 1949, 23 July 1949 and 30 October 1949. The regulation provided, among other matters, that the Military Governor could constitute special tribunals, each to consist of three members appointed by him.

According to the Regulation, the Military Governor possessed authority to issue either a general or a special order directing that the Tribunals established under the Regulation could try any offence, irrespective of whether the offence had been committed before or after the Regulation’s commencement, or could try any class of offences. Section 8 of the Regulation further empowered the Military Governor, by order, to specify circumstances or conditions under which any power or duty conferred upon him by the Regulation might be exercised or discharged by another authority. In compliance with the Regulation, several Tribunals were constituted, and one such body, identified as Tribunal A for Nalgonda district, proceeded to try cases that had been transferred to it by the Civil Administrator of Nalgonda, who exercised powers delegated to him by the Military Governor. Among the matters tried by Tribunal A were three criminal cases in which the petitioners were involved, recorded as Criminal Cases Nos. 14, 17 and 18 of 1949. These cases originated from three charge-sheets prepared by Mr Hanumantha Naidu, a senior police officer of Nalgonda district; the first charge-sheet, number 14, was dated 7 April 1949, and the subsequent two, numbered 14 and 15, were dated 20 July 1949. Each charge-sheet described the accused collectively as “Communists wedded to the policy of overthrowing the Government by violence and setting up in its place Communist Raj,” and set out the specific allegations as follows. The first case, Criminal Case No. 14 of 1949, alleged that on 21 September 1948 the accused entered a village in Nalgonda district wearing khaki uniforms and possessing unregistered firearms, seized four individuals who allegedly had not paid a demanded subscription, escorted them to the village outskirts and then killed them by cutting their throats. The second case, Criminal Case No. 17, claimed that on 6 April 1949 at approximately 9 a.m. two of the accused arrived at a village, opened fire, and when villagers demanded their surrender they fled and later rejoined the other accused. According to the charge-sheet, the assembled accused then “marched on the villagers” and indiscriminately discharged their weapons, resulting in one villager sustaining a mortal wound to the right hip and another suffering a minor injury to the left hand. The trial version of events differed slightly, stating that the two accused who first entered the village were pursued by a crowd of fifty to one hundred persons to a place called Madireddychelka, where the remaining accused joined them; after a brief negotiation, accused No. 4 fired, striking a villager on the thigh—an injury that proved fatal. Subsequently, the accused pursued the remaining villagers, firing repeatedly, and a bullet grazed a villager’s middle finger, causing a slight injury. The third case, Criminal Case No. 18, recounted that on the night of 15 May, around midnight, the accused entered Kasthala village armed, dressed in khaki, seized a sleeping individual named Natala Rama Reddy on the terrace of a resident named Kankayya, forcibly removed him to the village outskirts despite protests from numerous villagers, and killed him by shooting. The trial of the petitioners on these charges concluded with convictions for murder, carrying firearms without licence and other offences, resulting in death sentences for the murder convictions and various terms of imprisonment for the ancillary offences.

In this case, the Court recorded that in the third proceeding, designated Criminal Case No. 18, the accused arrived at Kasthala village on 15 May at about midnight. They were armed and wore khaki uniforms. The accused climbed onto the terrace of a man named Kankayya, where Natala Rama Reddy was sleeping. They seized Rama Reddy, forced him to the outskirts of the village despite protests from villagers who pursued them, and killed him by shooting him. Based on these facts, the trial of the petitioners proceeded, resulting in convictions for murder and death sentences, together with convictions for additional offences such as possession of firearms without licences, for which various imprisonment terms were imposed. Following their conviction, the petitioners appealed to the Hyderabad High Court, which affirmed both the convictions and the sentences. Subsequently, the petitioners sought leave from the High Court to appeal to the Judicial Committee of Hyderabad. While those applications were pending, the Constitution of India came into force, and the Judicial Committee ceased to operate under the new constitutional framework. Consequently, the petitioners modified their original request and asked for leave to appeal to this Court under article 134(c) of the Constitution. That request was denied, and they then applied for special leave to appeal under article 136. The Court dismissed that application, holding that it lacked jurisdiction to hear an appeal from a Hyderabad High Court judgment rendered before 26 January 1950, because that High Court was not situated within the territory of India at that time. The petitioners then filed applications under article 226 of the Constitution in the High Court, which were rejected. They thereafter instituted two sets of petitions in this Court: one invoking article 32 of the Constitution and another seeking special leave to appeal against the High Court’s refusal to grant relief under article 226. Counsel for the petitioners, appearing before the Court, advanced several principal submissions. First, they contended that the Special Tribunal that tried the petitioners lacked jurisdiction. Second, they argued that in Criminal Cases Nos. 17 and 18 of 1949 the accused were deprived of a fair trial because they were not permitted to engage counsel and remained undefended throughout the proceedings, as noted in Vide [1950] S.C.R. 940. Third, they claimed that the trials were illegal due to a misjoinder of charges. Fourth, they maintained that at the time the death sentence was imposed, execution by hanging was unlawful, with decapitation being the only lawful method, rendering the death sentence by hanging illegal. Fifth, they asserted that execution of the death sentence could not be carried out without the assent or approval of His Excellency the Nizam, which had not been obtained.

It was observed that the petitioners had not yet obtained the assent of the Nizam, which was a prerequisite for the execution of the death sentence. The Court considered the last three points raised by the petitioners to be of very little substance and therefore suitable for prompt disposal. In each of the three criminal proceedings, the petitioners faced charges of murder, rioting and other related offences that, on the face of the record, appeared to have been committed in the course of the same transaction. In addition to those charges, the petitioners were also charged with the offence of carrying unlicensed firearms. The petitioners argued that the charge of carrying unlicensed firearms was entirely separate from the other offences and could not be said to have arisen from the same transaction. That argument was put before the High Court, but the High Court rejected it on two grounds. First, the High Court held that there was no mis-joinder of charges and that the provisions of the Criminal Procedure Code had not been violated. Second, the High Court held that even if a mis-joinder were alleged, no prejudice had been caused to the petitioners by the alleged mis-joinder. The petitioners based their entire argument on the decision in Subramania Iyer v. King Emperor (1). That precedent involved an accused who was tried for as many as forty-one distinct offences in contravention of section 234 of the Criminal Procedure Code. The Privy Council, observing that case, remarked that the purpose of the section was to prevent the “effect of the multitude of charges before the jury … [being] averted by dissecting the verdict afterwards and appropriating the finding of guilt only to such parts of the written accusation as ought to have been submitted to the jury.” Subsequent Indian case law has discussed, explained and distinguished that decision. Later Privy Council judgments in Abdul Rahman v. King Emperor (1) and Babu Lal v. Emperor (2) have been interpreted by some Indian courts as having significantly modified and narrowed the broad rule that was once inferred from the earlier Privy Council observations. The Court noted that, on a more appropriate occasion, it might be necessary to revisit that line of authority in order to delineate the true scope of the Privy Council pronouncements and to determine the legal effect that a mis-joinder of charges would have on a trial.

For the present matter, the Court held that even if a procedural defect existed in the trial proceedings, such a defect did not automatically mean that the trial court had acted without jurisdiction. A clear distinction exists between a complete lack of jurisdiction and an illegal or irregular exercise of jurisdiction that is nevertheless within the Court’s authority. The Court further observed that no authority had been cited in which a mere failure to comply with procedural rules, without more, was treated as a ground for granting the writs sought by the petitioners. Consequently, the alleged procedural irregularities could only be corrected by an appellate or revisionary proceeding in accordance with law, and they did not justify reopening the matter under Article 32 of the Constitution.

The Court noted that a simple failure to follow procedural rules has not been recognized as a sufficient ground for granting any of the writs that were sought. Consequently, even if a procedural defect existed, the law provides that such a defect can be remedied only by an appellate or revisionary court, not by a writ jurisdiction. In the present matter, the appellate court that had the proper authority to hear the case had already rendered a judgment against the petitioners, and because that decision was final, the issue could not be reopened through a petition under article 32 of the Constitution. The fourth point raised by the petitioners was described as a highly technical matter that lacked any substantive merit. The Court examined the Hyderabad Penal Code and observed that section 243, which pertains to the offence of murder, merely stipulates that death is one of the punishments; it does not prescribe the manner in which a death sentence must be carried out. Turning to the Hyderabad Criminal Procedure Code, the Court found that section 311, the relevant provision, states: “When an order of death sentence or any other sentence has been submitted to the High Court for ratification (tashih) the Sessions Court shall, on receiving the order of ratification or other order of the High Court thereon, cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary or expedient.” This provision likewise makes no reference to the method of execution. However, the Court pointed out that Schedule IV of the Code, in the form prescribed for the warrant of execution of a death sentence (Form No. 29), contains a concluding clause that reads: “…… you shall hand over the accused …… to the executioner so that the latter may separate the head from the body of the said prisoner in such a way that his life may be extinct and that the execution of this order may be reported to the High Court.” In the first case, Criminal Case No. 14 of 1949, the sentence was expressly “death by hanging,” whereas in the other two cases the accused were sentenced merely to death with no specification of the mode of execution. It has been contended that, in view of the provisions of the Hyderabad Criminal Procedure Code, a death sentence by hanging was not strictly appropriate. The Court, however, observed that on 30 October 1949—some time after the Special Tribunal pronounced the sentences but before the High Court confirmed them—the Special Tribunals Regulation was amended to include a specific clause stating: “2-B. Notwithstanding anything contained in any law for the time being in force—(i) any sentence of death passed by a Special Tribunal shall be carried into execution by causing ….”

In the amendment made on 30 October 1949, the Special Tribunals Regulation inserted a clause designated “2-B” which required that any death sentence handed down by a Special Tribunal be executed by hanging the condemned prisoner until death, and that all warrants of commitment, execution, and any other instruments issued by a Special Tribunal be prepared in whatever form the Tribunal deemed appropriate. The Regulation indicated that these provisions applied to every death sentence that had remained unexecuted at the time of the amendment as well as to any death sentence that would be imposed after the amendment. Consequently, the Court treated the clause as having retrospective effect, reasoning that the manner of carrying out a death sentence concerned only procedural administration and could not be classified as substantive law that created or altered substantive rights. Accordingly, the High Court, which had affirmed the conviction, retained the authority to impose the death sentence by hanging under the amended Regulation, and the question of whether this authority existed did not bear on the petitioner's request for relief under article 32 of the Constitution.

The fifth question raised by the petitioners concerned the interpretation of the term “manzuri” as employed in sections 20, 302, 307, 308 and 309 of the Hyderabad Criminal Procedure Code. Section 20, described as the most important provision, provided that “Every Sessions Judge may pass any sentence authorised by law but such sentence shall not be carried into effect until (1) in the case of a sentence of ten years imprisonment or more the appropriate Bench of the High Court, (2) in the case of life imprisonment the Government, and (3) in the case of death sentence H.E.H. the Nizam shall have assented thereto (given manzuri).” Section 302(1) stipulated that in certain cases the execution of a sentence would be stayed until a manzuri in accordance with section 20 was obtained. Section 307 dealt with situations where the High Court affirmed a death sentence or a sentence of life imprisonment, mandating that the High Court’s opinion together with the case file be sent within one week to the Government for “tashih” (rectification or ratification) and that the sentence could not be carried into effect until a manzuri was secured as required by section 20. Section 308 stated that when the High Court forwarded any file for ratification, H.E.H. the Nizam or the Government, as applicable, would be empowered (a) to uphold the High Court’s sentence, (b) to substitute an alternative penalty for the same offence, (c) to release the prisoner, or (d) to make any other appropriate order. Finally, section 309 provided that after the manzuri was obtained in the manner previously described, the Registrar of the High Court would forward a copy of the order to the Sessions Court for execution. The Court noted these provisions in order to determine the correct legal effect of the term “manzuri.”

The Court observed that the two provisions employ distinct terms, namely manzuri and tashih. It explained that manzuri, in its literal sense, denotes approval or acceptance, but within the statutory context the term essentially conveys the idea of confirmation. Tashih, on the other hand, signifies rectification or correction and therefore indicates that the higher authority referred to in section 308 may either uphold the original sentence or modify it in accordance with the provisions of that section. The Court then turned to the question of how the regulations issued by the Military Governor have altered the effect of the original provisions. A careful reading of the Regulations shows that section 7 of the original regulation was amended by substituting several words, the relevant portion reading as follows: “7. (2) … no sentence of a Special Tribunal shall be subject to confirmation (tausiq is the vernacular expression used here). (3) The Military Governor may, on such conditions as he thinks fit, suspend, remit, reduce, or alter the nature of any sentence passed by a Special Tribunal, or any sentence substituted by the High Court on an appeal under sub-section (2) for any sentence so passed.” The learned Attorney-General contended that, after these amendments, the revised provisions encompass every situation that previously required manzuri and tashih under the old law. In contrast, counsel for the petitioners argued that the term manzuri is particularly suitable when it refers to a sovereign, because it fundamentally conveys that a sentence attains validity only through the monarch’s sanction. The Court noted that a simple reference to section 20 demonstrates that the word manzuri is employed not solely with reference to H.E.H. the Nizam, but also with reference to the High Court and the Government, making it difficult to sustain the petitioners’ claim that the term carries a special meaning limited to royal approval. In the context of the statute, the term therefore simply means confirmation, and the newly introduced word tausiq, which literally translates as confirmation, carries an identical meaning to manzuri. The petitioners also submitted that the use of the word ‘hakim’ in connection with confirmation in one of the amending Regulations could not have been intended to cover confirmation by H.E.H. the Nizam. The Court observed that ‘hakim’ literally means a ruler or an authority, and therefore the proposed distinction between hakim and ruler was not persuasive. It was further observed that one of the clear objectives of the Regulations was to simplify procedure and expedite trials, and the interpretation proposed by the Attorney-General aligns with that objective. Having resolved these subsidiary matters, the Court proceeded to address the first and second points that it considered to be of primary importance.

In this matter the Court regarded the only substantial issues raised by the petitioners as those concerning the second point, which concerned only Criminal Cases numbered seventeen and eighteen and were the subject of Petitions numbered thirteen and fourteen filed under article thirty-two. The petitioners asserted that the entire trial in those two cases was invalid because the accused persons had been denied the right to be represented by a pleader. The petitions before the Court, however, did not provide any factual narrative to substantiate that claim. The only factual content offered by the petitioners appeared in paragraphs two and four of the affidavits they filed. In paragraph two they stated that they had been prevented from communicating with relatives and friends, that they had never seen any of their friends or relatives either in the lock-up, in the court or in jail before they were presented before the Special Tribunal on the third day of August 1949, and that the circumstances surrounding this restriction were known only to the police. In paragraph four they alleged that the court had never offered to facilitate any communication with their relations, had not offered to adjourn the proceedings, and had refused to appoint counsel at the State’s expense for their defence; they further claimed that the court had said it would not adjourn the case under any circumstances and that, being unaware of the law, they did not know they could have asked for any of those remedies. In support of this part of their case counsel for the petitioners relied on certain American decisions, particularly the United States Supreme Court case of Powell versus Alabama, in which the Court was reported to have held that in a capital case where the defendant cannot employ counsel and is incapable of making his own defence because of ignorance, feeblemindedness, illiteracy or similar conditions, the court has a duty, whether or not the defendant requests it, to assign counsel as a necessary component of due process of law. While the desirability of assigning counsel in such circumstances is undeniable, the question before this Court was whether the failure to assign counsel would necessarily invalidate the trial process. The Court observed that it could not base its decision solely on American precedents, which are grounded in the doctrine of due process specific to the United States Constitution and in particular statutory provisions concerning the right to representation in criminal proceedings. The provision most relevant to the petitioners’ contention is section two hundred seventy-one of the Hyderabad Criminal Procedure Code, which corresponds to section three hundred forty of the Indian Criminal Procedure Code and reads: “Any person accused of an offence before a criminal court, or against whom proceedings are instituted under this Code in any such court, may of right be defended by a pleader.” The Court emphasized that this provision must be interpreted liberally in favour of the accused and must be read together with the rules formulated by the High Courts and the circular orders they issue, which direct that in capital cases where the accused lacks means to defend himself, a counsel should be provided for his defence.

The Court observed that High Courts had issued circular orders directing that, in capital cases where an accused person lacked the means to defend himself, a counsel should be appointed to represent him. The Court held that it could not be declared as a rule of law that every capital trial in which the accused was unrepresented would be automatically invalid. At the same time, the Court stressed that an appellate or revisionary court was not without power to intervene when it appeared that the accused had been so deprived of legal assistance that the proceedings could be characterised as denying a fair trial. Accordingly, the Court indicated that such interference was permissible where the absence of counsel was shown to have seriously impaired the fairness of the trial.

Turning to the specific matters before it, the Court noted that in Criminal Case No. 14 the accused individuals had been represented by a pleader, whereas in Cases Nos. 17 and 18 no lawyer had been presented on their behalf. The docket records for Case No. 17 showed that the accused were brought before the court on 3 August 1949 and were informed on that date that the matter would be heard on 6 August 1949, and that they should be prepared with defence counsel and witnesses. On 6 August the hearing was adjourned because none of the prosecution witnesses were present, and the trial actually commenced on 7 August, the following day. In Case No. 18 a similar order was issued on 3 August, setting the hearing for 7 August. The docket entries further indicated that the trial in Case No. 17 concluded on 14 August, while the trial in Case No. 18 was completed on 13 August. Regarding the circumstances of the lack of representation, the Court referred to a counter-affidavit filed by Mr Hanumantha Naidu, which stated that an inquiry by the Tribunal had found that accused Hanumanthu possessed sufficient means—land and house property—to engage a lawyer, but chose not to do so, a fact recorded in the docket of Criminal Case No. 14/49 by the Tribunal President. The affidavit further explained that facilities were provided for accused persons to retain counsel, that the Tribunal appointed government-cost lawyers for those unable to afford representation, that some accused declined the appointed counsel, and that others hired private pleaders at their own expense. The affidavit also contained allegations in paragraph 5 that lawyers were reluctant to appear because they feared incurring

In the affidavit, it was stated that the allegation that lawyers feared the police and the Administration and therefore refused to appear before the Special Tribunal was false. The affidavit affirmed that lawyers were ready to appear and to defend the accused whenever they were engaged. In Criminal Case No. 14/49, a pleader appeared for accused persons designated A-4, A-7 and A-8 and carried out their defence. The same pleader also volunteered to defend the remaining accused, but those individuals rejected his assistance and expressly said that they did not wish any lawyer to defend them. The affidavit further observed that in Nalgonda there are approximately forty practising pleaders, of whom about six possess B.A. LL.B. qualifications, are well-versed in English and are capable of conducting cases in that language.

The petitioners argued that the affidavit related only to their own case, Case No. 14 of 1949, and this contention seemed to receive some support because paragraph 4 of the affidavit initially referred to the means of one of the accused in that specific case and later made a direct reference to the same case. However, after a careful reading of the entire affidavit, the Court concluded that the document was intended to address the allegations raised by the petitioners in all three matters before the Tribunal. The same point had been raised before the High Court when the petitioners sought leave to appeal their convictions. Two learned Judges of the High Court examined the issue in separate judgments and held that the contention that the Tribunal had failed to give the accused an adequate opportunity to engage counsel was not well founded. Sripat Rao J., who delivered the leading judgment, after discussing the various facts, observed that the appeal did not allege denial of opportunity by the Special Tribunal. He noted that the High Court, in Appeal No. 1385 of 1338 F., had allowed time for representation by lawyers, but the accused themselves, on the subsequent hearing, declared that they did not wish any lawyer to represent them and that the High Court should not appoint one for them. This, he said, indicated that the accused, for reasons known only to them, chose not to utilise the opportunity to engage counsel. He made a similar observation regarding Appeals Nos. 1379 to 1384 of 1358 F., where the High Court proceedings of 29-2-59 F. showed that the accused again refused to engage any lawyer and also declined the High Court’s offer to appoint one. In the Court’s opinion, therefore, the plea that the accused were denied the chance to obtain legal representation and that the trial was consequently vitiated could not be sustained.

The Court further remarked that, based on the material before it, it could not completely dismiss the High Court’s suggestion that the accused’s own curious attitude might, to some extent, explain why they were not represented by counsel. This observation recognized that the accused’s personal decisions played a role in the absence of legal representation, even though the Tribunal had made provisions for appointing lawyers at Government cost where necessary. Consequently, the Court indicated that while the Tribunal had provided the opportunity, the ultimate choice lay with the accused, and the claim that the trial was invalid because of a lack of representation was not supported by the evidence.

The Court noted that the manner in which the accused behaved, for reasons known only to them, partly explains why they were not represented by a lawyer. During the hearing, it was pointed out that several relatives of the accused in the first matter, identified as Case No. 14, were present at the trial and that some of the accused in that case were actually defended by a pleader. It was argued that this circumstance supported the conclusion reached by the High Court, because if the accused in the first case were not deprived of access to their relatives and to counsel, there could be no reason to assume that the accused in the other cases were deprived of the same rights. Consequently, the material before the Court did not establish a sufficiently clear situation to justify the conclusion that the petitioners sought. Nonetheless, the Court expressed the view that, throughout the discussion of this issue, it seemed appropriate for the Special Tribunal to have taken positive measures, such as assigning a lawyer, to assist the accused in presenting their defence.

The Court then turned to the first question, namely the jurisdiction of the Special Tribunal that had tried and convicted the accused. The petitioners relied on the general ground that the order issued by the Civil Administrator, which purported to confer jurisdiction on the Special Tribunal to try the petitioners, failed to identify with certainty the particular persons whose cases were to be tried by that Tribunal. Accordingly, the petitioners claimed that there was no valid order enabling the Tribunal to assume jurisdiction over their cases. It was contended that, under ordinary law, the petitioners’ matters should first have been placed before a Magistrate for an inquiry and commitment, after which a Sessions Judge would have conducted the trial. The petitioners argued that this procedural route could be dispensed with only if a proper order had been issued under the relevant Regulation by the Civil Administrator; in the absence of such an order, the trial would be void. The same point was raised in the petitioners’ application to the High Court for permission to appeal to this Court. The High Court, in refusing the application, relied on two letters produced before it: (1) Letter No. 3176/49-ST dated 7 April 1949, which directed that criminal cases covered by charge sheets numbered 1 to 14 be tried by the Special Tribunal at Nalgonda; and (2) Letter No. 4234/49-ST dated 23 July 1949, which transferred cases covered by charge sheets numbered 15 to 40 to the same Tribunal for trial. The High Court’s statement was affirmed by an affidavit filed on behalf of the respondents. The petitioners then contended that

It was argued that merely referring to the number of a charge-sheet did not satisfy the legal requirement of precise description, and that when the Civil Administrator transferred cases he should have expressly recorded the names of the accused along with other essential particulars. The Court, however, held that under the circumstances the reference to the charge-sheet numbers was adequate to identify the specific cases being sent to the Special Tribunal, because each charge-sheet itself contained the accused’s name and all other details necessary to distinguish the case. Consequently, the general argument that the reference was too vague could not succeed. Yet, after a meticulous examination of the material before the Court, no specific order of the Civil Administrator could be located that transferred the case covered by charge-sheet No 14 dated 20 July 1949 to the Tribunal. The record showed that two different charge-sheets bore the number 14: one was filed by the Investigating Officer on 7 April 1949 and the other on 20 July 1949. The first letter from the Civil Administrator, dated 7 April 1949, dealt with the earlier charge-sheet numbered 14, but it could not be interpreted as covering the later charge-sheet of the same number, which only came into existence on 20 July 1949, roughly three months after the April letter had been dispatched. The subsequent letter issued by the Civil Administrator made no reference at all to any charge-sheet numbered 14. Therefore, the charge-sheet No 14 of 20 July 1949—referred to here for brevity as 14 (2)—was not the subject of any written order by the Civil Administrator. On its face, this creates a basis for the contention that Case No 17, which is linked to charge-sheet 14 (2), was never lawfully transferred to the Special Tribunal, rendering the trial of the accused in that case without jurisdiction. During the hearing, the learned Attorney-General cited an affidavit of Mr Hanumantha Naidu, which asserted that the same case had indeed been transferred by the Civil Administrator to the Tribunal for trial, and further indicated that the Attorney-General was prepared to present an affidavit from the Civil Administrator himself to confirm a valid transfer. The Court noted with regret that this issue had not been raised nor examined in the appeal before the High Court, and that it now had to be addressed here relying solely on affidavits, many of which were not properly drafted or sworn. In light of these circumstances, the Court considered that it might have pursued a deeper investigation if it were likely to yield a useful result; however, the Court concluded that such an inquiry was unnecessary because there were insurmountable obstacles that prevented granting the petitioners any relief under Article 32.

Article 32 clause 2 of the Constitution states that “the Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (Part III).” This provision grants the Supreme Court a very wide authority, but the exercise of that authority must follow well-settled jurisprudential principles. Any writ that the Court may issue under this clause must be linked to one or more of the fundamental rights enumerated in Part III and may be issued only for the purpose of enforcing those rights. In the present petitions the petitioners asked for specific reliefs. They prayed that the Court issue a writ of certiorari, or alternatively a direction or order, addressed to respondents number 1 and 3—the Government of Hyderabad and the Special Judge of Nalgonda—requiring those respondents to produce the trial records and to show cause why the petitioners’ convictions and sentences should not be set aside. The petitioners also prayed that the Court issue a writ of prohibition, or a direction or order, addressed to respondents number 1 and 2—the Government of Hyderabad and the Superintendent of the Jail—ordering those authorities not to carry out any execution of the sentences against the petitioners. Near the end of the hearing the petitioners sought and obtained permission to amend their petition to add an additional prayer for a writ of habeas corpus.

The issue before the Court was whether any of the prayed-for writs could be granted. The Court observed that a writ of certiorari or a writ of prohibition would be ill-suited in these circumstances because such writs are ordinarily directed at inferior tribunals. At the time when the High Court had examined the cases, confirmed the convictions and imposed the sentences, the Supreme Court itself did not yet exist; consequently, it was impossible to regard the High Court as subordinate to the Supreme Court. The petition for a writ of habeas corpus, however, appeared to escape this hierarchy problem, on the ground that the petitioners’ detention would be unlawful day by day if it were based on an order that lacked jurisdiction and therefore should be treated as a nullity. The Court noted, however, that the question was not as straightforward as it first seemed. A substantial body of case law on habeas corpus held that when the return states that a person alleged to be unlawfully detained is actually detained in execution of a criminal sentence, that return cannot be contradicted. The Court referred to cases such as R v Suddis, Carus Wilson’s case and Ex parte Lees. In other decisions the courts considered whether affidavits could be admitted to demonstrate that the court which rendered the conviction had no jurisdiction, and the Court indicated that this issue required careful examination.

In certain earlier decisions, the courts were asked whether affidavits could be admitted to demonstrate that the tribunal which had convicted the prisoner lacked jurisdiction. Three authorities concluded that such affidavits were admissible, and the most prominent among them is the case In re Authers. In that matter a club manager had first been convicted under one statute for selling beer at retail without an excise licence. Later he faced a second charge under a different statute for selling intoxicating liquor without a licence. The magistrate, on hearing the second charge, treated it as a “second offence” and imposed the penalty that the later statute prescribed for a second conviction. The manager appealed to the Quarter Sessions, but his appeal was dismissed. He then applied for a writ of habeas corpus, which the Queen’s Bench Division granted on the ground that the magistrate could not treat the later offence as a second one, because it was not a second offence under the statute by which he was being tried the second time.

Hawkins J., delivering the judgment, expressed his doubts about whether a court could go behind a conviction that had not been set aside by certiorari or any other legal process, but he concluded that the court could indeed do so on the basis of affidavits. He referred to two earlier decisions, one from the Queen’s Bench and another from the Exchequer, which he considered conclusive. Those cases involved prosecutions of workmen for neglecting duties owed to their employers; each case resulted in a summary conviction. On the basis of a writ of habeas corpus, the judges allowed affidavits to show that the men were, in fact, not employed in the particular capacity alleged, and therefore were not subject to the jurisdiction of the justices. The admission of the affidavits was justified by the lack of any evidence before the justices that could support a conviction. Accordingly, Hawkins J. held that the present court was free to go behind the conviction and receive affidavits, because the situation did not involve conflicting testimony but rather the magistrate’s finding of a previous conviction that, in reality, did not exist. For those reasons, the judge concluded that the prisoner was entitled to be discharged.

Turning to the prisoner’s appeal to the Quarter Sessions, the learned judge observed that, although the factual finding was correct, it did not improve the prosecution’s position. If the magistrate had no authority to create jurisdiction for himself by deeming a first offence where none existed, then the justices could not lawfully confer such jurisdiction on the prisoner. The judge’s remarks suggested reference to earlier authorities such as In re Bailey and In re Baker, although he did not cite them expressly. This reasoning stood in contrast to a body of cases that adopted a different view, including the leading case In re Newton, where the Supreme Court held that the Queen’s Bench Division could not issue a writ of habeas corpus to release a prisoner convicted by the Central Criminal Court on the ground that the offence was committed outside that court’s jurisdiction.

In the earlier passage, the Court observed that if the magistrate had claimed that the offender was committing a first offence when no such offence existed, then the justices would not have been able to impose a penalty. In the judgment of the learned judge, no specific earlier authorities were mentioned, although it has been generally assumed that the judge was relying on the decisions reported in In re Bailey (1) and In re Baker (2). Contrasting with those authorities, there were a number of decisions that adopted a different approach and that could not be readily reconciled with the Bailey and Baker rulings. The principal case representing the opposite line of authority was In re Newton (3), in which it was held that the Queen’s Bench Division possessed no power to issue a writ of habeas corpus to release a prisoner who had been convicted by the Central Criminal Court on the basis that the offence alleged had been committed outside the jurisdiction of that court. While discussing Newton, Chief Justice Jervis C.J. made the following observations: “The question presented in this matter is unquestionably of great significance. No previous authority has been discovered that would support the proposition. Consequently, the issue appears to have never been raised before—perhaps because it is so self-evident that nothing further need be said. The facts are as follows: Mr Newton had been tried and convicted on an indictment asserting that the offence took place within the jurisdiction of the Central Criminal Court. Either that allegation was denied, or the jurisdiction had been conceded by pleading. If the allegation had been denied, the jury’s verdict was that the prisoner had indeed committed the offence within the jurisdiction of the Court as alleged (see citations (1) 3 E & B 607, (2) 2 H. & N. 219, (3) 139 R. R. 692). He now seeks to challenge that verdict on the ground that the actual location of the offence lay more than one thousand yards beyond the parish boundary recorded in the indictment. That question is not decided by asking whether the fact is indisputable. If the application were entertained merely because the boundary is clearly defined, the Court would also be compelled to entertain disputes of the most intricate and minute nature, which would be highly inconvenient. The proper conclusion, therefore, is that the remedy sought cannot be granted by an application of this type.” A further learned judge, concurring with the Chief Justice, added: “In criminal trials it is normally presumed that the court has jurisdiction over the place where the offence is said to have been committed. In the present case the trial undoubtedly proceeded on the assumption that Beulah Spa lay within the jurisdiction of the Central Criminal Court. Whether this assumption was correct is a factual issue that must be proved or admitted in the same manner as any other fact alleged in the indictment in order to support the conviction.” The reasoning set out in Newton has subsequently been followed in several other decisions, confirming the position that jurisdictional challenges of this nature are not suitable for habeas corpus relief.

In Greene v. Secretary of State for Home Affairs, Viscount Maugham gave weight to the proposition that the mere appearance of a detainee’s status as serving a sentence on indictment suffices to answer a petition for habeas corpus. The Calcutta High Court echoed this position in In re Bonomally Gupta, thereby reinforcing the emerging line of authority. Consequently, the prevailing trend holds that if a return plainly shows a person is detained while executing a criminal sentence, that fact alone provides an adequate response to a habeas petition. Nevertheless, the question of jurisdiction may still be examined even in such circumstances, as observed in In re Anthers. The judges in that case, however, appeared to have gone too far by holding that, despite a conviction and sentence being upheld on appeal by a competent court, the simple fact that the trial court lacked jurisdiction would justify setting aside the appellate order and treating it as a nullity.

The appellate court that receives a proper appeal is fully empowered to determine whether the trial court possessed jurisdiction, and it retains that jurisdiction whether its ultimate decision is correct or erroneous. If the appellate court affirms a conviction while mistakenly concluding that the trial court had jurisdiction, it cannot be said to have acted without jurisdiction, and its order therefore cannot be treated as void. While criminal law does not recognise a doctrine of constructive res judicata, it does recognise the principle of finality of judgments, which applies equally to criminal and civil matters and is inherent in any system that provides mechanisms for correcting errors on appeal or revision. Section 430 of the Criminal Procedure Code and section 355 of the Hyderabad Criminal Procedure Code expressly embody this principle by declaring that judgments and orders of an appellate court on appeal shall be final, except as provided in section 417 and Chapter XXXII. It is well settled that when a court acts without jurisdiction, its decision may be challenged in the same manner as if it had acted with jurisdiction, meaning an appeal lies to the court to which it would have lain had the order been within jurisdiction. Authorities such as Ranjit Misser v Ramudar Singh, Bandiram Mookerjee v Purna Chandra Roy, Wajuddi Pramanik v Md Balaki Moral, and Kalipada Karmorkar v Sekher Bashini Dasya support this rule. Accordingly, the High Court at Hyderabad possessed the jurisdiction to hear and determine the appeal in the present matter, and in view of that jurisdiction, the...

The Court observed that the deprivation of life or liberty upon which the petitioners relied had been effected in accordance with a procedure established by law, and therefore their present detention could not be declared invalid. The Court further noted that the judgment of the Hyderabad High Court affirming the convictions and sentences of the petitioners had attained finality in the fullest sense before 26 January 1950, and that finality precluded any question as to the validity of those convictions at the moment the Constitution came into force. The Court asked whether a new law or a change in an existing law could permit the reopening of a matter that had become closed and final. It explained that the constitutional provisions invoked in the petitions were not intended to have retrospective operation; consequently, something that was legally valid on 25 January 1950 could not be declared illegal on 26 January 1950. The Court stated that, if it lacked jurisdiction to entertain an appeal against the Hyderabad High Court’s judgment, it could not now reopen the cases and pass orders that would effectively set aside the final judgments of that Court. In other words, the Court could not accomplish indirectly what it could not do directly. The Court regarded this difficulty as substantial, grounded not merely in technicalities but in sound legal principles that have consistently been respected.

The Court noted that counsel for the petitioners emphasized that the petitioners had lost their right to appeal because of a sudden change in the law and because the High Court had delayed in disposing of their application for leave to appeal to the Judicial Committee of Hyderabad. While acknowledging that the delay was unfortunate, the Court held that there could be no justification for expanding the scope of the existing remedial laws beyond their legitimate limits. The Court referred to a similar argument presented in Ex parte Lees, where Lord Campbell C.J. observed that a prisoner alleged that proceedings were conducted under a repealed statute and that there were errors, hardships, and irregularities in the proceedings. The Court indicated that, even if such allegations were well-founded, it had no authority to interfere, leaving the matter to the advisers of the Crown for consideration.

The Court noted that if an error, injustice, or hardship were found to bar any remedy by appeal to the Privy Council or by a writ of error to this Court, the Crown’s advisers would examine the matter, form their judgment on the alleged mistake, and, if satisfied, would advise the Crown to grant the applicant such relief as they deemed appropriate, either by pardon or by reducing the punishment. The Court affirmed that it possessed no authority to interfere with that process. The Court then turned to the substance of the petitions. It observed that the petitioners, who were the accused in Criminal Case No. 17 of 1949, had established a prima facie case that no specific order of the Civil Administrator had directed the case to be tried before a Special Tribunal. Moreover, they demonstrated that one of the three members of that Tribunal had delivered a dissenting judgment which was more favorable to the accused than the majority opinion. While the Court was analysing these facts, it became aware that a total of six persons had been accused in Case No. 17; five of those individuals had already been convicted and sentenced to death in the related Case No. 18. The remaining accused, identified as Kallur Gowndla Elladu, was consequently the only person whose arguments concerning lack of jurisdiction over the trial could still be considered. The Court further noted that, in Elladu’s favour, the fatal blow forming the basis of the murder charge was attributed to another individual, and no specific overt acts were ascribed to him. The Court expressed confidence that these facts would receive due consideration by the executive authorities, citing precedent (1) (1858) E.B. & F. 826. Since the issues presented in the petitions for special leave to appeal to this Court, which challenged the High Court’s refusal to grant relief under article 226 of the Constitution, were identical to those raised in the petitions under article 32, the Court dismissed all six petitions. The Court added that it had not found it necessary, in the present case, to decide whether an application under article 32 remains maintainable after a similar application under article 226 has been dismissed by the High Court, and therefore reserved its opinion on that question. The petitions were therefore dismissed. Counsel for the petitioners. Counsel for the respondents.