Abdul Khader and Ors vs State of Mysore

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

Court: supreme-court

Case Number: Appeal (crl.) 24 of 1952

Decision Date: 30 April 1953

Coram: M. Patanjali Sastri, B.K. Mukherjea, V. Bose, G. Hasan, Jagannadhadas

In this appeal, Abdul Khader and others challenged convictions that had been handed down in four criminal matters tried under the Special Criminal Courts Act of 1942, which is Act 24 of 1942. The Supreme Court granted special leave to appeal, but limited that leave to the question of whether the Act itself was valid. The leave was also restricted to particular petitioners, namely the first, second, third, eleventh and fourteenth respondents. After hearing extensive arguments from counsel representing both sides, the Court found it unnecessary to decide the constitutional questions that had been raised. The Court held that the convictions that resulted in sentences of transportation and other punishments must remain in force, irrespective of any constitutional issue. Consequently, the only remaining matter for detailed consideration was the case of the second appellant, who alone was still subject to a death sentence.

The second appellant, Nalband Abdul Rahiman, faced prosecution in two separate cases. In the first case, identified as criminal case number 1 of 1948-49, he was found guilty of offences under sections 302 and 304 of the Penal Code and was sentenced to death. In the same case he was also convicted of offences under sections 333, 334 and 326 of the Penal Code and received a term of ten years’ rigorous imprisonment. These convictions and sentences were affirmed on a reference to the Chief Justice of Mysore made under section 7 of the Special Criminal Courts Act. In the second case, criminal case number 2 of 1948-49, he was convicted of a single count under section 302 and was sentenced to transportation for life, while a separate conviction under section 148 resulted in a three-year imprisonment; both judgments were upheld on review. The first appellant, Phylwan Abdul Khader, had also been sentenced to death in criminal case number 1 of 1948-49, but the reviewing judge acquitted him of the murder charge. Nevertheless, he was sentenced to transportation for life in criminal case number 2 of 1948-49, a judgment that was affirmed. Additionally, he received a ten-year term in case 1 for offences under sections 333, 334 and 326, and in case 2 he received seven years for an offence under section 304(1), another seven years for an offence under section 326, and three years for an offence under section 148; all of these sentences were also confirmed on review. The Court noted that it was unnecessary to set out the convictions and sentences of the remaining appellants, as none of them had been sentenced to death. The Court therefore indicated that it would first examine the cases of all appellants, including the second, except where the second appellant remained under a death sentence in criminal case 1 of 1948-49.

In this case the Court indicated that it would examine only those appeals in which no death sentence remained outstanding. The sole issue that required determination was whether the convictions under review infringed the guarantee of equality before the law contained in Article fourteen of the Constitution. The legislation that had governed the original trials expressly authorised the establishment of Special Courts for the conduct of the proceedings. The Court noted that it was unnecessary to decide whether those Special Courts would have been unlawful after the Constitution came into force. For the purpose of the present analysis the Court assumed, without reaching a definitive conclusion, that the courts might have been invalid after the Constitution’s commencement. Nevertheless, the Court observed unequivocally that the Special Courts had been perfectly lawful before the Constitution took effect and that the judgments rendered on 5-10-1949 were sound and valid under the law applicable at that time.

Section twenty-five of the governing Act removed every right of appeal or revision, providing that “save as aforesaid, no Court shall have authority to revise such order or sentence or have any jurisdiction of any kind in respect of any proceeding of any such Court.” The provisions referred to by the expression “aforesaid” were, for the matters now before the Court, contained in Section seven (a), which stipulated that “If in any proceedings before a Special Judge— (a) a person convicted is sentenced to death or to transportation for life, or to imprisonment for a term of seven years or more … the proceedings shall be submitted for review by a person nominated in this behalf by the Government, that person being selected from the Judges of the High Court, and the decision of that person shall be final.” All the cases were forwarded for such review immediately, on the very date of the convictions, namely 5-10-1949, and the reviewing authority was the Chief Justice of the Mysore High Court. While the review was still pending before the Chief Justice, the Constitution came into operation on 26-1-1950, by which time the sixty-day period allowed for appeals in ordinary criminal cases had already elapsed. Consequently, had it not been for the special review provision, the matters would have been finally concluded and no question of the retrospective operation of Article fourteen could have arisen, because the article was not intended to apply retrospectively. The appellant argued, however, that the trial must be considered as a single continuous process and that, because the Special Judge’s sentences could not take effect until confirmed by the reviewing Judge, the proceedings should be regarded as continuing after the Constitution’s commencement. That argument relied upon the precedent set in Piare Dusadh v. Emperor. If that line of reasoning were accepted, the only logical result would be that the review conducted by the Chief Justice was beyond the powers granted by the Act and therefore could be disregarded. Yet such a conclusion would not benefit the appellants, because any right of appeal that might have existed against convictions involving transportation for life or lesser sentences had already been extinguished before the Constitution became effective, and the Constitution could not revive a right that had already been lost. The Court then turned its attention to the relatively straightforward case of the second appellant, who had been sentenced to death, and considered whether that situation warranted a different approach.

In this case the Court examined the argument that, even if it were accepted that there was no right of appeal at the moment the Constitution came into force, a person sentenced to death could still demand confirmation of that sentence by two High Court judges because Section 374 of the Criminal Procedure Code required such confirmation. Section 5(2) of the relevant Act declared that a Special Judge was to be regarded as a Court of Session. Consequently, the factual situation involved a man who had received a death sentence from a court that, in substance, was equivalent to a Court of Session. Under the general law a death sentence could not be executed until it had been confirmed in the manner prescribed by Section 374. Moreover, Section 7(a) of the same Act provided that a death sentence handed down by the trial judge was not final any more than a death sentence under the Criminal Procedure Code; it also required confirmation on review. Hence, because the second appellant had been sentenced to death by a court that for practical purposes functioned as a Court of Session, and because his sentence had been confirmed after the Constitution came into operation by only one judge rather than the two judges mandated by Section 374, the Court observed that this created a substantial discrimination against the appellant.

The Court stated that it did not intend to adjudicate that particular point, because whichever way the issue was resolved it would become academic. If the appellant’s contention were accepted, his death sentence and conviction would be set aside; however, that outcome would not free him, since he also faced a sentence of transportation and three years in one case and a separate ten-year sentence in another. Conversely, if the appellant’s claim failed, the Court would nevertheless reduce his death sentence to transportation for life, taking account of the three and a half years that had elapsed since his conviction. He had been sentenced to death on 5-10-1949, the sentence had not been confirmed until 31-3-1951, and by the time of the judgment it was April 1953. The appellant bore no responsibility for the long delay while the matter awaited review, nor for the subsequent delay that occurred. Accordingly, even if the conviction were upheld, the Court would reduce the sentence, though this reduction would not grant him liberty. In view of these considerations the Court chose not to interfere with the conviction itself but ordered that the death sentence be reduced without addressing the constitutional questions that had been raised. Finally, the appeal was dismissed as to all appellants, except that, in the case of the second appellant Nalband Abdul Rahiman, the death sentence was commuted to transportation for life.