Habeeb Mohamed vs The State Of Hyderabad

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 43 of 1952; Petition No. 173 of 1952

Decision Date: 30 March, 1953

Coram: B.K. Mukherjea, Natwarlal H. Bhagwati, M. Patanjali Sastri, Ghulam Hasan, S. R. Das

In the case of Habeeb Mohamed versus the State of Hyderabad, decided on 30 March 1953, the Supreme Court of India rendered its judgment. The opinion was authored by Justice B.K. Mukherjea, and the bench was composed of Justices B.K. Mukherjea, Natwarlal H. Bhagwati, M. Patanjali Sastri, and Ghulam Hasan. The petitioner was Habeeb Mohamed and the respondent was the State of Hyderabad. The judgment date was 30 March 1953, and the bench is recorded as Mukherjea, B.K.; Bhagwati; Natwarlal H.; Sastri, M.; Patanjali (Chief Justice); Das; Sudhi Ranjan; Hasan, Ghulam. The citation for the decision is 1953 AIR 287 and 1953 SCR 661, with further citator references including RF 1953 SC 404 (21), RF 1954 SC 424 (18), F 1955 SC 13 (14), R 1955 SC 191 (5), F 1956 SC 269 (27), 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), R 1979 SC 478 (64, 68, 93), RF 1980 SC 1789 (36). The matters addressed involved the Constitution of India, 1950, particularly Articles 13 and 14, and Hyderabad Regulation X of 1359 F, which provided for trial by a special judge after 26 January 1950 and contained provisions differing from the Criminal Procedure Code. The Court examined the doctrine of equal protection of the laws, the validity of the trial, tests of validity, and the effect of curtailing committal proceedings together with the right to transfer, revision, and the confirmation of a death sentence. The headnote explained that when assessing the validity of a pre-Constitution statute on the ground that any of its provisions conflict with the equal-protection clause, two principles must be remembered. First, the clause has no retrospective effect; even if a law is discriminatory, it remains valid for all transactions and for the enforcement of rights and liabilities that accrued before the Constitution came into force. Second, Article 13(1) does not automatically invalidate an entire statute after the Constitution’s commencement; it only nullifies those provisions that are inconsistent with the fundamental rights guaranteed in Part III. The Court further noted that the continuation of the trial after 26 January 1950 under the earlier Regulation, although in some respects discriminatory, would not automatically render the subsequent proceedings invalid. The accused could only contend that the remaining portion of the trial must not deviate materially from the normal standard so as to amount to a denial of equal protection under Article 14. To determine whether such protection was denied, the Court must first examine whether, after removing the discriminatory elements of the Regulation, the accused could still obtain substantially the same benefits as a trial under ordinary law, and then assess whether those benefits were actually provided in the specific case. On 5 January 1950, the accused, who faced charges of murder, arson, rioting and other offences, had his case, which was pending before a Special Tribunal, transferred to a Special Judge pursuant to the provisions of Hyderabad Regulation X of 1359 F, which abolished the Special Tribunal Regulation of 1949.

In this case, the proceedings were instituted under the Hyderabad Regulation X of 1359 F, which had abolished the earlier Special Tribunal Regulation of 1949. The trial began on 11 February 1950, after the Constitution had come into operation, and the accused was found guilty and sentenced to death. The accused filed an appeal, which was rejected, and the High Court subsequently confirmed the death sentence. The appellant argued that the entire trial was unlawful because the Regulation that governed the trial contained several provisions that conflicted with the equal-protection clause of Article 14 of the Constitution and therefore became void after 26 January 1950. The Court examined this contention and held, first, that the removal of committal proceedings and the substitution of a warrant procedure for the sessions procedure did not render the trial illegal, since a committal proceeding was not an essential prerequisite to a sessions trial under the Hyderabad Criminal Procedure Code. Second, the Court interpreted section 8 of the Regulation to mean that the accused retained the right to apply for transfer of his case, and that the right of revision was withdrawn only with respect to sentences that were not appealable. Third, the Court found that the portion of section 8 that eliminated the statutory provisions for confirmation of sentences was void, but declared that this portion was severable from the remaining part of the section; consequently, the confirmation provisions of the Hyderabad Criminal Procedure Code could still be applied and did not affect the trial procedure prescribed by the Regulation. Fourth, the Court observed that the absence of the Nizam’s consent did not invalidate the trial, because such consent was required only before the execution of a death sentence. The Court also held that the delegation of the Chief Minister’s authority to transmit cases to the Special Judge by a general notification, which empowered all civil administrators in the districts to exercise the Chief Minister’s powers under section 5(b), was not invalid, since section 5(b) does not require the delegatee to be named specifically. The precedent set in Qasim Bazvi’s case, reported in [1953] S.C.R. 589, was applied. The appeal arose as Criminal Appeal No. 43 of 1952 and Petition No. 173 of 1952, and special leave was granted by the Supreme Court on 11 May 1951 from the High Court judgment dated 11 December 1950 in Criminal Appeal No. 598 of 1950, together with a petition under Article 32 of the Constitution. Counsel for the appellant, assisted by additional counsel, appeared for the appellant, while counsel for the respondent, assisted by additional counsel, appeared for the respondent. The judgment was delivered by the Chief Justice and the other judges, with a separate but concurring opinion authored by another Justice. The Court noted that the appellant had been a revenue officer in 1947.

In this matter the appellant was serving as a Revenue Officer in the District of Warangal, which formed part of the State of Hyderabad. While holding that public office he was indicted before the Special Judge of Warangal, an authority appointed pursuant to Regulation X of 1359F. The indictment charged him with murder, attempted murder, arson, rioting and a number of other offences that were defined and punishable under various sections of the Hyderabad Penal Code. The alleged acts were said to have taken place on or about 9 December 1947, but the First Information Report relating to those acts was not filed until a considerably later date, namely 31 January 1949. Subsequently, on 28 August 1949, an order made under section 3 of the Special Tribunal Regulation No V of 1358 F—then the governing regulation—directed that the appellant should be tried by the Special Tribunal (A). Because the accused was a public officer, prosecution required the prior sanction of the Military Governor, and that sanction was duly granted on 20 September 1949. On 13 December 1949 the Hyderabad Government enacted a new piece of legislation, Regulation No X of 1359F, which terminated all Special Tribunals that had been created under the earlier regulation, effective from 16 December 1949. The new regulation simultaneously provided for the appointment, powers and procedure of Special Judges. Under section 4 of the regulation the Chief Minister, after consulting the High Court, was authorised to appoint as many Special Judges as might be required for the purposes prescribed in section 5. Section 5(1) stipulated that each Special Judge would try (a) any offence whose trial was pending before a Special Tribunal on 16 December 1949 and that the tribunal was deemed dissolved on that date, and (b) any offence that arose after the commencement of the new regulation, provided the case was transferred to the Special Judge by the Chief Minister or by a person authorised by the Chief Minister.

Accordingly, on 6 January 1950 the case against the appellant was transferred to Dr Lakshman Rao, who had been appointed as a Special Judge of Warangal under the authority of the new regulation. The transfer was effected by an order issued by the Civil Administrator of Warangal, to whom the Chief Minister had delegated the powers conferred by section 5 of the regulation. On the same day Dr Lakshman Rao formally took cognizance of the offences alleged against the appellant. The trial proper commenced on 11 February 1950. During the course of the trial a total of twenty-one witnesses were examined on behalf of the prosecution, and one witness was examined for the defence. After the hearing of all evidence, the Special Judge delivered his judgment on 8 May 1950. In that judgment he found the appellant guilty of every charge levelled against him. He imposed the capital punishment of death in accordance with section 243 of the Hyderabad Penal Code, which corresponds to section 302 of the Indian Penal Code. In addition, the judge sentenced the appellant to several terms of imprisonment under sections 248, 368, 282 and 124 of the Hyderabad Code, which correspond respectively to sections 307, 436, 342 and 148 of the Indian Penal Code.

In the proceedings that followed the Special Judge’s judgment, the appellant filed an appeal before the High Court of Hyderabad. That appeal was initially heard by a Division Bench composed of two judges, Shripat Rao and S. Ali Khan. On 29 September 1950 the two judges delivered opposite opinions: Judge Shripat Rao held that the appeal should be dismissed, whereas Judge S. Ali Khan expressed the view that the appeal ought to be allowed and that the accused should be acquitted. Consequently, the matter was referred to a third judge, Justice Manohar Prasad, for a final decision. By his judgment dated 11 December 1960 Justice Manohar Prasad agreed with Judge Shripat Rao, dismissed the appeal and affirmed both the conviction and the sentences imposed by the Special Judge.

Subsequently the appellant applied for leave to appeal to this Court. The High Court of Hyderabad rejected that application, but this Court granted special leave to appeal on 11 May 1951. The present appeal therefore proceeded on the basis of that special leave. The hearing before this Court was limited to certain constitutional questions that the appellant raised, challenging the legality of the entire trial that had led to his conviction. The appellant contended that the procedure for trial prescribed in Regulation X of 1359 F had become void after 26 January 1960 because it conflicted with the equal-protection clause embodied in article 14 of the Constitution. Those grounds were set out in a separate petition filed by the appellant under article 32 of the Constitution, and, following the procedural rules of 1951(1), this Court agreed to consider the constitutional issues as preliminary points within the appeal itself. The further course of the appeal would depend on the outcome of the present hearing.

The principal argument presented by counsel supporting the appeal, Mr Peerbhoy, was that Regulation X of 1359 F markedly departed from the regular procedural safeguards provided by general law and consequently denied the accused several substantive benefits to which he would otherwise have been entitled. On that basis, he argued that the Regulation should be declared void under article 13(1) of the Constitution from 26 January 1950, rendering the conviction and the sentences imposed under that procedure illegal and unenforceable, and that both the Special Judge’s judgment and the High Court’s decision should be set aside. A second contention raised by the counsel concerned the legality of the transfer of the appellant’s case to the Special Judge, alleging that the authority to make such a transfer had not been properly delegated by the Chief Minister to the Civil Administrator in accordance with section 5 of the Regulation. Regarding the first contention, it was noted at the outset that the impugned Regulation was a pre-Constitution statute.

In this case, the Court observed that the Regulation in question was a pre-Constitution statute. When assessing whether any provision of such legislation conflicted with the equal protection clause, two principles articulated by the majority of this Court in Qasim Razvi v. The State of Hyderabad (1) on 19 January 1953 had to be applied. The earlier decision in Lachman Das Kewalram v. The State of Bombay (1) was also discussed in that judgment. First, the Constitution was held to have no retrospective operation; consequently, even if a law was discriminatory, it remained valid for transactions and rights that had arisen before the Constitution came into force. The citations (1) [1953] S.C.R. 589 and (2) [1952] S.C.R. 710 were placed after that statement. Second, article 13(1) of the Constitution did not automatically render an entire statute void after the Constitution commenced. Only those provisions that were inconsistent with the fundamental rights in Part III were to be struck down. The remainder of the statute continued to be effective. The Court quoted Qasim Razvi’s case, noting that the continuation of a trial after 26 January 1950 under the same Regulation did not, by itself, make the later proceedings invalid. What the accused could contend was that the portion of the trial that remained must not diverge materially from the normal standard, otherwise it would amount to a denial of equal protection of the laws under article 14. To determine whether such protection had been denied, the Court said it must first examine whether, after removing the discriminatory provisions of the Regulation, the accused could still obtain substantially the benefits of an ordinary trial, and second, whether those benefits had actually been provided in the present case. The Court also noted that the Special Judge had taken cognizance of the case on 5 January 1950, a date preceding the Constitution’s commencement. Accordingly, the Court held that the Special Judge had lawfully seized the case and that the very appointment of a Special Judge could not be said to create an inequality before the law. The trial, however, began on 11 February 1950, after the Constitution had become operative. The issue for consideration, therefore, was whether the procedure followed by the Special Judge, acting under the impugned Regulation, afforded the accused the substance of a normal trial, i.e., whether he received a fair measure of procedural equality. Counsel for the appellant, Mr. Peerbhoy, emphasized two groups of provisions in the Regulation that, in his view, set the procedure apart from that established under ordinary law.

The Court held that the first group of provisions challenged by counsel, which purported to eliminate the committal proceeding and replace the sessions procedure with a warrant procedure, could not be sustained. In reaching this conclusion, the Court relied on its earlier decision in Qasim Razvi’s case, reported in 1953 S.C.R. 589. That precedent established that, under the Hyderabad Criminal Procedure Code, a committal proceeding is not a mandatory prerequisite to a sessions trial. Specifically, section 267A of the Hyderabad Criminal Procedure Code empowers a magistrate to commit an accused to the sessions court for trial either without recording any evidence or after recording only a portion of the evidence, provided the magistrate is satisfied that sufficient grounds exist for such committal. Consequently, the absence of a formal committal proceeding does not deprive a Special Judge of jurisdiction to take cognizance of a case that arose before the Constitution came into force. The Court further explained that the disparity between the warrant procedure prescribed by the impugned Regulation for the Special Judge and the regular sessions procedure applicable under general law was merely technical and did not create a substantial inequality. Such minor procedural differences, the Court reasoned, did not invoke the mischief contemplated by article 14 of the Constitution. Since this issue had already been settled in Qasim Razvi’s case, the Court declined to entertain any further argument on the matter.

Turning to the second group of provisions, the Court examined the contention advanced by counsel that section 8 of the Regulation removed the accused’s rights of revision and transfer. The Court found this interpretation to be incorrect. It observed that section 8 of Regulation X of 1359 F states: “All the provisions of section 7 of the said Regulation shall have effect in relation to sentences passed by a Special Judge as if every reference in the said Regulation to a Special Tribunal included a reference to a Special Judge.” The phrase “said Regulation” refers to Regulation V of 1358 F, and section 7 of that earlier Regulation, inter alia, provides that “there shall save as hereinafter provided, be no appeal from any order or sentence passed by a Special Tribunal, and no court shall have authority to revise such order or sentence or to transfer any case from Special Tribunal or have any jurisdiction of any kind in respect of any proceeding before a Special Tribunal and no sentence of a Special Tribunal shall be subject to or submitted for confirmation by any authority whatsoever.” The Court clarified that section 8 incorporates only the portion of section 7 that pertains to sentences passed by a Special Judge, not the entire scope of section 7. A “sentence” refers to a final, definitive pronouncement that ends a criminal proceeding, whereas an “order” may be interlocutory and does not involve imposition of a sentence. Accordingly, the earlier broader prohibitions on revision and transfer do not fully apply to the present regulation. As a result, the right of an accused to seek revision of an order that has not culminated in a sentence remains intact, and the right to apply for transfer of a case, which is unrelated to sentencing, is likewise unaffected.

In interpreting the challenged Regulation, the Court observed that section 8 of that Regulation does not incorporate the entirety of section 7 of the earlier Regulation, but merely the portion of section 7 that deals with sentences passed by a Special Judge. The term “sentence” was explained to refer to the final, definitive judgment of a criminal court that culminates in a punitive award, as opposed to an “order,” which may be interlocutory or otherwise and does not involve the imposition of a punishment. Consequently, the scope of the earlier section 7 was considerably broader than that of the present section 8, and the limitations contained in the earlier statute were not reproduced in the newer provision. Because of this limited incorporation, the present Regulation does not bar revision of any order that has resulted in a sentence, nor does it affect the accused’s right to apply for a transfer of the case, since the right of transfer is unrelated to the existence of a sentence. These rights, the Court noted, are expressly preserved by section 10 of the current Regulation, which provides that the Code of Criminal Procedure applies to all matters unless the Regulation itself provides a different rule.

Reading section 8 of the present Regulation together with section 7 of the earlier Regulation, the Court concluded that the accused’s rights that have been taken away are, first, the right of revision against sentences that were non-appealable under the earlier law, and second, the provisions relating to the confirmation of sentences. The Court held that the first point was irrelevant to the present case because no question of a non-appealable sentence arose. The second point, however, was identified as a discriminatory element and was heavily emphasized by counsel for the petitioner. The Court then referred to section 20 of the Hyderabad Criminal Procedure Code, which sets out the procedure for confirming sentences. According to that provision, a Sessions Judge may impose any sentence authorized by law, but such a sentence does not take effect until the following conditions are satisfied: (i) if the sentence is imprisonment for ten years or more, it must be approved by the appropriate Bench of the High Court; (ii) if the sentence is life imprisonment, it must be sanctioned by the Government; and (iii) if the sentence is death, it must receive the assent of His Exalted Highness the Nizam.

Section 302 of the same Code provides that when a Sessions Court imposes a death sentence, a life-imprisonment sentence, or imprisonment exceeding ten years, the case file must be sent to the High Court and the execution of the sentence must be stayed until the High Court grants permission in accordance with section 20. Section 307 further provides that when the High Court affirms a death sentence or a sentence of life imprisonment, that judgment together with the case file must be forwarded to the Government for ratification within one week, and the sentence will not be executed until the Nizam assents in the case of death or the Government assents in the case of life imprisonment. These procedural requirements were highlighted to show the statutory framework governing the confirmation of severe sentences.

In this matter, the petitioner’s counsel argues that the death sentence imposed on his client has neither been confirmed by the High Court nor by H E H the Nizam, and that this failure amounts to discrimination that has severely prejudiced the accused, thereby furnishing a basis for annulling the sentence in its entirety. The counsel acknowledges that there is no dispute that section 8 of Regulation X of 1359 F must be declared invalid under Articles 13(1) and 14 of the Constitution to the extent that it removes the provision concerning confirmation of sentences found in the Hyderabad Criminal Procedure Code. However, the invalid portion is severable, and consequently the provisions of the Hyderabad Criminal Procedure Code relating to the confirmation of sentences must continue to apply. Those provisions do not, in any manner, alter the trial procedure prescribed by the Regulation. Section 20 of the Hyderabad Criminal Procedure Code merely provides that sentences of certain descriptions may not be executed unless the requisite authorities give their assent, and that condition becomes effective only at the stage of execution of the sentence. The trial and conviction of the accused are therefore unaffected by the withdrawal of the confirmation provision from the Regulation; the withdrawal is inoperative, and notwithstanding it the accused remains entitled to the rights conferred by the general law. The record in the present case shows that, after the Special Judge pronounced the death sentence on the appellant, he made no reference to the confirmation process required by section 307 of the Hyderabad Code, which corresponds to section 374 of the Indian Criminal Procedure Code. An appeal was nevertheless filed by the accused, and the complete case file was transmitted to the High Court. The Division Bench hearing the appeal was divided in its opinion, so the issue of confirming the death sentence did not arise before that Bench. The question was later specifically raised toward the end of the arguments before a third Judge to whom the matter was referred. It is noteworthy that, prior to this referral, a Full Bench of the Hyderabad High Court had held that the regulation’s provision on confirmation of sentences was void and inoperative, and that, despite that provision, sentences must be confirmed in accordance with the general law. Accordingly, the issue emerged as to whether confirmation should be effected solely by the third Judge or also by the two judges who had agreed in dismissing the appeal. Justice Manohar Prasad ruled that, since the entire case had been referred to him, he alone was competent to make the order confirming the death sentence.

It was held that the third Judge, to whom the entire case had been referred, alone possessed the authority to issue the order confirming the death sentence, and that Judge personally wrote the confirming order in accordance with the provision contained in the Hyderabad Code. Counsel for the accused, Mr. Peerbhoy, argued that the confirmation was illegal and wholly invalid because it had not been made in compliance with the Hyderabad Code. The Court declined to express any opinion on that contention at this stage of the proceedings. The record nonetheless showed a confirmation order for the death sentence that had been issued by a Judge of the High Court. The Court observed that, should that order be inconsistent with the applicable legal provisions, the issue could be examined by this Court when the appeal is heard on its merits. The Court further noted that this matter did not impinge upon the constitutional question that presently occupied its attention.

Section 20 of the Hyderabad Code, as previously cited, required that a death sentence could not be carried out unless the assent of His Exalted Highness the Nizam was obtained. Mr. Peerbhoy pointed out that such assent had not been secured in the present case. The Court responded that the Nizam’s consent was required only at the stage of execution, and that stage had not yet been reached. The final judgment of the High Court had been rendered on 11 December 1950. An application for leave to appeal was filed by the accused immediately thereafter, and that application was rejected on 2 January 1951. On 5 February 1951 an application for special leave was made to this Court, and the High Court itself stayed the execution of the death sentence during that period. This Court granted special leave on 11 May 1951, and thereafter stayed the execution of the death sentence by its own order pending the final disposal of the appeal.

The Court explained that a further question of whether additional confirmation by His Exalted Highness the Nizam was required could arise only if this Court ultimately upheld the death sentence that had been passed by the lower courts. Mr. Peerbhoy further submitted that, since 1 April 1951, the Indian Criminal Procedure Code had been introduced in the State of Hyderabad, and consequently the Nizam no longer possessed the power to confirm a death sentence, although such confirmation had been necessary at the time the sentence was pronounced by both the Special Judge and the High Court on appeal. The Court indicated that it did not consider it necessary at the present stage to analyse the effect of that statutory change. The Court added that, if the Nizam’s assent to the execution of a death sentence was a matter of procedure, it could be argued that the procedural law in force at the present moment constituted the proper law to be applied.

In this case the Court observed that if the question concerned a procedural rule, the law applicable at the present moment would be the appropriate law to be applied. Conversely, if the issue involved a substantive right, it could be argued that the law governing the parties at the date when the trial commenced should continue to apply. The Court, however, stated that it was not called upon to express any opinion on that point and deliberately declined to do so. Likewise, the Court did not express any view on whether the rights that the Nizam could exercise under section 20 of the Hyderabad Criminal Procedure Code were attached to his sovereign prerogative or were statutory rights exercisable by the person named in the statute. The Court noted that those questions might be examined when the appeal is finally heard on its merits. The Court concluded that no discrimination in procedural matters had occurred in the present case that could be said to have prejudicially affected the trial, and therefore the accused was not entitled to have his conviction and sentence set aside on that ground. The appellant also raised another issue concerning the delegation of authority by the Chief Minister to refer cases to the Special Judge. Counsel for the appellant stressed section 5(b) of the Regulation, which provides that offences may be “made over to the Special Judge for trial by the Chief Minister or by a person authorised by the Chief Minister in this behalf,” and argued that the delegate must be identified by name. The Court observed that the Chief Minister had issued a notification authorising all civil administrators of the districts to exercise, within their respective jurisdictions, the powers of the Chief Minister under the said section. It was argued that this practice did not comply with the provision. The Court found no substance in that contention, holding that delegates could be described by reference to their official designation and that the authority could be vested in the holder of a particular office at the time. The Court considered this to be a proper and convenient method of delegating the powers of the Chief Minister. In the Court’s opinion, the constitutional points raised by counsel for the appellant therefore failed. Consequently, the application under article 32 of the Constitution was rejected and the case was directed to be posted in the ordinary course for hearing on its merits. Justice Ghulam Hasan, agreeing with the order proposed by Justice Mukherjea, also concurred that the petition under article 32 should be dismissed, but he felt it necessary to make a few observations in view of his dissenting judgment in Qasim Razvi’s case. He noted that the majority judgment delivered by Justice Mukherjea on 19 January 1953, while interpreting the decision in Lachmandas Kewalram Ahuja v. The State of Bombay, had laid down the principle that the mere fact that some provisions of the impugned Regulation are discriminatory on their face is not sufficient to render the trial and conviction void.

In this matter the Court observed that the mere fact that the challenged Regulation appeared to be discriminatory on its face was not sufficient to render the trial and the conviction void under article fourteen read with article thirteen paragraph one of the Constitution. The Court explained that where the trial continued after the material date of 26 January 1950 under the challenged Regulation, it was necessary to examine whether the procedure followed after that date deprived the accused of the equal protection of the laws contemplated by article fourteen. The Court further held that if, despite the procedural scheme, the accused received substantially the same benefits that would have been available under the ordinary law, the trial and the conviction could not be declared void or illegal. The Court affirmed that the majority decision in the earlier case was binding and that the principle articulated by the majority could no longer be questioned. With this observation the Court expressed general concurrence with the view taken by Justice Mukherjea in the present case. It was noted that Regulation five of 1358 F, under which the Tribunal had been constituted to try the earlier Qasim Razvi case, differed in material respects from Regulation ten of 1359 F, under which the Special Judge tried the petitioner Habeeb Mohammad. The Court agreed with the finding that there was no defect in transferring the petitioner’s case to the Special Judge under section five paragraph (b) of the Regulation. Although the Special Judge had taken cognizance of the case before the Constitution came into force, the entire prosecution evidence, unlike in Qasim Razvi’s case, was recorded after 26 January 1950. The Regulation in question was challenged as void under article fourteen read with article thirteen paragraph one on five grounds: (i) that it excluded committal proceedings, (ii) that it replaced the sessions-trial procedure with a warrant procedure, (iii) that it removed the right of transfer, (iv) that it eliminated the right of revision, and (v) that it negated the right of confirmation by the Nizam in death-sentence cases. Regarding the first two grounds, Justice Mukherjea, following the earlier decision, held that under section 267A of the Hyderabad Criminal Procedure Code committal proceedings were not compulsory and that there was no substantial difference between the sessions trial and the warrant procedure applied in the petitioner’s case; consequently those two grounds of attack disappeared. Concerning grounds three and four, the Court agreed with Justice Mukherjea’s interpretation of section eight of the Regulation, recording that the right to apply for transfer had not been taken away and that the right of revision was denied only with respect to sentences that were not appealable.

In this case, the matter involved a charge of murder together with other serious offences, all of which were clearly appealable. The Court observed that the only discriminatory aspect remaining in the Regulation was that Section 7(2) of Regulation V of 1358 F, as made applicable by Section 8 of Regulation X of 1359 F, prohibited any sentence of a Special Tribunal from being submitted for confirmation by any authority. In effect, the Regulation removed the Nizam’s power to confirm a death sentence. The Court noted that this power was undeniably a valuable right for a person sentenced to death by either the Sessions Judge or the High Court. Counsel for the petitioner informed the Court that, during the preceding fifty years, no death sentence imposed by the courts of Hyderabad had ever been carried out, and that the Nizam had consistently exercised the right to commute death sentences to life imprisonment, as reflected in the cited precedent. The Court regarded the denial of this right in the Regulation as facially discriminatory and as depriving the petitioner of a valuable safeguard. Nevertheless, the Court conceded that this objectionable provision could be severed from the remainder of the Regulation. The Court also observed that the occasion for exercising the right had not yet arisen because the petitioner’s appeal was still pending before the Court. The Court explained that if the appeal were allowed or the sentence were reduced, the question of the Nizam’s confirmation of a death sentence would become moot. Conversely, if the appeal were dismissed, the petitioner would be entitled to invoke the right. The Court stated that it was not appropriate at this stage to decide whether the right was substantive or merely procedural, reserving that determination for the appropriate moment. Consequently, the Court dismissed the petition. The petitioner’s counsel and the respondent’s counsel were noted as being present.