Habeeb Mohammad vs The State Of Hyderabad

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

Court: supreme-court

Case Number: Criminal Appeal No. 43 of 1952

Decision Date: 5 October 1953

Coram: Mehr Chand Mahajan, B.K. Mukherjea, B. Jagannadhadas

In this matter, the Supreme Court of India delivered its judgment on 5 October 1953. The petitioner was Habeeb Mohammad and the respondent was the State of Hyderabad. The opinion was authored by Justice Mehr Chand Mahajan, who sat with Justices B.K. Mukherjea and B. Jagannadhadas. The case is reported in 1954 AIR 51 and 1954 SCR 475. Subsequent citations to this decision appear in R 1957 SC 747 (49), R 1957 SC 904 (9), R 1959 SC 484 (12), RF 1961 SC 715 (12), R 1968 SC 1402 (13), R 1971 SC 1586 (15, 16), R 1973 SC 618 (10), R 1973 SC 863 (22), RF 1976 SC 2140 (11), and D 1977 SC 472 (20, 21). The statutory framework relevant to the appeal comprised Article 136 of the Constitution of India, sections 162, 172 and 257 of the Criminal Procedure Code of 1898, and sections 53, 114 and illustration (g) of the Evidence Act, 1872.

The Court explained that while the prosecution is not required to call every available witness, it must summon those witnesses who are essential to the narrative on which the prosecution relies, regardless of whether their testimony ultimately supports or undermines the prosecution’s case. In the present case, the prosecution alleged that a Subedar had ordered the police to fire, yet it failed to examine the Deputy Commissioner of Police who had accompanied the Subedar and had directly witnessed the incident. The Court held that this omission generated an adverse inference against the prosecution and raised serious doubts about the fairness of the trial. The decision distinguished Adel Mohammad v. Attorney-General of Palestine (AIR 1946 PC 42) and relied on Stephen Senivaratne v. The King (AIR 1936 PC 289), while also referring to Ram Banjan Roy v. Emperor (IlR 42 Cal 422). The Court further stated that police diaries may be consulted by a criminal court solely to assist the inquiry or trial, and it would be improper for the court to base its judgment on the contents of those diaries or to seek confirmation of its evidentiary appreciation from them. Although the Supreme Court would not intervene under Article 136 for mere technical errors that did not cause a miscarriage of justice, it would interfere where the trial was not conducted in a fair and proper manner, such as when material eye-witnesses were not examined. The Court concluded that the absence of these essential witnesses meant that the trial had not been fair and proper, and therefore the conviction was unsustainable.

In the earlier judgment cited as 63 476, the Court observed that the statements recorded by the witnesses before the police were identical to those they gave in court. On that basis the Court held that the trial had not been fair or proper in substance and that the conviction should be set aside.

This appeal was listed as Criminal Appeal No 43 of 1952 and was taken on special leave granted by the Supreme Court of India on 11 May 1951. The appeal challenged the judgment and order dated 11 December 1950 of the Hyderabad High Court in Criminal Appeal No 598/6 of 1950. Counsel for the appellant was B. J. M. Mackenna, assisted by A. A. Peerbhoy and J. B. Dadachanji. Counsel for the respondent was V. Rajaram Iyer, assisted by R. Ganapathy Iyer. The judgment was delivered on 5 October 1953 by Justice Mahajan.

The matter before the Court was an appeal by special leave from the Hyderabad High Court’s decision that upheld the conviction of the appellant by the Special Judge, Warangal. The Special Judge had acted under Regulation X of 1359-F and had applied sections 243, 248, 368, 282 and 124 of the Hyderabad Penal Code, which correspond to sections 302, 307, 436, 342 and 148 of the Indian Penal Code. Sentences under each of those sections had been passed against the appellant.

The prosecution case, which had been largely accepted by the Special Judge and by a majority of the High Court, alleged that the appellant was the Subedar of Warangal in the year 1947. On 9 December 1947, at about ten in the morning, he proceeded to the village of Gurtur, situated within his jurisdiction, accompanied by a number of police officials and a police posse, ostensibly to raid the village and arrest certain “bad characters.” When a party of sixty or seventy villagers emerged to meet him and to make representations, the appellant ordered the policemen to open fire on the unarmed and peaceful villagers. As a result, tailor Venkayya and Yelthuri Rama were killed instantly by bullet wounds; Yelthuri Eradu and Pilli Malladu later succumbed to their wounds, while five other villagers were wounded but survived. The appellant is said to have supplied matchboxes and to have directed the policemen to enter the village and set fire to the houses, causing the destruction of one hundred ninety-one houses. Furthermore, about seventy villagers were tied up under the appellant’s orders, taken to Varadhanapeth, and held in wrongful confinement for a period; some were later released, while others were taken to Warangal jail and lodged there. The prosecution asserted that these acts were carried out by the appellant without any legal authority or justification, and that he, together with two other absconding accused, was guilty of murder, attempt to murder, arson and related offences.

The prosecution produced twenty-one witnesses to support its case. The accused, in his defence, examined only a single witness. The facts concerning the police firing, the deaths of the villagers, and the arrest of some of the villagers were not contested.

It was established as an undisputed fact that, on the date and at the time mentioned in the record, the houses in the village were set on fire and were completely destroyed. The defence, however, put forward a different version of events. According to the defence, the appellant never gave any order to open fire. The defence asserted that the villagers themselves had become violent, that they had tried to attack the officials and the police with force, and that any action taken by the officials was therefore a response made in self-defence. Further, the defence maintained that the persons described as raiders were later arrested according to the law, and that the burning of the houses was carried out by the villagers themselves rather than by the authorities. The defence also claimed that the appellant had entered the village solely for the purpose of arresting individuals who were allegedly engaged in anti-government activities and that his intention was to restore and preserve law and order. After examining all the material placed before him, the Special Judge concluded that the accused was guilty of each offence with which he had been charged. The matter was then taken on appeal to the High Court of Hyderabad, where a bench of two judges – Justice Sripatrao and Justice Siadat Ali Khan – delivered opposite opinions. Justice Sripatrao held that the appeal should be dismissed, while Justice Siadat Ali Khan was of the view that the appeal ought to be allowed and that the accused should be acquitted. Because of this divergence, the case was referred to a third judge, Justice Manohar Prasad, who, in a judgment dated 11 December 1950, adopted the opinion of Justice Sripatrao and dismissed the appeal. The present appeal has been filed against the majority judgment of the High Court, and the Supreme Court has granted special leave to hear it.

The appeal was initially presented before a constitutional bench, where the hearing was limited to certain constitutional questions raised by the appellant. The appellant challenged the legality of the entire trial that had resulted in his conviction, arguing that the procedure for trial prescribed in Regulation X of 1359-F became void after 26 January 1950 because it conflicted with the equal-protection clause contained in Article 14 of the Constitution. The constitutional arguments advanced by the appellant were rejected, and his application under Article 32 of the Constitution was dismissed. Consequently, the case was ordered to be placed in the ordinary docket for a merits-based hearing, which brings it before this Court. To understand the appellant’s contentions, a concise narrative of the incident and the subsequent events leading to his prosecution is required. The first information report filed against the appellant on 29 January 1949 recorded that the following individuals accompanied the Subedar on that morning: Moulvi Ghulam Afzal Biabani, Deputy Commissioner, District Police, Warangal; Abdul Lateef Khan, Circle Inspector of Police, Warangal, who is now an absconding accused; a Military Assistant; Naseem Ahmed, Sub-Inspector, Vardhanapeth; head-constables of police, Vardhanapeth; Abdul Waheed Girdavar; Abdul Aleem Sahib, Vakil of Hanamkonda; and a contingent consisting of seventy military men, ten policemen and eleven razakers. It also appears that another person, Abdul Wahid, Assistant D.S.P, accompanied this party, and that he submitted…

In the record, a reference was made to the case reported in [1953] S.C.R. 661, which contained a diary of the events that occurred at Gurtur on the same day. That diary briefly stated that the people rebelled, that the police were compelled to open fire, and that seventy persons were arrested. The Circle Inspector of Police, Abdul Lateef Khan, who was later identified as the absconding accused, also submitted a diary on the ninth of December describing the incidents of that day. According to his account, a crowd estimated to number five thousand pursued two persons who had been dispatched to the village, fired upon the policemen, and hurled stones using slings, an attack during which the Jamadar named Kankiah sustained injuries. He further recorded that a bullet fell near the Nayeb Nazim, that the unlawful assembly shouted slogans against the Government and attempted to encircle the police, and that despite attempts by the police to reason with the crowd, the mob did not comply. The crowd was armed with a variety of weapons, including guns, spears, lathis, axes, sickles and slings, and, in view of the delicate circumstances, the senior officers present ordered the police to open fire in self-defence.

On the basis of this information, Sub-Inspector Turab Ali, who also served as the Station-House Officer at Vardhanapeth, recorded a first-information report under section 155 of the Hyderabad Penal Code on 9 December 1947 against Narsivan Reddy, a Congress leader from Mangp Banda, and several others under sections 124, 248, 272 and 82 of the same code. The facts set out by Abdul Lateef were reiterated in this report. On the same date, Turab Ali prepared a panchnama, the five witnesses being Khaja Ahmed Wali Hyderi, a revenue inspector residing at Vardhanapeth, and Md Abdul Wahid, a special Girdavar of that locality. The narrative contained in Abdul Lateef’s diary was recited in the panchnama, and attached to it was a list of articles and weapons seized from those arrested on 9 December 1947. The inventory enumerated lathis, spears, sickles, churas, a muzzle-loader and several axes.

Two days later, on 11 December, the appellant submitted a demi-official report of the Gurtur incident to the Government, which largely reproduced Abdul Lateef’s account and fully set out the justification for the police firing. Whether Moulvi Afzal Biabani, the Deputy Commissioner of Police, Warangal, also forwarded a report of his version of the incident to the Government or to the Inspector-General of Police remains a point of debate. The Government replied to the Deputy Officer’s letter on 21 January 1948, requesting a report from the Subedar concerning the amount of collective fine to be imposed on the villages mentioned in the Deputy Officer’s correspondence. The Government also asked the Subedar to submit a resolution for the appointment of penal police so that sanction could be taken according to the prescribed procedure.

Subsequently, on 13 March 1948, a challan was presented in the Court of the Special District Judge of Hyderabad against the seventy persons arrested on 9 December 1947, charging them under sections 124, 248 and related provisions. The accused were then remanded to Central Jail, Warangal, with the court directing the police to produce any material objects in the case at the next hearing scheduled for 31 March 1948. On that date the special magistrate committed twenty-two individuals to the Court of Session to be tried under sections 124, 293 and 248 of the Hyderabad Penal Code, while the remaining arrested persons were discharged. The Special Judge fixed the trial for 18 May 1948, but at some point in May the police filed an application seeking withdrawal of the case. The court therefore acquitted all the accused, and the proceedings initiated by the first-information report of Abdul Lateef, Circle Inspector, were terminated. The record does not explain the grounds on which the police withdrew the case.

In this case, the Court noted that the persons arrested on 9 December 1947 were remanded to the Central Jail in Warangal and that the police were directed to produce any material objects related to the case at the next hearing scheduled for 31 March 1948. On that date the special magistrate committed twenty-two of the accused to the court of session for trial under sections 124, 293 and 248 of the Hyderabad Penal Code, while the remaining persons who had been arrested were discharged. The Special Judge then fixed the matter for hearing on 18 May 1948. On that day, or on some subsequent date in May, the police filed an application seeking to withdraw the case. Acting on that application, the court acquitted all of the accused and terminated the proceedings that had been initiated by the first information report filed by Abdul Lateef, Circle Inspector.

The Court further observed that the record did not explain the reasons why the police withdrew the case against the accused. It was also unclear whether any investigation concerning the incidents at Gurtur was undertaken by the Government of India between the withdrawal of the case and the police action taken in Hyderabad in September 1948. Nevertheless, the Court found that shortly after the police action had concluded, a statement was recorded on 5 November 1948 by B. J. Dora Raj, Deputy Collector, from a prosecution witness named Ranganathaswami. The statement, which bears the Deputy Collector’s endorsement indicating that it was taken before him, read in part as follows: “On 9 December 1947, at about 10:30 a.m., Habeeb Mohammad the Subedar, Biabani the Deputy Superintendent of Police, Naseem the Sub-Inspector, Abdul Wahid, Special Girdavar and about seventy persons comprising State Police, Razakars and Abdul Aleem, Vakil, came to the village of Gurtur, taluk Mahaboobad, district Warangal. The policemen, on the order of the Deputy Superintendent of Police, burnt nearly two hundred houses, causing damage estimated at one lakh rupees. The tailor Ramulu and two dheds were shot dead on the order of Biabani; the names of the dheds were unknown to me. Five or six persons were injured by bullets, their names also unknown to me. At that time I was engaged in teaching. Seventy persons were arrested on the allegation that they were Congressmen and were forcibly taken to the Warangal jail. Gold ornaments weighing eight tolas, valued at four hundred rupees, were taken from the women of Apana Raju and Narsivan Raju. I suffered a loss of six hundred rupees because the house in which I was staying was burnt, and the school peon lost three hundred rupees as his house was also burnt. The Subedar was present throughout these events. After taking a bribe of six hundred rupees, the authorities released the seventy persons who had been jailed. I personally witnessed these events and have read the statement; it is correct.” The Court emphasized that the statement was read over in court, admitted as correct, and that it formed part of the evidentiary record. Additionally, the Court noted that the Assistant Civil Administrator had examined seventy-six villagers on 28 November 1948, although the content of those examinations was not set out in the present excerpt.

On 28 November 1948, a statement was recorded that described events that had taken place on 9 December 1947 at about 9:30 a.m. The statement recounted that the Subedar of Warangal, the Deputy Commissioner of Police, Biabani (who wore a kanti on his neck), the Military Assistant, the Circle Inspector of Warangal, the Sub-Inspector of Police of Vardhanapeth, the Head-Constable of Police of Vardhanapeth, a Girdavar, together with military police and approximately forty other persons, arrived in the village after coming from Okal and set up camp on the western side of the settlement. Roughly one hundred to one hundred and fifty villagers approached the contingent, at which point the police force opened fire. The gunfire caused the deaths of Olsuri Eriah, Olsuri Ramiah and Kota Konda Venkiah. Several others—Batula Veriah, Basta Pali Maliah, Olsuri Veriah Yeliah, Ladaf Madar Dever Konda Lingiah and Beara Konda Peda Balraju—were wounded by bullets. After the shooting, the officers entered the village, marched through the bazaar, broke into houses and looted money and clothing. They then surrounded the village, gathered the inhabitants, forced them out, made them lie face-down, tied their hands and kept them in that condition from ten o’clock in the morning until three o’clock in the afternoon. At three p.m., the Subedar handed match-boxes to his men and ordered the burning of the houses; the houses were set alight. The Subedar is reported to have caused the villagers to stand and declared, “see the Lanka Dahan of your village.” The Deputy Commissioner repeated the same statement. Following the arson, the villagers were beaten and taken to Mailaram, from where they were transported by car to the Vardhanapeth police station. The looting of household utensils caused damage estimated at one lakh rupees. The statement also alleged that the modesty of four women had been outraged; the women, out of shame, did not disclose their names, and their identities were said to be known only to the State Congress. On the basis of these two statements, the Inspector of C.I.D. District Police, Md Ibrahim Ghori, wrote to the Sub-Inspector of Police of Nalikadur, district Warangal, directing that a first information report be filed for offences punishable under sections 248, 312, 331 and 368 of the Hyderabad Penal Code against the Subedar, and that the two original statements be forwarded to the court together with the report. He also indicated that he would personally investigate the case. Upon receipt of this letter, the Sub-Inspector recorded the first information report on 29 January 1949 in accordance with the instruction. Although the report was filed on that date, the investigation against the appellant did not commence until 8 August 1949. No explanation was provided in the record for the more than seven-month delay, and the learned Advocate-General was unable to explain the cause of this postponement.

In this case, the counsel who appeared on behalf of the State before the Court was unable to give any explanation for the long delay that had occurred in investigating the offences alleged to have been committed by the appellant. The record showed that on 28 August 1949 an order made under section 3 of Special Tribunal Regulation V of 1358F, which was then in force, directed that the appellant should be tried before Special Tribunal (A). Subsequently, the Military Governor granted sanction for the prosecution of the appellant on 20 September 1949. Later, on 13 December 1949 the Hyderabad Government enacted a new regulation, Regulation X of 1359-F, which terminated the Special Tribunals that had been created under the earlier regulation. That new regulation also provided for the appointment, powers and procedure of a Special Judge. Accordingly, on 5 January 1950 the case against the appellant was transferred to Dr. Laxman Rao, who had been appointed as Special Judge under the new regulation by an order of the Civil Administrator of Warangal, who had been delegated authority under section 5 of the regulation. On the same day Dr. Rao took cognizance of the offences, and the result that had been indicated in the earlier proceedings was confirmed. The appellate advocate, Mr. McKenna, who argued the appeal on behalf of the Subedar, asserted that his client had suffered considerable prejudice as a result of several serious irregularities and illegalities that occurred during the trial before the Special Judge. He claimed that the trial had shown a grave disregard for the correct legal procedures and had violated fundamental principles of criminal jurisprudence, resulting in a denial of justice and causing a substantial miscarriage of justice. The first ground of attack relied upon by the appellant concerned the non-production of a number of material witnesses by the prosecution. Among those witnesses was Moulvi Afzal Biabani, who held the position of Deputy Commissioner of Police and who had accompanied the Subedar on the day of the incident, thereby having personal knowledge of the events of 9 December 1947. The appellant argued that these witnesses were alive and available, and that their testimony was essential for developing the factual narrative on which the prosecution’s case was based. The appellant maintained that the prosecution should have called these witnesses regardless of whether their evidence would have supported or undermined the prosecution’s case. The factual background relating to Moulvi Biabani was as follows: it was admitted that he was a member of the party that visited the village of Gurtur on the morning of 9 December 1947, and that he therefore witnessed the occurrence in question. The statement of Ranganathaswami, which was annexed to the first information report against the appellant, alleged that the firing had taken place on Biabani’s orders and that the subsequent burning of houses had also been carried out under his direction. Moreover, the challan prepared on the basis of the first information report, which had been drafted in accordance with the directions contained in the letter of Md. Ibrahim Ghori, Inspector of CID, District Police, implicated the appellant and the two absconding accused, while shifting the responsibility for the crimes of 9 December onto Biabani, Deputy Commissioner of Police.

The charge against the accused asserted that the accused had used the pre-text that the village of Gurtur was the headquarters of the communists and, with the assistance of an armed police force, raided the village. It was further alleged that the villagers had approached the accused, but that Accused I, the appellant, acting in accordance with the general policy of the Ittehad-ul-Muslimeen which aimed to kill Hindus and force them to flee Hyderabad, opened fire on the villagers. As a result of that firing, two villagers were killed on the spot, two more died later in hospital, and five others suffered serious injuries. When the villagers fled, the appellant is said to have handed match boxes to the police constables and ordered them to enter the village dwellings, to loot, to set fire to the houses and to molest the villagers.

The challan placed the entire liability for the offences committed on 9 December on Habeeb Mohammad, even though the documents annexed to the first information report had originally assigned that liability to Biabani, the Deputy Commissioner of Police. The investigating officer, identified as PW 21, was examined on this point and he testified that, during the course of his investigation, the offence was proved only against the appellant and the two absconding accused. He further stated that it had not been established that Ghulam Afzal Biabani, Deputy Inspector General of District Police; Nasim Ahmad, Sub-Inspector of Police; the Jamedar of Police, Vardhanapeth; Abdul Wahib, Revenue Inspector; Abdul Alim, pleader; or any member of the military police had committed, aided or abetted any crime, and therefore their names were omitted from the charge sheet.

Although the prosecution’s list of witnesses named Biabani as PW 2, for reasons not explained the prosecution did not produce him as a witness at trial. No justification was offered for withholding this material witness, who was the officer most senior after the Subedar present at the time of the incident, and who, at the time of trial, occupied an important government post and would presumably have been able to give the court an accurate and truthful account of the events.

On 24 March 1950, the appellant filed an application before the Special Judge alleging, inter alia, that a number of police officers and other officials who had been present at the scene—including Ghulam Afzal Biabani, Kankiah, Abdul Wahid, Girdawar (then confined in Warangal jail), Naseem Ahmad, Sub-Inspector of Police, Vardhanapeth, Khaja Moinuddin, Police Jamedar, Abdul Ghaffar Khan, Reserve District Police Inspector, Turab Ali, Sub-Inspector, Vardbanapeth, and Shaik Chand, Police Inspector—were neither arrested nor subjected to any legal action. The application further claimed that the investigating officer Ibrahim Ghori and the Sub-Inspector of Nallikudur police station were not produced in court, and that although Kankiah Jamedar was presented to give evidence, Ghulam Afzal Biabani, former Deputy District Police Commissioner, was not produced. It was alleged in this

In the application filed by the accused, it was recorded that when an objection on his behalf was raised, the Government Pleader responded that the individual could not be produced, but indicated that the honourable court could summon him if it so desired. The application further alleged that the conduct of the prosecution demonstrated an attempt to incriminate an accused who was, in their view, not guilty, while simultaneously seeking to protect the police constables and officers involved. It was asserted that the Government Pleader had refused to produce what was described as the best evidence available in the case. The application argued that, under those circumstances, it would be consistent with the demands of justice for the court to investigate the facts thoroughly and to summon the persons named in the application under section 507 of the Code of Criminal Procedure, thereby recording their statements in order to uncover the true facts of the matter.

The application also stated that Ghulam Afzal Biabani, an ex-Deputy District Police Commissioner who at the time was serving in the Police Training School, had sent a report concerning the incident to the Inspector-General of Police and to the Secretary of the Home Department. Upon consideration of this application, the learned Judge entered an order stating that the accused’s application was not worth consideration because neither the complainant nor the accused could persuade the court on the basis of the submission. The Judge explained that the power to summon witnesses could be exercised only to rectify a defect in the evidence and not for any other purpose. The Judge emphasized that the accused possessed the full right to adduce defence witnesses, and that if any omission occurred after the defence evidence had been produced, the court itself would address the omission. The Judge further described the application as having been filed prematurely.

Despite the foregoing, the Judge ordered that any report made by Ghulam Afzal Biabani, if it existed, should be summoned. In the judgment convicting the appellant, the learned Judge made several observations concerning Biabani. The Judge expressed regret, based on information from the investigating officer Kesera Singh, that Biabani was still in service, specifically in the capacity of Principal of the Police Training School. The Judge questioned whether Biabani would impart to subordinate officers the lesson of protecting life and property. The Judge noted that Biabani was not being challenged solely because he was a police officer, and warned against adopting a reasoning that because the police had allowed Biabani to escape scrutiny, the court should likewise allow Habeeb Mohamed to escape liability. The Judge characterised such logic as “you left one, therefore I leave the other” and deemed it untenable. The Judge further observed that such remarks could not be made without first giving Biabani an opportunity to explain his conduct.

Before the High Court, counsel for the appellant argued that the police should have produced Ghulam Afzal Biabani to establish that the appellant had ordered the firing. In the alternative, counsel suggested that the court should have summoned Biabani as a witness of the court.

The Court explained that the argument concerning the omission of Ghulam Afzal Biabani was disposed of by referring to the decision of the Privy Council in Adel Mohammad v. Attorney-General of Palestine (1). In that decision it was observed that the prosecution is not obligated to summon witnesses whose names appear in the information if the prosecution chooses not to call them for the purpose of cross-examination. The Court noted that the prosecutor retains full discretion to decide which witnesses to call, and that the Court will not intervene in the exercise of that discretion unless it is shown that the prosecutor was influenced by an improper motive. Applying those observations, the Court held that it could not be said that the prosecution had erred in failing to produce Biabani, nor that any hidden motive had guided the decision.

The judgment further stated that there was no reason for the Court to interfere with the discretion exercised by the Special Judge under section 507 of the Hyderabad Criminal Procedure Code. The Court concluded that the evidence of Biabani could not be regarded as essential for reaching a just decision in the case. In contrast, the dissenting judge, Siadat Ali Khan J., expressed the view that Biabani, being the second senior officer present at the incident, had not produced a report and that this created a lacuna in the record. Accordingly, the dissenting judge argued that the Court had a duty to summon Biabani as a witness.

The third judge, Manohar Prasad J., recorded that counsel for the accused, Mr Murtuza Khan, conceded during his arguments that the documentary evidence suggested the order to fire had been given by the appellant. Mr Murtuza Khan, a retired judge of the Hyderabad High Court, later filed an affidavit contesting the correctness of that observation. On the pivotal question of whether the appellant had issued the order to fire, the Court noted that the sole testimony available was that of P.W. 10, Kankiah, a police jamadar. This testimony conflicted with the statements contained in the document accompanying the first information report, and even the jamadar’s deposition indicated that he had taken instructions from Biabani before carrying out the appellant’s orders.

Given these circumstances, the Court found that Biabani, a senior police officer present at the scene, was a material witness whose evidence was of considerable importance. The Court emphasized that the prosecution had a duty to examine him, especially since there was no allegation that Biabani would be untruthful if produced. Moreover, the Court observed that Biabani was, at the time of trial, in charge of the Police Training School and was therefore readily available. In the Court’s opinion, the failure to produce him gave rise to an adverse inference against the prosecution under illustration (g) to section 114 of the Indian Evidence Act. This inference reflects the prejudice suffered by the appellant due to the omission of a key witness.

In this case the Court observed that withholding the witness from the trial raised serious concerns about the fairness of the proceedings. The Court felt that the appellant’s defence had been substantially damaged because the prosecution and the trial judge failed to produce the witness. The Court noted that the reasons offered by the learned judge for not summoning the witness did not demonstrate a careful consideration of the statutory provisions or of the consequences of leaving such an important witness unexamined. The Court further stated that the language of the Special Judge’s order showed a lack of judicial balance in a matter that required thorough deliberation.

The Court rejected the reliance placed on the Privy Council’s decision in Adel Mohammad v. Attorney-General of Palestine. It explained that the cited decision arose under the Palestine Criminal Code Ordinance, 1936, and therefore had no relevance to the question before the Court. In that Palestinian case the issue was whether an accused had a right to have witnesses named in the information, but not called by the prosecution, presented for cross-examination by the defence. The learned Chief Justice of Palestine had ruled that the prosecution was under no obligation to call such witnesses. The Court of Criminal Appeal had affirmed that, as a matter of law, the prosecution was not required to produce those witnesses, although it suggested that best practice would be to tender them at the close of the prosecution’s case so that the defence could cross-examine them if desired.

The Privy Council had observed that there was no duty on the prosecution to tender those witnesses and questioned whether the practice endorsed by the Court of Criminal Appeal adequately recognised the prosecutor’s discretion in selecting witnesses. The Council added that the court would not intervene in the exercise of that discretion unless it could be shown that the prosecutor was motivated by an improper purpose. No such suggestion had been made in the Palestinian case.

Applying that reasoning to the present matter, the Court found that the point considered by the Privy Council was somewhat different from the issue now before it. Nevertheless, the Court could not accept that there was no improper motive for the prosecution’s decision not to produce the witness. The Court concluded that the apparent purpose was to protect the witness, who might have been a co-accused, and also to shield the other police officers and men who had taken part in the raid. Accordingly, the Court held that the proper rule applicable in this country on whether the prosecution must produce material witnesses was the one set out by the Privy Council in Stephen Senivaratne v. The King.

In the case of Stephen Senivaratne v. The King, the Privy Council articulated the principle that the prosecution does not possess an absolute duty to summon every possible witness merely because a general rule, such as that articulated in Ram Ranjan Boy v. Emperor, suggests that all available eye-witnesses ought to be called even when those names appear on the defence list. The Council expressly declined to impose a rigid rule that would limit prosecutorial discretion, noting that each matter must be judged on its own factual matrix. While the Council recognised the importance of candour and fairness by those conducting prosecutions, it cautioned against a blanket requirement that the prosecution present witnesses without regard to their number, reliability, or the risk that the prosecution might inadvertently assume the role of the defence. The Council warned that such a practice could create confusion, especially where a prosecution calls witnesses only to immediately undermine them through cross-examination. Nevertheless, the Council affirmed that witnesses who are essential to the narrative on which the prosecution’s case rests must be called, regardless of whether their testimony ultimately supports or undermines the prosecution’s position.

Subsequent Indian jurisprudence, as expressed by Jenkins C.J. in Ram Banjan Boy v. Emperor, has consistently held that the purpose of a criminal trial is not to sustain a preconceived theory at all costs but to investigate the offence and to determine the guilt or innocence of the accused. The public prosecutor’s duty, therefore, is to represent the Crown rather than the police, and this duty must be discharged with fairness, courage, and a full awareness of the responsibilities attached to the office. In capital cases, the prosecutor is expected to place before the court the testimony of all available eye-witnesses, even if those witnesses have been introduced by the defence and even if they provide divergent accounts. This approach is grounded not in a technical rule but in common sense and humanity. Although the Privy Council in Stephen Senavaratne v. The King, a decision originating from Ceylon, did not fully endorse the Indian view, it nevertheless confirmed that the prosecution must examine every material witness capable of narrating the events that form the foundation of its case, with the final determination dependent on the specific circumstances of each trial. In the present matter, the appellant suffered considerable prejudice because the prosecution chose not to examine Biabani and the other officers, thereby denying a fair trial.

The Court observed that the prosecution had failed to call Biabani and other officers who were present at the incident, and that the conviction was based solely on the testimony of the police jamadar. In the absence of Biabani and the other eyewitnesses who had admittedly been on the scene, the conviction could not be said to have resulted from a fair trial, especially because no satisfactory explanation for this omission had been offered or even attempted. The Court further identified another serious irregularity that, in the view of counsel for the appellant, undermined the trial. The Special Judge had declined to summon six defence witnesses that the appellant wished to produce. On 24 March 1950 the appellant submitted a list of defence witnesses containing the following persons: Moulvi Syed Hussain Sahib Zaidi, former District Superintendent of Police, Warangal, then serving as special officer of Bahawalpur State, Pakistan; Moulvi Abdul Hamid Khan, former Secretary of the Revenue Department, now Minister for Sarf-e-Khas Mubarak; Nawab Deen-Yar-Jung Bahadur, former Inspector-General of Police, Districts and City; Moulvi Abdul Rahim, former Railway Minister; Rai Raj Mohan Lal, former Law Minister; and Moulvi Zahir Ahmed, former Secretary to the Government, Home Department, presently residing in London. The first witness was expected to testify that the inhabitants of Gurtur had engaged in destructive activities, thrown stones at the police, and that the police had fired in self-defence on the order of the Deputy Police Commissioner. He was also said to be able to reveal many other facts. The second witness was to give evidence regarding the fate of the D. O. letter sent by the accused and to disclose additional information. The third witness was expected to confirm the report of Ghulam Afzal Biabani, Deputy Commissioner of Police, and to provide further facts about the incidents at Gutur. The fourth and fifth witnesses were described as being called to testify about the accused’s efficiency and his behaviour towards ryots, together with other relevant matters.

On 14 April 1950 the counsel for the accused moved that, instead of sending for Syed Hussain Zaidi, who resided in Pakistan, the court should summon Abdur Rasheed Khan Sahib, a former Assistant Superintendent of Police from Warangal district. The Special Judge considered the application and issued an order rejecting it. The judge noted that the original list filed on 24 March 1950 named Zaidi as the first defence witness and that the appellant himself had indicated that Zaidi would repeat whatever he had heard from other policemen. The judge could not understand how, given this description, Abdur Rasheed could be called in place of Zaidi or what evidence he could provide. Accordingly, the request to call Abdur Rasheed Khan Sahib was disallowed. Regarding witness No. 2, Abdul

In this case, the Judge considered the application to call the defence witness Abdul Hameed Khan. The Judge noted that the witness was proposed to testify about the accused’s efficiency and his behaviour toward his subjects. He observed that neither efficiency nor behaviour formed a point of issue in the proceedings and that such matters were not relevant facts under section 216 of the Criminal Procedure Code and sections 110, 3 and 4 of the Evidence Act. The Judge further observed that the witness’s statement was said to include an account of the action taken on a D-O-letter issued by the accused, but no such document had been produced. Consequently, the Judge directed that Abdul Hameed Khan could be summoned only to prove the existence of the missing paper, and he emphasized that the accused’s statement concerned a different subject than the one for which the witness was being called. Turning to the third proposed witness, Nawab Deen Yar Jung Bahadur, the Judge explained that he was to certify a report of Ghulam Afzal Biabani, Deputy Director of Police. The Judge reported that requests for the said report had been made to the offices of the Inspector-General of Police, the Home Secretary, and the Civil Administrator of Warangal, and that all these offices replied that no such report existed. In light of those replies, the Judge held that it was unnecessary to summon Deen Yar Jung Bahadur because there was no report to certify. Regarding witnesses four and five, the Judge reiterated that they were proposed to speak about the accused’s efficiency and behaviour, which again were neither issues nor relevant facts. With respect to witness six, who resided in London, the Judge found that no procedural mechanism existed to summon a witness situated abroad. Finally, after reviewing the extensive list of witnesses and the defence statement, the Judge concluded that the applications were intended only to prolong the trial unjustifiably and to disturb the administration of justice; therefore, the application dated 24 March 1950 was disallowed.

The Judge then referred to section 257 of the Criminal Procedure Code, which corresponds to section 216 of the Hyderabad Criminal Procedure Code. The provision states that if an accused, having entered his defence, applies to the magistrate for a process to compel attendance of a witness for examination or cross-examination, or for the production of any document or other thing, the magistrate shall issue such process unless he records in writing that the application is made for the purpose of vexation, delay, or defeating the ends of justice. The Court was unable to appreciate the learned Judge’s view that the application to summon defence witnesses who were available in Hyderabad was vexatious in nature and intended to delay or defeat the ends of justice.

In this case the Court observed that a dispute existed between the prosecution and the defence concerning the motive attributed to the accused. The prosecution alleged that the accused acted in accordance with the policy of the Ittehad-ul-Muslimeen, aiming to destroy the Hindu population and drive them out of Hyderabad, and that he had gone to the village in question with the assistance of police to accomplish that aim. The defence contended that the accused was entitled to rebut this allegation and to present his own version of events. According to the defence, the village was experiencing a state of rebellion; the crowd that gathered did so with hostile intentions, was armed, and was not peaceful. The accused maintained that he bore no hostility toward the Hindus, that his conduct toward them had always been amicable, and that he harboured no intention of exterminating them. The Court noted that, under section 53 of the Indian Evidence Act, evidence relating to the character of an accused and to his state of mind is always relevant in a criminal proceeding. Accordingly, evidence concerning the disturbed condition prevailing at Gurtur and the destructive activities of its inhabitants was also deemed admissible.

The Court further explained that, while the relevance of other witnesses might be debated, three individuals listed among the witnesses were unquestionably material for the defence. In criminal trials, a person’s character often assists in interpreting his conduct and in determining his innocence or guilt. Knowledge of a person’s character can render certain acts either suspicious or beyond suspicion. Moreover, even when sentencing is considered, an accused may be permitted to prove a general good character. Because the prosecution’s accusation was that the appellant acted pursuant to the Ittehad-ul-Muslimeen’s policy with the purpose of exterminating Hindus, the appellant was permitted to introduce evidence showing that he did not possess such a mindset. The defence argued that, throughout his official career, the appellant’s behaviour toward Hindus had consistently been favourable, making any notion of a desire to exterminate them implausible.

Nevertheless, the Court observed that even if the trial judge correctly concluded that character evidence would not have materially altered the outcome, the exclusion of other testimony was still significant. The Court identified additional witnesses who could have testified regarding whether Biabani had submitted a report and what version he had given, who could have described the conditions at Gurtur at the time of the incident, and who could have drawn upon reports already filed with the Home Department and the Inspector-General of Police concerning the conduct of Gurtur’s villagers. Such testimony would have materially assisted the defence by supporting the appellant’s contentions. In the Court’s opinion, the trial before the Special Judge had been compromised by the failure to summon these defence witnesses, thereby denying the accused the fullest opportunity to present his case.

In this case, the Court observed that the Special Judge had compromised the trial by failing to summon defence witnesses who were present in Hyderabad and who could have materially assisted the defence in establishing its version of events. The Court noted that the first defence witness, or a suitable substitute, might have been able to testify about the fate of the weapons that were alleged to have been seized from the villagers on 9 December 1947, weapons about which a panchnama had been prepared, and to confirm whether those weapons actually existed. Such testimony, the Court explained, would have illuminated the character of the mob that was subsequently fired upon and might have revealed that the order to fire originated from Biabani rather than from the accused as initially alleged by Ranganathaswamy. Consequently, the Court found that the accused had been denied the fullest opportunity to defend himself.

The Court also gave careful consideration to the submission made by counsel for the appellant regarding the police investigation into the offences for which the appellant had been charged. Counsel argued that after the First Information Report was lodged in January 1949, the investigation was conducted in a perfunctory manner and that an unexplained delay of more than six months before the investigation was completed had seriously prejudiced the defence. It was further suggested that during this interval the police may have been manufacturing evidence against the accused without recording any statements from the villagers in the case diaries. To address this contention, the Court set out a portion of the testimony of P.W. 21, the investigating officer, upon which the appellant relied.

In cross-examination, P.W. 21 testified as follows: “I went for investigation in the month of Mehir 1358-F (August 1949). Union officers did not investigate prior to my investigation; not even any Collector undertook any investigation. Mohd Ibrahim Ghori, Inspector, C.I.D., informed the Sub-Inspector of Nallikadur through a D. O. dated the 29th Isfandar 1358-F, to issue an information report. I have no knowledge which officer ordered Mohd Ibrahim Ghori to investigate and who signed on it. The Superintendent of C.I.D. Police, whose name I do not remember now, gave order to Mohd Ibrahim Ghori to investigate the facts. Now the case diary is not with me. The names of Mohd Ibrahim and Achal Singh are not mentioned in the witnesses lists of A & B Charges under sections 312 and 331 as mentioned in the report, but during my investigation these offences were not proved. The Superintendent of C.I.D. Police gave me order to investigate but I do not remember the date of that order now… I prepared panchnamas on 8th Mehar 1358-F, probably I reached Gurtur one or two days earlier. I finished circumstantial investigation within eight days. Afterwards proceedings for permission were continued. At last on 28th August 1949, the Civil Administrator gave order to file a challan… In the course of my investigation, it was proved that…”

The Court concluded that the omissions and delays highlighted by the witness’s statement, coupled with the failure to call crucial defence witnesses, amounted to a denial of a fair trial. Accordingly, the Court held that the accused must be afforded the opportunity to present the omitted evidence and that the proceedings should be set aside pending a proper re-examination in accordance with the principles of natural justice.

In this case the investigation concluded that the accused Habeeb Mohammad, Abdul Latif Khan and Abdul Wahid had committed the offenses alleged against them, while it was not established that Ghulam Afzal Biabani, Deputy Inspector-General of the District Police, the Assistant of Force, Nasim Ahmad Saheb, Sub-Inspector of Police, the Jamedar of Police at Vardhanapeth, Abdul Wahid the Revenue Inspector, Abdul Alim Saheb the pleader of Hanamkonda, the seventy military men mentioned in the information report, the police personnel and the Razakars had either committed crimes or participated as abettors; consequently none of these names appeared in the challan. The Court explained that because the alleged crimes against those persons were not proved, they could not be identified, the witnesses were not acquainted with them, and therefore no prosecution could be launched against them. Although the information report listed seventy military men, the investigation discovered that the individuals present were actually seventy policemen, whose personal identities could not be ascertained, but who were known to belong to the Warangal district police force; the investigator was unable to determine how many of them were Hindus or Muslims. The diary entry did record the names of Kankiah, a police Jamedar (head-constable), and Abdul Latif Khan, a Circle Inspector, and these names were produced as evidence. When questioned, Kankiah admitted that he could not now identify the policemen nor recall the exact number who accompanied him to Vardhanapeth, and the register at the Superintendent’s office that might have contained such details was destroyed during the police action, preventing verification. The line inspector also stated that he could not confirm whether the register had been destroyed and could not remember the names of the policemen, leading the investigator to omit any reference to them in the case diary and to consider the line inspector’s involvement unnecessary for the record. Further attempts to identify the seventy men from other sources also failed, leaving their identities unknown. The investigator noted that Ghulam Afzal Biabani was still alive, in service, and reportedly serving as Principal of the Police Training School, but he could not determine who the Assistant of Force was, nor could he locate Nasim Ahmad or ascertain his post. No inquiry was made regarding the Police Jamedar of Vardhanapeth because his name could not be obtained from the witnesses. Likewise, the identity and whereabouts of Shaik Chand remained unknown, although Kankiah reported that Shaik Chand had been present at the scene; no other witness recognized Shaik Chand and he was not presented before them because his location could not be established. Finally, while Jamedar Kankiah testified that Abdul Ghaffar, a Police Inspector, was present at the occurrence, the other witnesses did not know him.

In this case the investigating officer, identified as PW 21, could not determine whether Abdul Majid, who held the position of Revenue Inspector, was present at the scene of the occurrence, nor could he ascertain whether Abdul Majid was alive or deceased at the time of his inquiry. Apart from Ghulam Afzal Biabani, the officer did not examine any of the other individuals mentioned, including the Assistant of Force, Nasim Ahmed, the Police Jamedar of Vardbanapeth, Abdul Wahid, the Revenue Inspector, and several others. The officer recalled that after conducting a circumstantial investigation in Gurtur, he travelled to Hyderabad and orally questioned Ghulam Afzal Biabani, but he did not obtain a formal statement from him; nonetheless, whatever information he obtained was entered in the case diary. The officer admitted that he was unaware of what Ghulam Afzal Biabani subsequently reported to the higher authority, and he could not confirm whether Biabani had made any report at all, as he never questioned him on that matter. He further stated that he could not recall the name of the police patel of Gurtur village, that he did not take any statement from that patel, and that the patel gave no report concerning the occurrence. The officer also noted that no firearms were recovered because the incident had taken place a year earlier and the persons involved had not been identified. From these admissions, the Court observed that the investigation conducted by PW 21 was markedly perfunctory. Except for PW 10 Kankiah, none of the police officers, other officials, or village panchayat members who were present at the scene were examined, and the whereabouts of those individuals were not pursued. The Court further pointed out that although village depositions were recorded in November 1948 and the first information report against the appellant was lodged in January 1949, for reasons not satisfactorily explained, the investigation was not pursued and relevant evidence—whether favorable or adverse to the appellant—was not gathered for a period exceeding six months. It was reasonable to presume that during this seven- or eight-month interval material evidence either became unavailable or the villagers, delayed in being questioned, were no longer able to identify reliably any of the persons present at the time of the incident. Consequently, the Court found merit in the contention that a substantial amount of material evidence was lost, and that evidence which might have assisted the defence or fully established the accused’s role was consequently missing. In this circumstance, counsel for both the trial court and the present Court emphasized that the case diaries were not produced in court until after the trial had concluded, and that this withholding was intended to avoid controversy, thereby rendering the trial perfunctory and prejudicial to the accused. During the examination of the investigating officer, the counsel asked whether the officer possessed the case diaries; the cross-examining counsel sought to draw out from him any material concerning the conduct of the investigation that might be found in those diaries, but PW 21 declared that he did not have the diaries with him, and the matter was closed at that stage.

After being asked about certain materials concerning the conduct of the investigation, the witness identified as P.W. 21 explained that he had refreshed his memory by consulting the diaries, but he then testified that he did not have the diaries in his possession and the matter was therefore concluded at that stage. On the twelfth day of April, 1950, an application was filed before the court seeking copies of the statements of the police-recorded witnesses. The application was clearly made out of time because the accused no longer possessed a right to obtain such copies after the Judge had recorded the statements of those witnesses. The case diaries were finally produced in court on the eighteenth day of April, 1950. In addressing this point, the learned Special Judge remarked in his judgment: “I have sent for the case diary relating to Superintendent of C.I.D. in confidential on the prayer of the accused. I have seen it intently. Statements therein are almost the same as are deposed in the court. The statements of witnesses would not become unreliable even in view of the entries made in the case diary.” Section 162 of the Criminal Procedure Code, which governs police diaries and their permissible use, reads as follows: “No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that, when any witness is called for the prosecution in such inquiry or trial ‘Whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.’” Section 172 further provides that any criminal court may call for the police diaries of a case that is under inquiry or trial and may use those diaries, not as evidence, but only to assist the court in the inquiry or trial. The present Court considered that the learned Special Judge erred by employing the police diaries as a basis for forming his opinion on the appreciation of evidence contained in the diary entries. In the view of this Court, the only proper purpose for which the Judge could have used the diaries was the limited purpose authorized by Section 172 of the Criminal Procedure Code.

During the trial the judge was permitted to obtain assistance from the police diaries only by asking the diary to suggest ways of clarifying points that required further explanation and that might be material to achieving justice between the State and the accused. The judge did not make such a request because the diaries were not placed before him. A full court, in the case of Rex v. Mannu, observed that a special diary may be used by a court to aid an inquiry or trial by indicating how certain matters might be further elucidated, but that the entries themselves could not be treated as evidence of any date, fact, or statement contained therein. The court may furnish the police officer who prepared the diary with a copy of it, but no other witness may be given access. The learned judge, however, improperly referred to the diary in his judgment, claiming that he had carefully examined it and that the statements of witnesses given in court were not inconsistent with the statements those witnesses had made to the police officer. It is difficult to determine the precise effect of the judge’s perusal of the diaries at that stage, but such perusal may have reinforced the judge’s view of the evidence against the appellant and could have acted to his prejudice. If any situation required assistance from the case diary during the trial, it was this one, where the investigating officer appeared as a witness. Rather than giving unsatisfactory answers, the officer could have refreshed his memory from the diary, thereby providing accurate answers and filling the gaps that appeared in the prosecution’s case.

The appellant also contended that several documents he required for his defence were either not produced by the prosecution or were deliberately withheld. An application filed by the appellant on 20 April 1950 is relevant. In that application the appellant wrote that when he asked for documents to aid his defence, the police or the Home Department responded that the documents had either been destroyed during the police operation or were confidential and could not be forwarded. He asserted that no firing or burning of offices occurred in Warangal and that he and Taluqdar Sahib had remained in the headquarters for many months after the police action—Taluqdar Sahib for four months and the appellant for nearly one month. He maintained that all documents from his office and Taluqdar’s office were safe and that their safety could be verified by the Civil Administrator of Warangal. The appellant further prayed that the court order the immediate production of the weekly intelligence summaries for the second, third, and fourth weeks of the month of Bahman 1357 F., prepared by the District Superintendent of Police, Warangal, and originally compiled by the C.I.D. branch of the Inspector-General of Police. He noted that these confidential reviews, which mentioned the Gurtur incident, were normally sent by district superintendents to deputy commissioners, subedars, and taluqdars, and that if they were unavailable at the district office they could be obtained from the Inspector-General’s C.I.D. office and placed in the record. On the application the court recorded an order criticizing the appellant’s remarks that documents were either not received or destroyed, stating that such comments were improper and that investigation against officers could not proceed on that basis.

In the application filed by the accused, he pleaded that the court should cause the immediate transmission of the intelligence summaries for the second, third and fourth weeks of the month of Bahman, 1357 F., which were kept in the office of the Peshi of Mr Obal Reddy, the District Superintendent of Police of Warangal. He explained that these weekly reviews were confidential documents prepared at the Crime Investigation Department branch of the office of the Inspector-General of Police and were then dispatched to the various districts. Historically, the District Superintendents of Police had sent these reviews to the Deputy Commissioner of Police, to Subedars and to Taluqdars. The Gurtur incident was recorded in these reviews. The applicant further stated that, if the required reviews were not available in the Warangal District Superintendent’s office, they could be obtained from the Inspector-General’s Crime Investigation Department office and could be retained on the court’s record.

The court recorded an order on the application, stating that the manner in which the accused, Habeeb Mohamed, had complained that higher authorities either failed to forward the documents or had destroyed them was not an appropriate way to make a remark. The court noted that an investigation against officers could not be undertaken on that basis, that the matters in the file had already been decided, that the accused had been given ample time, and that filing an application at every hearing would not be tolerated. Afterward, the counsel for the appellant produced before the court a list of the documents that had been requested. Some of those documents were produced in court, while for others the report indicated that they had either been destroyed or were not available. The court declined to accept the counsel’s argument that it was required to investigate whether the various officers’ statements about the destruction or unavailability of the documents were correct. The court observed that it was within the accused’s right, whenever a report was received, to challenge the statement; at that point the court could have asked the prosecution to substantiate its replies by affidavits or other evidence. The court found it curious that important documents essential for the defence to establish the appellant’s version of the incident were said to be destroyed or unavailable. Such definitive assertions did not inspire confidence in the court, and the court saw no occasion during the police action for the officer in charge to destroy records that had been prepared by police officers and submitted to the Inspector-General of Police or to the Home Secretary. Consequently, the court recognized that, in these circumstances, the appellant was reasonably justified in urging the court to draw the inference that, had the documents been produced, they would not have supported the prosecution’s case. The Advocate-General for the State then contended that, assuming the prosecution’s failure to examine Biabani had caused serious prejudice to the accused, or that the denial of an opportunity to examine certain defence witnesses had also caused serious prejudice, the court might direct the High Court to summon those witnesses and transmit their statements for consideration.

The Court observed that directing the High Court to summon the witnesses, record their statements and forward them for consideration, and then deciding the appeal after that evidence had been taken would not be appropriate in the special circumstances of this case. It noted that reopening the case and permitting the prosecution to examine a material witness or witnesses that should have been presented, while also allowing the defence to lead its own evidence, could not be done without overturning the appellant’s conviction. The Court held that a conviction reached without giving the defence an opportunity to present any relevant evidence could not be sustained. Consequently, the only proper remedy was to set aside the conviction. The Court then considered whether it should order a new trial. After careful reflection, it concluded that ordering a retrial would not serve the ends of justice. The appellant had been in some form of detention even before his arrest; since January 1949 he had either been detained or serving a rigorous imprisonment, and for the last three years he had been a condemned prisoner. The facts requiring fresh evidence pertained to an incident that occurred on 9 December 1947, and after a lapse of six years it would be unfair and contrary to established practice to command a fresh trial. In view of the absence of a fair and proper trial in substance, the Court felt compelled to allow the appeal, set aside the conviction under the various sections of the Hyderabad Penal Code, and order that the appellant be released immediately. The Court further explained that if the errors of the lower court had been merely technical and had not caused a failure of justice, or if the matter involved only a different assessment of evidence, it would not have interfered under article 136 of the Constitution, as such questions are generally left to the final decision of the lower courts. Therefore, it was unnecessary to examine the merits of the case, which both learned counsels had addressed at length.

Before concluding, the Court mentioned that the counsel for the State, apart from the points already discussed, had raised a few additional technical issues, but the Court did not call upon the Advocate-General to respond to those matters. One of the points raised was that the trial court had not examined the accused under section 256 of the Criminal Procedure Code after further cross-examination of the witnesses. The Court held that this omission was not material because no further information emerged from the cross-examination that required the accused to explain anything. The accused had already given a full statement on all matters that needed explanation in the case. Consequently, the Court found no prejudice arising from the failure to invoke section 256, and this issue did not affect the overall decision.

The Court noted that the accused had provided a complete statement on every point that required explanation in the proceedings. It then considered the contention that under Hyderabad law at least two witnesses were necessary to secure a conviction in a murder trial. The Court observed that, in the present case, more than two witnesses had been produced, each of whom either directly or indirectly implicated the appellant in the commission of the murder. The provision of the Code that was cited by the appellant did not stipulate that two eyewitnesses of the incident were required before a conviction could be entered for the offence. The Court further examined the argument that the Special Judge lacked jurisdiction because His Excellency the Nizam had not given his assent to the law contained in Ordinance X of 1359-F. In the Court’s view this submission had no substance, since the Nizam, by a firemen order, had delegated all his administrative powers, including legislative authority, to the Military Governor; consequently no further approval by the Nizam was required and the Military Governor was empowered to issue the Ordinance in question. Finally, the appellant contended that the sanction for prosecution under section 207 of the Hyderabad Code of Criminal Procedure (equivalent to section 197 of the Criminal Procedure Code) had been obtained after the Judge had taken cognizance of the case. The Court found no merit in this argument, noting that the court was fully seized of the matter before the trial commenced and that the necessary sanction had already been granted. Accordingly, the appeal was allowed, the conviction was set aside, and the agents for the parties were recorded as Rajinder Narain for the appellant and G. H. Rajadhyaksha for the respondent.