# HabMb Mohamed v. The State of Hyderabad. 66'2 SUPREME COCR'l' REPOR'l'S

- **Citation:** [1953] 1 S.C.R. 661
- **Court:** Supreme Court of India
- **Decided:** 1950-01-26
- **Case number:** Criminal Appeal No. 43 of 1952
- **Bench:** PATAl\JALI SAS1'RI C.J, Mukherjea, S.R. Das, Gm;LAM HASAN, Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/habmb-mohamed-v-the-state-of-hyderabad-66-2-supreme-cocr-l-repor-l-s-183
- **Pages:** 17

## Headnote

Constitution of India, 1950, Arts. 13, 14-Hyderabad Regula·
tion X of 1359 F.-Trial by special jwlqe under Reg•tlation X after
26th January, 1950-Provisions of Regulation different from Criminal Procedure Code-Equal protection of the· law - Validity of
trial-Tests of validity-Effect of cu.rtailment of committal proceed·
ings and of right to transfer, revision, confinnation of death sentence.
In determining the validity or otherwise of a pre.Constitution
statute on the ground of any of its provisions being repugnant to
the equal protection clause of the Constitution, two principles
86
1953
March 30.
1953
HabMb
Mohamed
v.
The State of
Hyderabad.
66'2
SUPREME COCR'l' REPOR'l'S
[1953]
have to be borne in mind. Firstly, the clause bas no retrospective
effect and even if the law is in any sense discriminatory, it must
be held to be valid for all past transactions and for enforcement
of rights and liabilities accrued before the coming into force of tho
Constitution. Secondly, Art. 13 (l) of the Constitution doeg not
necessarily make the whole statut~ innlid even after the advent
of the Constitution. It invalidates ·only those provisions which
are inconsistent with the fundamental rights guaranteed under
Part III of the Constitution .
•
Further, the fact that trial was continued even after 26th
January, 1950, under the earlier Regulation which is in some res.
pacts discriminatory would not necessarily render the subsequent
proceedings invalid. All that the accused could claim is that what
remains of the trial must not duviate from the normal standard
in material respects, so as to amount to a denial of the equal pro·
tection of laws within the meaning of Art. 14 of the Constitution.
For the purpose of determining whether the accused was deprived
of such protection, the Court has to see first of all whether after
eliminating the discriminatory provisions in the Regulation, it
was still possible to secure to the accused substantially the benefits of a trial under the ordinary law.; and if so, whether that was
actually done in the particular case.
On the 5th January, 1950, ~he case of the accused who was
·charge.cl with murder, arson, ricting and other offences which was
pending before a Special Tribunal was made over to a Special
.Tudge in pursuance of the provieions of the Hyderabad Regulation
X of 1359 F., which abolished t.1e Special Tribunal Regulation o_f
1949. The trial commenced on the 11th February, 1950, after the
ne\V Constitution came into force and the ·accused was convicted
and sentenced to death. His appeal was dismissed and the sentence
of death was ultimately atmfirmed by the High Court. It was
contended that the entire trial was il)Jlgal inasmuch as the Regulation under which the accused, was tried contained several
provisions which were in coafiict with the equal -protection clause
(Art. 14) of the Constitution and became void after the 26th
January, 1950.
Held, (1) The provisions in the Regulation eliminating committal proceedings and substituting the warrant procedure for sessions
procedure in the trial of offences did not render the trial illegal as
the committal proceeding was r:ot an indispensable preliminary to
a sessions trial under the Hyderabad Criminal Procedure Code.
(2) On a proper interpretation of s. 8 of the Regulation the
right of an accused to apply fer transfer of his case was not
taken away and the right of revision was taken away only in
respect of non-appealable sentences.
(3) Section 8 of the Regulation was void in so far as it took
away the provisions relating to confirmation of sentences but as
this part of the Regulation · was sevora\>le from the remainin~
s.c.:R. , ur . ~ME COURT REPORTS
663
portion of the section tbe provisions of the Hyderabad Criminal
Procedure Code relating to confirmation of sentences could be
followed, and those provisions did not in any way affect the procedure for trial laid down in the Regulation.
(4) The fact that the Nizam's consent had not been obtained
could not

## Text

S.C.R.
SUPREME COURT REPORTS
661
any such limitations Government is, subject to the
1958
qualification mentioned above, as free to make special 8 . h-C d
.
.
atis
han ra
contracts of service with temporary employees, engagAnand
ed in works of a temporary nature, as any other
v.
employer.
The Union of
Various matters .relating to the merits·of the case
India.
were referred to but we express no opinion about
Bo" J.
whether the petitioner has other rights which he can
enforce in other ways.
We are dealing here with a
writ under article 32 to enforce a fundamental right
and the only point we decide is that no fundamental
right bas been infringed.
When the matter was first argued we had decided
not to make any order about costs but now that the
petitioner has persisted in reopening the case and
calling the learned Attorney-General here for a
second time, we have no alternative but to dismiss
the petition with costs.
Petition dismissed.
Agent for the petitioner: Rajinder Narain.
Agent for the respondent: G. H. Rajadhyaksha .
•
HABF,.EB MOHAMED
·v. •
·rHE STA'rE OF HYDERABAD.
[PATAl\JALI SAS1'RI C.J., MUKHERJEA, S.R. DAS,
Gm;LAM HASAN and BHAGWATI JJ.]
Constitution of India, 1950, Arts. 13, 14-Hyderabad Regula·
tion X of 1359 F.-Trial by special jwlqe under Reg•tlation X after
26th January, 1950-Provisions of Regulation different from Criminal Procedure Code-Equal protection of the· law - Validity of
trial-Tests of validity-Effect of cu.rtailment of committal proceed·
ings and of right to transfer, revision, confinnation of death sentence.
In determining the validity or otherwise of a pre.Constitution
statute on the ground of any of its provisions being repugnant to
the equal protection clause of the Constitution, two principles
86
1953
March 30.
1953
HabMb
Mohamed
v.
The State of
Hyderabad.
66'2
SUPREME COCR'l' REPOR'l'S
[1953]
have to be borne in mind. Firstly, the clause bas no retrospective
effect and even if the law is in any sense discriminatory, it must
be held to be valid for all past transactions and for enforcement
of rights and liabilities accrued before the coming into force of tho
Constitution. Secondly, Art. 13 (l) of the Constitution doeg not
necessarily make the whole statut~ innlid even after the advent
of the Constitution. It invalidates ·only those provisions which
are inconsistent with the fundamental rights guaranteed under
Part III of the Constitution .
•
Further, the fact that trial was continued even after 26th
January, 1950, under the earlier Regulation which is in some res.
pacts discriminatory would not necessarily render the subsequent
proceedings invalid. All that the accused could claim is that what
remains of the trial must not duviate from the normal standard
in material respects, so as to amount to a denial of the equal pro·
tection of laws within the meaning of Art. 14 of the Constitution.
For the purpose of determining whether the accused was deprived
of such protection, the Court has to see first of all whether after
eliminating the discriminatory provisions in the Regulation, it
was still possible to secure to the accused substantially the benefits of a trial under the ordinary law.; and if so, whether that was
actually done in the particular case.
On the 5th January, 1950, ~he case of the accused who was
·charge.cl with murder, arson, ricting and other offences which was
pending before a Special Tribunal was made over to a Special
.Tudge in pursuance of the provieions of the Hyderabad Regulation
X of 1359 F., which abolished t.1e Special Tribunal Regulation o_f
1949. The trial commenced on the 11th February, 1950, after the
ne\V Constitution came into force and the ·accused was convicted
and sentenced to death. His appeal was dismissed and the sentence
of death was ultimately atmfirmed by the High Court. It was
contended that the entire trial was il)Jlgal inasmuch as the Regulation under which the accused, was tried contained several
provisions which were in coafiict with the equal -protection clause
(Art. 14) of the Constitution and became void after the 26th
January, 1950.
Held, (1) The provisions in the Regulation eliminating committal proceedings and substituting the warrant procedure for sessions
procedure in the trial of offences did not render the trial illegal as
the committal proceeding was r:ot an indispensable preliminary to
a sessions trial under the Hyderabad Criminal Procedure Code.
(2) On a proper interpretation of s. 8 of the Regulation the
right of an accused to apply fer transfer of his case was not
taken away and the right of revision was taken away only in
respect of non-appealable sentences.
(3) Section 8 of the Regulation was void in so far as it took
away the provisions relating to confirmation of sentences but as
this part of the Regulation · was sevora\>le from the remainin~
s.c.:R. , ur . ~ME COURT REPORTS
663
portion of the section tbe provisions of the Hyderabad Criminal
Procedure Code relating to confirmation of sentences could be
followed, and those provisions did not in any way affect the procedure for trial laid down in the Regulation.
(4) The fact that the Nizam's consent had not been obtained
could not vitiate the trial as such consent is necessary only before
execution of the sentence.
Held also, that the delegation of the authority of the Chief
Minister to make over cases for trial to the Special .Tudge, by a
general notifipation authorising all civil administrators of tbe
districts to exerci•e within their respective jurisdictions the
powers of the Chief Minister under s. 5 (b) was not invalid.
Section 5 (b) does not require that the delegatee must be mentioned by name.
Qasini Razvi' s case ([1953] S.C.R. 589) applied.
CRIMINAL APPELLATE
JURISDICTION:
Criminal
Appeal No. 43 of 1952 and Petition No. 178 of 1952.
Appeal by Special Leave granted by the Supreme
Court on the 11th May, 1951, from the Judgment and
Order dated the l lth December, 1950, of the High
Court of Judicature at Hyderabad (Manohar Prasad J.) In Criminal Appeal No. 598 of 1950, and
Petition nnder Article 02 of the Constitution.
A. A. Peerbhoy (J. B. Dadachanji, with him) for the
appellant.
V. Rajaram Iyer, Advocate-General of Hyderabad
(R. Ganapathy Iyer;, with him) for the respondent.
1953.
March 30. The Judgment of PATANJALI
8ASTRI C.J., MuKHERJEA, S. R. DAs, and BHAGWATI
,JJ. was delivered by MuKHERJEA J. Gm::LAM HASAN J.
delivered a separate but concurring judgment.
MuKHEHJEA J.-'rhe appellant before us, who in
the year 1947 was a Revenue Officer in the District
of vVarangal within the State of Hyderabad, was
brought to trial before the Special Judge of Warangal appointed under Regulation X of
1359F. on
charges of murdar, attempt to murder, arson, rioting
and other offenceb"-punishable under various sections
of the Hyderabad Penal Code.
The offences were
alleged to have been committed on or about the 9th
of December, 1947, and the First Information Hepor~
1953
Habeeb
Mohatned
v.
The State of
Hyderabad.
,
B64
SUPREME COURT REPORTS .
[1953]
was lodged, a c.onsiderable time afterwards, on 31st
January, 1949.
0μ 28th August, 1949, the,re was an
Habeeb
Mohamed
order in terms of section 3 of the Special Tribunal
1953
v.
The State of
Hyderabad.
Regulation No. V of 1358 F., which was in force at
that time, directing the appellant to be tried by the
Special Tribunal (A). The accused being a public
officer, the sanction of the Military Goverupr was
M1<kherj•a J. necessary to prosecute him and this sanction was
given on 20th September, 1949. On 13th. December,
1949, a new .Regulation, being Regulation No. X of
1359F., was passed by the Hyderabad Government
which euded the Special Tribunals created under the
previous Regulation on ana. from 16th December,
1949; and consequently upon such termination provided for the appointment, power and procedure of
Special Judges. f:lecticin 4 of the Regulation authorised the Chief Minister to appoint, after consulting
the High Court, as many Special Judges as may from
time to time be required for the purpose of section 5.
Section 5(1) laid down that every Special Judge shall
'
try-
( a) such offences of which the trial was immediately before the 16th December, 1949, pending before a Special Tribunal deemed to have been dissolved
on that date, and are made over to him for trial by
. the Chief Minister or by a person authorised by the
.• Chief Minister in this behalf; and·
(b) such offences a.s are after the commencement of this Regulation made over to him for trial
by the Chief Minister or by a person authorised by
the Chief Minister in this behalf.
On 5th January, 1950, the case against the appellant was made over to Dr. Ijakshman Rao, a Special
Judge of Warangal, who was appointed under the
above Regulation under an order of the Civil Administrator, Warangal, io whom authority under section 5
of the Regulation was delegated by the Chief Minister and on the same date the Special· Judge took
cognizance of the offences. The trial commenced on
and from 11th February, 19501 and altogether 21 witnesses were examined for th~ prosecution and one for
•
S.C.R.
SUPREME COURT REPORTS
665
1953
the defence. 'l'he Special Judge, by his judgment
dated the 8th of May, 1950, convicted the appellant
HabetJb
of all the offences with which he was charged and
Mohamed
sentenced him to death under section 243 of the
v.
Hyderabad Penal Code (corresponding to section -302
The state of
of the Indian Penal Code) 'and to various terms of
Hyderabad.
imprisonment under sections 248, 368, 282 and 124of
the Code of Hyderabad (which correspond respecMukherjea J.
tively to sections 307, 436, 342 and 14§ of the Indian
Code).
Against this judgment the appellant took
an appeal to the High Court of Hyderabad and the appeal was first heard . by a Division Bench consisting
of Shripat Rao and S. Ali Khan JJ. On 29th September, 1950, the learned Judges delivered differing
judgments, Shripat Rao J. taking the view that the
appeal should be dismissed, while the other learned
Judge expressed the opinion that the appeal ought
to be allowed and the accused acquitted. '.l'he case
was then referred to Mr. Justice Manohar Prasad as
a third Judge and by his judgment dated the nth of
December, 1950, the learned Judge agreed with the
opinion of Shripat Rao J. and dismissed the appeal
upholdingtheconviction and sentences passed by the
Special Judge.
The appellant then presented an
application for leave to appeal to this court. That
application was rejected by the High Court of Hyderabad, but special leave to appeal was granted by this ·
court on 11th May, 1951, and it is on the strength of
this special leave that the appeal has come before us.
The present hearing of the appeal is confined to
certain constitutional points which have been raised
by the appellant attacking the .legality of the entire
trial which resulted in his conviction on the ground
that the procedure for trial laid down in Regulation
X of 1359F. became void after the 26th of Janua~,
1950, by reason of its being in conflict with the equal
protection clause embodied in article 14 of the Constitution. 'l'hese grounds have been set forth in a
separate petition filed by tbe appellant under article 32 of the Constitution and following tbe procedure adopted in the case of Qasim Razvi [Case No. 276
'666
SUPREME COURT REPORTS
[1953j
of 1951(1)], we decided to hear arguments on tl;ie constitutional questions as preliminary points in the
Habeeb
Mohamed
appeal itself. Whether the appeal would have to be
1953
heard further or not would depend on the decision
Th• st,te of whh1h we arrive at in the present hearing.
.
.
v.
'Hyderabad.
The substantial contention put forward by .Mr.
Mukherjea J. Peerbhoy, who appeared in support of the appeal, is
that as the procedure for trial prescribed by Regulation X of 1359F. deviated to a considerable extent
from the normal procedure laid down by the general
law and deprived the accused of substantial benefits
to which otherwise he would have been entitled, the
Regulation became void under article 13(1) of the
Constitution on and frnm the 26th of January, 1950.
The conviction and the sentences resulting from the
procedure thus adopted must,
therefore, be held
illegal and inoperative and the judgment of the
Special Judge as well as of the High Court shcrnld be
quashed. 'rhe other point raised by the learned counsel is t'hat the making over of the case of the appellant to the Special Judge was illegal as the authority.
to make over such cases was not properly delegated
by the Chief Minister to the Ci vii Administrator in
the manner contemphted by section 5
of the
Regulation.
As regards the first point, it is to be noted at the out-
. set that the impugned Hegulation was a pre-Constitu'
tion statute. In determimng the validity or otherwise
of such legislation on the ground of any of its provisions being repugnant to the equal protection clause,
two principles would have to be borne in mind, which
were enunciated by the majority of this court in the
case of Qasim Razvi v. The State of Hyderabad('),
decided on tbe 19th of J auuary, 1953, where the earlier
decision in• Lackman Das Kewalram v. The State of
Bombay(") was discussed and explained.
Firstly, the
Constitution has no retrospective effect and even if
the law is in any sense discriminatory, it must be held
to be valid for all past tr:msactions and for enforcement of rights and liabilities accrued before the
(1) [1953] S.C.R. 589.
(2) [1952) S.C.R. 710,
•
•
•
S.C.R.
SUPREME COURT REPORTS
667
coming into force of the Constitution.
Secondly,
article 13(1) of the Constitution does not necessarily
make the whole stat11te inv~lid even after the advent
of the Constitution.
It invalidates only those provisions which are incousi;teut with the fundamental
rig)lts guaranteed under Part III of the Constitution.
The statUte becomes void only· to the extent of such
incousisteμcy but otherwise rem::tius valid and operative.
As was said in Qasiin Razvi's case(') the fact
that "trial was continued even after 26th January,
1950, under the same Regulation would not necessarily render the subsequent proceedings invalid. All
that the accused could claim is that what remained of
the trial must not deviate from the normal standard iu
material respects, so as to amount to a denial of the
equal protection of laws within the meaning of article
14 of the Constitution. For the purpose of determining whether the accused was deprived of such
protection, we have to see first of all whether after
eliminating the discriminatory provisions in the
Regulation, it was still possible to secure to the
accused substantially the benefits of a trial under the
ordinary law; and if so, whether that was actually
• done in the· particular case."
As has been stated already, the Special ~udge took
. , cognizance of this case on the 5th of January, 1.950,
which was prior to the advent of the Constitution. It.
must be held, therefore, that the Special Judge was
lawfully seized of the case, and it is not possible to
say that the appointment of a Special Judge was in
itself au inequality in the eye of the law.
The ti'ial
undoubtedly commenced from the 11th of February,
1950, that is to say, subsequent to the coming iuto
force of the Constitution, and the question that
requires consideration is, whether the procedure that
was actually followed by the Special Judge acting
nuder the impugned Regulation did give the accused
the substance of a normal trifl.l, or, in other words,
whether he had been given a fair measure of equality
in the matter of procedure?
.
(1) [1953] S.C.R. 589,
'
1953
HttbBeb
Mohamed
v.
The State of
Hyddrabad.
Muk1rn1',fea J,
,
1968
Rabeeb
.Afohatned
v.
The State of
Hyderabad.
Mukherjea J,
,
• 668
SUPREME COURT REPORTS
Mr. Peerbhoy lays stress on two sets of provisions
in the impugned Regulation which, according to him,
differentiate the procedure prescribed in it from that
laid down nuder the ordinary law.
The first set
relates to the elimination of the committal proceeding and the substitution of warrant procedure for the
sessions procedure in the trial of offences. The otlier
set of provisions con~ists of those which deny to the
accused the rights of revision and transfer and withdraw from him the safeguards relating to c.onfirmation of sentences. The first branch of the contention,
in our opinion, is unsustainable having regard to our
decision in Qasim Razvi's case('). It was pointed out·
in that case that under the Hyderabad Criminal
Procedme Code the committal proceeding is not au
indispensable preliminary to a sessions trial.
Under
section 267 A of the Hyderabad Criminal Procedure
Code, the Magistrate is quite competent, either without rec-0rding any evidence or after recording only a
portion of the evidence, to commit an accused for
trial by the sessions court if, in his opinion, there are
sufficient grounds · for
such
committal.
If the
committal proceeding is left out of account as not
being compulsory, and.its absence did not; operate to '
take away the jurisdiction of the Special Judge to
take cognizance of the case before the Constitution,
.the difference between a warrant procedure prescribed '
by the impugned Regulation to be followed by the
Special Judge, after such cogni1:ance was taken and
the sessions procedure at that stage applicable under
the\ general law is not at all substantial, and the
minor differences would not bring the case within the
mischief of article 14 of the Constitution. 'rhis question having been already decided in Qasim Razvi's
case(') it is not open for furthe·r arguments in the
present one.
With rega_rd to the other set of provisions, the
contention of Mr. P.eerbhoy is based entirely upon
the language. of section 8 of the Regulation.
In our
opinion, the interpretation which the learned counsel
seeks to put upon the sec;ition is not quite correc1r,
(1) (1953] S.C.R. 589.
•
...
S.C.R.
SUPREME COURT REPORTS
669
and it seems to ns that not only the right of an
accused to apply for transfer of his case 'has not been
taken away by this section, but the right of revision
also has been left unaffected except to a small extent.
Section 8 of the Regulation X of 1359 F. is in
these terms:-
"All the provisions of section 7 of the said Regulation shall havQ effect in relation to sentences p:i,sse'd
by a Special Judge as if every reference in the said
Regulation to a Special Tribunal incluueda reference
to a Special Judge."
The expression "said Regulation" means and refers
to Regulation V of 1358 F. and section 7 of the said
Regulation provides inter alia that "there shall save
as hereinbefore 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 auy kind iu 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." It will be
noticed that what section 8 of the impugned Regulation does, is to incorporate, not the whole of section 7
of the previous Regulation, but only such portion of
it as relates to sentences passed by a Special Judge. By
"sentence" is meant obviously the final or definitive
pronouncement of the criminal court which culminates
or ends in a sentence as opposed to an "order", interlocutory or otherwise, where no question of infliction
of any sentence is involved. The scope of section 7 of
the earlier Regulation is thus much wider than that of
present section 8 and all the limitations of the earlier
statute. have not been repeated in the present
one.
The result, therefore, is that revision against
any order which has not ended in a sentence is not
interdicted by the present Regulation, nor has the
right of applying for transfer, which has no reference
to a sentence, been touched at all.
These rights are
expressly preserved by section 10 of the present
87
1953
Habe~b
Mohamed
v.
Th• Stat• of
Hyderabad.
Mukherjea J.
1968
Habeeb
Mohatned
v.
Tho StatP of
Hydorabad.
Afukhorjoa J.
670
SUPREME COURT REPORTS
[1953]
Regulation, which .makes the Code of Criminal
Procedure applicable iu all matiers except where the
Regulation has provided otherwise. Heading section 8
of the present Regulation with section 7 of the earlier
one, it may be held that what has been taken away
from an accused is, in bhe first place, the right of
revision against nou-appealable sentences, aud in the
sscond place, the provisions relating to confirmation
of.sentences. The first one is immaterial for our present
purpose, as no question of any non-appealable
sentence arises in the case before us.
'1
1he second is
undoubtedly a discriminatory feature and naturally
Mr. Peerbhoy has laid considerable stress upon it.
Section 20 of the Hyderabad Criminal Procedure
Code lays down the rule relating to confirmation of
sentences in the following manner:
Eve1y Sessions J 11dge may pass any sentence
authorised by law, but such sentence shall not be
carried into effect until
·
(1) in the case of a sentence of 10 years' imprioonment or more, the appropriate Bench of the High
Conrt;
.
(2) in the case of life imprisonment, the Government; and
(3) in the case of death sentence, H.E.H. the
Nizam,
shall have assented thereto.
Section 302 provides
that when a sessions court has passed a sentence of
death or of life imprisonment or of imprisonment exceeding 10 years, the file of the case shall be forwarded
to the High Court and the execution of the sentence
stayed until manjuri is given in accordance with section 20.
Section 307 further provides that when tbe
High Court has affirmed a death sentence or sentence
of life imprisonment, then its opinion together with
the file of the case shall he forwarded for ratification
to the Government within one week and the sentence ·
shall not be carried into effect until alter the assent
thereon of H.E.H. the Nizam in the case of death
sentences and of .the Government in the case of
;
8.0.R.
SUPREME COUR'r REPORTS
671
!968
sentences of life .imprisonment. Mr. Peerbhoy's complaint is that the sentence imposed upon his client
h
·
h
Baboeb
as, m t e present case, neither been confirmed by
Manam•d
the High Court, nor by H. E. H. the N izam.
This, he
v.
says, is a discrimination which has vito.lly prejudiced
Th• State of
his client and does afford a ground for setting aside
Hyderabad.
the sentence in its entirety.
Mukhtrjda, J.
It admits of no dispute that section 8 of Regulation X of 1359F. must be held to be invalid under
articles 13(1) and 14 of the Constitution to the
extent that it takes away the provision relating
to confirmation of sentences as is contained in
tbe Hyderabad Criminal Procedure Code.
'l.'hig,
however, is a severable part of the section and
being invalid, the provisions of the Hyderabad Crim;-
nal l:'rocednre Code with reg~rd to the confirmation
of sentences must be followed.
Those provisions,
however, do not affect in any way tbe procedure for
trial laid down in tbe Regulation. All that section 20
of the Hyderabad Criminal Procedure Code lays down
is that sentences of particular description should not
be executed unless :Hscnt of certrtin authorities to tbe
same is obtained. The proper stage, therefore, when
tbis section comes into operation is the stage of the
execution of tbe sentence. Tbe trial or conl'iction of
the accused is not affected in any way by reason of
the withdrawal of the provision relating to confirmation of sentences in the Regulation. The withdrawal
is certainly inoperative and in spite of such withdrawal the accused can insist on the rights provided
fol' under the general law.
In the case before us the records show tbat no
reference was made by tbe Special Judge after be ,
passed the sentence of death upon the appellant in
the manner contemplated by section 307 of the
Hyderabad Code, which corresponds to section 374
of the Indian Criminal Procedure Code.
There was,
however, an appeal preferred by the accused and the
entire file of the case came up before the High Courb
in that connection.
As said already, the Division
Bench, which heard the appeal, >ms divided in its
672
SUPREME COURT REPOR'fS
[1953]
opinion and consequently no question of confirmation
of the death sentence could or did arise before that
Hab .. b
Mohamed
Bench.
The question was,
however, specifically
1968
v.
The Stale of
Hyderabad.
raised towards the conclusion of the arguments before
the third Judge: to whom it was referred; and it is
significant to note that some time before that a Full
Bench of the Hyderabad High Court had decided that
Mukherjea J.
R
1
1
fi
the provision in the
egu ation re ating to con rmation of sentences was void and inoperative and consequently in spite of the said provision the sentences
were required to be confirmed in accordance with the
general law. The question was then raised whether
the confirmation was to be made by the third Judge
alone or it had to be done by the two Judges who
agre@d in dismissing the appeal. Mr. Justice Manohar Prasad decided that as the whole case was referred to him, he alone was competent to make the
order for confirmation of the death sentence and be
did actually confirm it by writing out in his own
hand the order passing the sentence of death according to the provision laid down in the Hyderabad
Code. Mr. Peerbhoy contends that this confirmation
was illegal and altogether invalid as not being made
in conformity with the provisions of the Hyderabad
Code. We do not want to express any opinion on this
point at the present moment.
'l'bere appears on the
face of the record an order for confirmation of the
death sentence made by a Judge of the High Court.
If this order is not in conformity with the provisions
of law, the question may be raised before this court
when the appeal comes up for hearing on its mer}ts.
This is, however, not a matter which affects the con-
. stitutional question with which only we are concerned
at the present stage.
Under section 20 of the Hyderabad Code, as mentioned above, a death sentence could not be executed
unless the assent of H.E.H. the Nizam was obtained.
Mr. Peerbhoy points out that this has not been done
iu the present case. 'l'o that the obvious reply is that
consent of H.E.H. the Nizam is necessary only before
the sentence is executed, and that stage apparently
•
S.d.R. SUPREME COURT HEPORTS
67·3
has not a"rrived as yet.
The final judgment of the
High Court in this case was passed on 11th December, 1950. There was an application for leave to
appeal presented by the accused immediately after
that date aud this application was rejected on 2nd
January, 1951.
On the 5th of February, 1951, an
application for special leave was made to this court
and the execution of the death sentence was stayed
during this period under orders of the High Court
itself. The special leave was granted by this court
on 11th May, 1951, and the carrying out of the death
sentence has been stayed since then under our orders,
pending the disposal of the appeal. The question as
to whether any further confirmation by H.E.H. the
Nizam is necessary could only arise if and when the
death sentence passed by the courts below is upheld
by this court. Mr. Peerbhoy points out that since the
1st April, 1951, the Indian Criminal Procedure Code
has been introduced in the State of Hyderabad and
there is no power in the Nizam now to confirm a sentence of death, although such confirmation was
necessary at the time when the sentence was pronounced both by the Special Judge as well as by the High
Court on appeal. We do not think that. it is at all
necessary for us at the present stage to discuss the
effect bf this change of law. If the assent of the
Nizam to the execution of a death sentence is a
matter of procedure, it may be argued that the procedural law which obtains at the present moment is
the proper law to be applied.
On the other hand, if
it was a question of snbstanCive right, it may be open
to contention that the law which governed the pa.rties at the date when the trial began is still applicable. We arc, however, not called upon to express
any opinion on this point and we deliberately decline
to do so.
vVe also do not express any opinion as to
· whether the rights which conld be exercised by the
Nizam under section 20 of the Hyderabad Criminal
Procedure Code were appurtenant to his prerogative
as a sovereign or were statutory rights exercisable by
the perwn de>ignf>ted in the statute. These matters
1958
Habeeb
Mohamed
v.
The State a/
Hyderabad.
Mukherjea J
Haboob
llfohamuxl
v.
Tho State of
Hyderabad,
Mukherjea J,
&74
SUPREME COURT REPOR1'8
[l953j
may be considered when the appeal comes up for final
hearing on the merits. Our conclusion is that there
has not been any discrimination in matters of procedure in this case which can be said to have affected
the trial prejudicially against the accused and the
accused is not entitled to have hi,; conviction and
sentence set aside on that ground.
The other question raised by the appellant relates
to delegation of the authority by the Chief Minister
to make over cases for trial by the Special Judge.
Mr. Peerbhoy lays stress on section 5 (b) of the
Hegulation which speaks of offences being "made
over to the Special Judge for trial by the Chief
Minister or by a person authorised by the Chief
Minister iu this behalf ", and it is argued that this
section requires that the delegatee is to be mentioned
by name. What the Chief Minister has done is that
he issued a notification authorising all ciYil administrators of the districts to exercise within their respective jurisdictions the powers of tbe Chief Minister
under the said section.
This, it is argued, is not in
compliance with the provisions of tbe section.
v\'e
do not think there is any substance in this contention.
The delegatee can certainly be described by reference
to his official designation and the authority piay be
vested in the holder of a particular office for the
.time being. This,' we think, is quite a proper and
convenient way of delegating the powers which are
exercisable by the Chief Minister. In our opinion,
the constitutional points raised by :\fr. Peerbhoy fail.
The application under article 32 of the Constitution
is thus rejected and the case is directed to be posted
in the usual course for being heard on its merits.
GHULAivI HASAN J. - I concur in the order proposed
by my learned brother Mr. Justice M ukherjea that the
petition under article 32 of the Constitution be dismissed, but I deem it necessary to make a few ob~erv
ations in view of my dissentiug judgment in Qasim
Razvi's case(').
The majority judgment delivered by
Mr. Justice Mukherjea on the 19th January, 195.3, in
(I) [1951] S,C.R. 7ro.
.~
..
S.C.R. SUPREME COURT REPORTS
675
Qasim Razvi's case(') while interpreting the decision
in Lachmandas Kewalram Ahiija v. The State of Bombay(') laid down the principle that the mere fact
that son:l.e of the provisions of the impugned Regulation are discriminatory on the face of it, is not
sufficient to render the trial and the conviction void
under article 14, read with article 13 ( l) of the Constitution and that in such ca,es where the trial is
continued after the 26th January, 1950, under the
impugned Regulation, it ib nece~sary to see whether
the procedure followed after the material date wa.s ·
such as deprived the accused of the equal protection
of laws within the meaning of article 14 of the Constitution and that if the accused under such procedure
received substantially the benefits of the trial nuder
the ordinary law, the trial and conviction cannot be
held as void and illegal.
I take it that the majority
decision is binding and that the principle enunciated
by the majority is no longer open to question.
With
this preliminary observation I must proceed to express
my concurrence generally with the view taken by my
learned brother Mr. Justice Mukherjea in the present
case.
It is to be borne in mind that Regulation V of
1358 F. under which the 1
1ribunal was constituted to try
Qasim Razvi's case was iu material respects different
from Hegulation X of 1359 F. under which the Special ·
Judge tried the petitioner Habeeb Mohammad. r
agree with my learned brother in holding that there
was no flaw in making over the case of the petitioner
for trial to the 8pecial Judge under section 5 (h) of
the Hegulation. The Special Judge took cognizance
of the case before the ConstitLition came into force,
but the entire evidence of the prosecution, unlike
Qasim Ra%vi's case, was recorded after the 26th of
January, 1950.
The Regulation in lJUestion was
challenged before us as being void under article 14
read with article 13(1) of the Constitution on the
following grounds:-
(Ii [1953] S.C.R. 58,_
(2) [1953] S,C,R, 589,
19ft8
Habe~b
Mohamed
v.
The State of
Hyd.,abad.
Ghulam
Hasan J.
1953
Habeeb
}rfoha1ned
v.
The Stats of
Hyderabad.
Ghulani
Hasan J.
C76
SUPREME COUR1' REPORTS
[1953]
(1) that the Regulation excludes the committal
proceedings,
('J) that the procedure of the sessions trial is
replaced by the warrant procedure,
·
(3) that there is no right of transfer,
( 4) that there is no revision,
(5) that the right of confirmation by the Nizam
in case of sentences of death has been negatived.
As regards the first two grounds, Mr. Justice
· Mukherjea, following the view taken in Qasim Razvi's
case(') has held that under section '267 A of the
Hydernbad Criminal Procedure Code committal proceedings are not compulsory and that there is no
substantial difference
between
the sessions trial
and the warrant procedure which was followed in the
petitioner's case. These two grounds of attack therefore disappear. So far a~grounds Nos. (3) and (4) are
concerned, I agree with Mr. Justice M ukherjea in his
interpretation of section 8 of the Regulation and hold
in concurrence with the view taken by him that the
right to apply for transfer has not been taken away
and that the right of revision has been denied only
in so far as non-appealable sentences are concerned.
'rhe present is a case of murder and other serious
offences which are undoubtedly all appealable.
'!'he only discriminatory feature of the Regulation
left therefore is that no sentence of a Special Tribunal shall be subject to or submitted for confirmation
by any authority whatsoever contained in section 7
(2) of Regulation V of 1358F. which is made applicable under section 8 of Regulation X of 1359 F., in
other words, that the right of the Nizam to confirm
the death sentence h:.s been taken away.
This is unquestionably a Yaluable right available to the accused
who is sentenced to death by the Sessions Judge or
the High Court as the case may be. vVe were told by
Mr. Peerbhoy, counsel for the petitioner, that no
death sentence passed by the courts in Hyderabad
during the last 50 years or sd has ever been carried
into effect and that the Kizam has s,lways exercised
(I) [1953] S.C.R, 589.
S.C.R.
SUPREME COURT REPOR'I'S
677
this right iu favour of commuting the death sentence
to a sentence for life. The denial of this right in the
Hegulatiou is discriminatory ou the face of it aud
deprives the petitioner of a valuable right. I concede,
however, that this objectionable feature of the Regulation is severable from the other parts. I further
agree that the stage for the exercise of that right has
uot yet arisen, for the appeal of the petitioner is still
pending iu this court. If the appea,J is allowed, or
the sentence is reduced, uo question of the confirmation of the death sentence by the Nizam will arise.
If, however, the appeal is dismissed, it will be open
to the petitioner to claim this right. It would not be
desirable at this stage to express au opinion whether
this right is a substantive right which vests iu the
petitioner or oue relating to a mere matter of procedure, as that question will have to be considered aud
decided when the appropriate stage arrives.
I wou Id, therefore, agree iu dismissing the petition.
Petition dismissed.
Ageut for the petitioner: Rajinder Narain.
Agent for the respondent: G. H. Rajadhyaksha.
POPPATLAL SHAH
v.
1'HE scrATE OF MADRAS.
UNIO~ OF INDIA AND OTHERS-Iuterveuers.
[PATANJALT SAsrnr O.J., MuKHERJEA, VrvrAN BosE,
GHULAM HASAN aud BHAGWATI JJ.J
Maclras Sales Tax Act (IX of 1939), ss. 2, 3 (before amendment
of 1947)-" Sale within the vrovince", meaning of-Levy of tax on
sales where vroverty in the goods vassed outside the vrovince -Legal·
ity-Provincial Legislature-Territorial jurisdiction.
Under the Madras Sales Tax Act, 1939, as it stood before it
was amended by the '.\fadras Act XXV of 1947, the mere fact that
the contrnct of sale was entered into within \he frovjnce of
§§
1958
Habe6b
Mohamed
v,
Th• Stats of
Hyderabad.
Ghulam
Ha1an J.
1953
March 80.