# OhiranjitzaZ Ohowdhuri v. The Union of India and OthtJTS. DasJ

- **Citation:** [1950] 1 S.C.R. 940
- **Court:** Supreme Court of India
- **Decided:** 1949-12-14
- **Case number:** Criminal Mis. cellaneous Petitions Nos. 71 to 73 of 1950
- **Bench:** Shri Harilal Kania C.J, Sa!Yid Fazl Ali, Patanjali Sastri, Mukherjea, Das, Chandrasekhara Aiyar Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ohiranjitzaz-ohowdhuri-v-the-union-of-india-and-othtjts-dasj-162
- **Pages:** 10

## Headnote

Constitution of India, Arts. 134, 136, 374(4)-Special leave to
appeal-Judgment of Hyderabad High Court passed before !16th Jan.
1950-Application for special leave-1'.faintainability-Pendency of
application for leave to appeal to Judicial Committee of Hyikrabad
when new constitution came into force, effect of-Scope of Art. 136-
" Any court or tribunal in the territory of India "-Interpretation of
•tatute.-Presumption of prospective operation--Right to appeal.
The petitioners, who v.·ere convicted and sentenced to death
by a special tribunal in the Hyderabad State, preferred appeals
to the High Court of Hyderabad which were dismissed, and they
applied to the.High Court on the 21st Jan., 1950, for leave to appeal
to the Judicial Committee of Hyderabad against the judgments of
the High Court. On the 26th Jan., 1950, the Constitution of
India came into force and under the Constitution, Hyderabad became a part of India, the Judicial Committee of Hyderabad ceased
to exist, and all appeals and other proceedings pending before that
S.C.R.
SUPREME COURT REPORTS
941
Committee stood transferred to the Supreme Court of India.
The
1950
applL~ntions of the petitioners were amended so as to 1nake them
-
applications under Art. 134 of the Constitution, but they wereJana?"dan Reddy
dismissed on the ground that no such petitions lay under Art.
and Others
134 and also on the merits.
The p!3titioners thereupon made
v.
an application to the Supreme Court of India under Art. 136 of
The State.
the Constitution for special leave to appeal:
Held that, inasmuch as Art. 136 confers power on the Supreme
Court to grant special leave to appeal only from any judgment,
decree, sentence or order passed or made by " any court or tribunal in the territory of India," and the Hyderabad High Comt
was not a Court in the territory of India when the judgments in
question were pronounced the Supreme Court bad no jurisdiction
to grant special leave.
·
Art. 136 cannot be so construed as to apply to judgments or
orders pronounced before Hyderabad became part of India and tc
confer a right of appeal inferentially, merely because the petitioners bad a right to appeal to the Judicial Committee of Hyderabad
when the Constitution came into force and they had been deprived
of this right by the abolition of that Committee without making a
provision enabling them to appeal to the Supreme Court.

## Text

•
1950
OhiranjitzaZ
Ohowdhuri
v.
The Union of
India and
OthtJTS.
DasJ.
1950
Dec. 14,
940
SUPREME COURT REPORTS
[1950]
and their shareholders and has penalised this particular
company and its shareholders, leaving out other companies and their shareholders who may be equally
guilty of the alleged vice of mismanagement and
neglect of the type referred to in the preambles. In
my opinion the legislation in question infringes the
fundamental rights of the petitioner and offends against
article 14 of our Constitution.
The result, therefore, is that this petition ought to
succeed and the petitioner should have an order m
terms of prayer (3) of the petition with costs.
Petition dismissed .
Agent for the.petitioner: M. S. K. Aiyengar .
Agent for opposite party Nos. 1 & 2: P.A. Mehta.
Agent for opposite party Nos. 3 to 5 and 7 to 10:
Rajinder Narain.
J ANARDAN REDDY AND OTHERS
v.
THE STATE.
[SHRI HARILAL KANIA C.J., SA!YID FAZL ALI,
PATANJALI SASTRI, MUKHERJEA, DAS and
CHANDRASEKHARA AIYAR JJ.J
Constitution of India, Arts. 134, 136, 374(4)-Special leave to
appeal-Judgment of Hyderabad High Court passed before !16th Jan.
1950-Application for special leave-1'.faintainability-Pendency of
application for leave to appeal to Judicial Committee of Hyikrabad
when new constitution came into force, effect of-Scope of Art. 136-
" Any court or tribunal in the territory of India "-Interpretation of
•tatute.-Presumption of prospective operation--Right to appeal.
The petitioners, who v.·ere convicted and sentenced to death
by a special tribunal in the Hyderabad State, preferred appeals
to the High Court of Hyderabad which were dismissed, and they
applied to the.High Court on the 21st Jan., 1950, for leave to appeal
to the Judicial Committee of Hyderabad against the judgments of
the High Court. On the 26th Jan., 1950, the Constitution of
India came into force and under the Constitution, Hyderabad became a part of India, the Judicial Committee of Hyderabad ceased
to exist, and all appeals and other proceedings pending before that
S.C.R.
SUPREME COURT REPORTS
941
Committee stood transferred to the Supreme Court of India.
The
1950
applL~ntions of the petitioners were amended so as to 1nake them
-
applications under Art. 134 of the Constitution, but they wereJana?"dan Reddy
dismissed on the ground that no such petitions lay under Art.
and Others
134 and also on the merits.
The p!3titioners thereupon made
v.
an application to the Supreme Court of India under Art. 136 of
The State.
the Constitution for special leave to appeal:
Held that, inasmuch as Art. 136 confers power on the Supreme
Court to grant special leave to appeal only from any judgment,
decree, sentence or order passed or made by " any court or tribunal in the territory of India," and the Hyderabad High Comt
was not a Court in the territory of India when the judgments in
question were pronounced the Supreme Court bad no jurisdiction
to grant special leave.
·
Art. 136 cannot be so construed as to apply to judgments or
orders pronounced before Hyderabad became part of India and tc
confer a right of appeal inferentially, merely because the petitioners bad a right to appeal to the Judicial Committee of Hyderabad
when the Constitution came into force and they had been deprived
of this right by the abolition of that Committee without making a
provision enabling them to appeal to the Supreme Court.
APPELLATE JURISDICTION (Criminal) : Criminal Mis.
cellaneous Petitions Nos. 71 to 73 of 1950.
Petitions under Art. 136 of the Constitution praying
for special leave to appeal to the Supreme Court from
the orders of the High Court of Judicature at Hyderabad dated 12th, 13th and 14th December, 1949, dismissing the appeals preferred by the petitioners against
orders of the Special Tribunal of Hyderabad con\'icting
them of murder and sentencing them to death.
The
material facts and arguments of the counsel appear
from the judgment.
D. N. Pritt (K. B. Asthana, Daniel Latifi, Bhawa
Shiv Charan Singh and A. S. R. Chari, with him) for
tbe petitioners.
M. C. Setalvad, .Attorney-General for India, and
Raja Ram Iyer (G. N. Joshi, with them) for the respondent.
1950. December 14.
The Judgment of the Court
was delivered by
KANIA C.J.-These are three criminal miscellaneous
Kania c. J.
petitions asking for special leave to appeal to the
-
- ·-------------------------
942
,
'
SUPREME .COURT REPORTS
\
[1950]
1950
•
Supreme Court under articie 136 of the Constitution of
- -· · _India.
·
·--
·
Janard'an Reddy
·-
.
.
·
a•a Others .
All the accused were charged WI th berng members of
- •. ,__
.the Communist Party wedded to the policy of overTh• Stat•.
throwing the existing Government at Hyderabad by
violence and establishing in its place a communist
Ka•i~C. J. regime:-- It is alleged that they demanded subscriptions towards their communist organization and some
of the villagers who did not meet their demands· were
abducted on the 21st of September, 1948, and
murdered. They were charged· with various offences
including murder before a special tribunil established
under the regulations promulgated by tlie Military
Governor under the -authority of H. E. ·H. the Nizam
and convicted and sentenced to death- on the 9th, 13th
and 14th of August, 1949, by separate judgments. The
petitioners appealed from those judgments to the
Hyderabad High Court and the High Court,by its judgments dated the 12th, 13th and 14th December, 1949,
respectively, dismissed the appeals. The petitioners
applied to the High Court for a certificate to appeal to
the Judicial Committee of the Hyderabad State on the
21st of January, 1950. It appears that H.E. H. the '
Nizam issued a jirman.on the 23rd of November, 1949,
stating that the proposed Constitution of India was
suitable for the government of Hyderabad and he
accepted,it as the Constitution of, the Hyderabad State
as one of the States of PartB in the First Schedule. On
the 26th of January, 1950, the Constitution of India
became applicable to the Union of India and the Part
B States. The petitions originally filed for a certificate
for leave to appeal to the Judicial Committee of the
Privy Council of the Hyderabad State were, by leave
of the Court, amended, and made into petitions under
·article 134 of the Constitution of India. A Division
Bench of the High Court at Hyderabad considered the
petitions and dismissed therri on the ground that no
such petitiim-s- lay under article 134 and· they also
declared that on the merits no case was made out for
a certificate as asked by the petitioners. Tlie petitioners have now filed their petitions to this Court under
<
S.C:R.
SUPREME COURT REPORTS
943
article 136 of the Constitution of India, for special
19zo
leave to appeal from the judgments of the High . Court ;r
-d -R aa .·
dated the 12th, 13th and 14th of December, 1949.
a:i:;d ~~h,:, Y
Two questions arise for consideration. The'first is,
v.
whether any application under article 136, under· the
Th• St•t•.
circumstances of the case, can be made to the Supreme
Court;-and, the second is, whether on a consideration Kan;a c. J.
of the facts, if it has jurisdiction to entertain· the
petitions, the Court should grant special leave. · The
first question depends on the construction of the
relevant articles in the Constitution of India. Under
article 374 (4), on and from the commencement of this
Constitution the jurisdiction of the authority functioning· as the Privy Council in a State specified in.
Part B to the First Schedule to entertain· and dispose
of appeals and .petitions from or in respect of any
judgment, decree or order of any court within that
State ceased, and all appeals and other proceedings
pending before the said authority at such commencement stand transferred to and have to be disposed of
by the Supreme Court. This sub-clause thus abolishes
the jurisdiction of the Privy Council of the Hyderabad_
State and after the Constitution of India came into
force that body and its jurisdiction altogether ceased.
On the facts before us, it is clear that as no proceeding
or appeal in respect of these judgments of the Hydera-.
bad High Court.was pending before the Hyderabad
Privy Council before its abolition, nothing got transferred to the Supreme Court by operation of this sub- .
clause.
It wls argued on behalf of the petitioners that on
the 25th January, 1950, they had a right to move the
High Court at Hyderabad for a certificate granting
them leave to appeal to the Privy Council of the
Hyderabad State. In fact such petitions were pending
on that day. It was therefore argued that a right to
appeal which existed on the 25th of January, 1950,
cannot be impliedly taken away by the Constitution
of India being made applicable to the State of
Hyderabad. It was pointed out that in respect of
convictions all pers.ons who had rights of appeal, or
•
944
SUPREME COURT REPORTS
[1950]
1950
who had time to file their applications for a certificate,
-
as also persons whose petitions were pending before
Ja:a;:~::::dy the Hyderabad High Court ~sking for such. certificates
v.
and which had not been disposed of because of the
The State.
congestion of work in the High Court would lose their
right to appeal to the higher court if article 136 is not
Km1ia c. J.
construed so as to give a right of appeal to the Supreme
Court of India. It was pointed out by the AttorneyGeneral, appearing on behalf of the State, that if a
wide construction is given to article 136 it will not only
permit persons who are stated to be under such hardship to apply for leave under article 136 but several
. other rights will be created. Such rights will arise not
. only in criminal cases but in civil cases also and they
can be exercised without any limitation as to the
period within which the application has to be made,
with the result that old judgments may also be called
into question. Moreover, on the wider construction of
article 136, judgments which had become final in those
States in which there existed no court like the Privy
Council to whom appeals could lie from the judgments
of their High Courts, will be subject to appeal though
no such appeal lay before. It was therefore argued
that on the ground of convenience the balance if at all.
is against the argument advanced by the petitioners.
It was strenuously urged that this is a wrong approach
to the question altogether.
Articles of the Constitution have to be construed according to their plain
natural meaning and cases of hardship should not be
brought to bear on the natural construction. Hard
cases should not be permitted to make bad law. In our
opinion, this argument of the Attorney-General is sound.
The question of hardship cannot be and should not be
allowed to affect the true meaning of the words used in
the Constitution. It is therefore proper to approach
the articles irrespective of considerations of hardship.
In order to decide whether on the facts of this case,
the Supreme Court has jurisdiction to grant special
leave, it is necessary only to consider articles 133, 134,
135 and 136 of the Constitution of India. Article 133,
in substance, retains the old provisions of the Civil
...
S.C.R.
SUPREME COURT REPORTS
945
Procedure Code in respect of appeals to the Privy
1950
Council from High Courts in civil matters. Under 1
d-R dd
article 134, it is provided that an appeal shall lie to·· •::d ~h.:, 11
the Supreme Court from any judgment, final order or
v.
sentence in a criminal proceeding of a High Court in
The Stato.
the territory of India if the High Court ......... (then
follow three contingencies under which such appeals
Kania c. J.
can lie).
In article 133 also the words " in the territory of India " are used. Article 135 provides for
matters to which the provisions of articles 133 or 134
do not apply. It is there provided that until Parliament by law otherwise provides, the Supreme Court
shall also have jurisdiction and powers with respect
to any matter to which the provisions of article 133 or
134 do not apply, if jurisdiction and powers in relation to that matter were exercisable by the Federal
Court immediately before the commencement of this
Constitution under any existing law. This article was
included in' the Constitution to enable the Supreme
Court to exercise jurisdiction in cases which were not
covered by articles 133 and 134, in respect of matters
where the Federal Court had jurisdiction to entertain
appeals etc. from the High Courts under th~reviously
existing law.
This is obviously a provision to vest
in the Supreme Court the jurisdiction enjoyed by the
Federal Court, under the Abolition of Privy Council
Jurisdiction Act, 1949. It may be mentioned that the
jurisdiction of the Privy Council to entertain appeals
from High Courts, except those which were already
pending before it on the 10th October 1949, was taken
away by this Act. Provision had therefore to be
made in respect of appeals which were already pending
or which were not covered by th~ provisions of
articles 133 and 134. Article 136 of the Constitution
of India is in these terms:~
"136. (1) "Notwithstanding anything in this
Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment,
decree, determination, sentence or order in any cause
or matter passed or made by any Court or tribunal in
the territory of India.''
l~\
946
SUPREME COURT REPORTS
[1950]
1950
(2) ......... "
--
The expression "territory of India" is defined in
Ja•ar:~:hReddy article 1 in these terms :-
•• v. "'
"1. The territory of India shall comprise
Th• State.
(a) the territories of the States (meaning the
States mentioned in Parts A, B and C of the First
Kania G. J. Schedule),
(b) the territories specified in Part D of the First
Schedule, (viz., The Andaman and Nicobar Islands) and
(c) such other territories as may be acquired."
The question for consideration is whether on the
facts of the present case the Supreme Court can grant
special leave to appeal from a judgment, sentence or
order which was passed and made by the Hyderabad
High Court before 26th January, 1950. The important
fact to be borne in mind is that the Hyderabad courts
were not courts within the territory of India when
they pronounced their judgments on the 12th, 13th
and 14th of December, 1949. It is argued on behalf of
the petitioners that a narrow construction will take
away the valuable rights of appeal which had existed
in persons iJ.i the position of petitioners when the Constitution onndia was directed by H. E. H. the Nizam
by his firman to be applicable to the Hyderabad State
on the 26th of January, 1950, it should be held that as
no substantive right was provided in the Constitution
separately, the words of article 136 were wide enough
to give such right to the petitioners.
On the other
hand, it was then argued by the learned AttorneyGeneral that every legislation is primarily prospective
and not retrospective.
A right of appeal has to be
given specifically by a statute and it is not merely a
procedural right. If therefore there exists no right of
appeal under the Constitution such right cannot be
inferentially held to come into being on the application
of the Constitution to the Hyderabad State.
For this,
reliance was placed on the decision of the Privy
Council in Delhi Cloth and General Mills Ltd. v. Income Tax Commissioner, Delhi & Another(') and The
Colonial Sugar Refining Co. Ltd. v. Irving(•).
(1) 54 I.A. 421.
(2) [190\] A.O. 369,
S.C.R.
SUPREME COURT REPORTS
947
In our opinion, the contention of the Attorney-
!950
general on this point is correct.
There appears no
---
reason why in the present case the normal mode ofJanardan Reddy
·
t ·
1 · 1 t ·
·
I
]
and Others
mterpre mg a eg1s a 10n as prospective only s iou d be
v.
departed from. It was contended by Mr. Pritt that
The State.
the interpretation sought to be put by the State on
article 136 will require the insertion of the word
Kania c. J.
"hereafter" in the clause, for which there was no
justification. We are unable to accept this contention
because, prima f acie, every legislation is prospective
and even without the use of the word "hereafter" the
language of article 136 conveys the same meaning. It
should be noticed in this case that before the 26th
January, 1950, the Government of H. E. H. the Nizam
was an independent State in the sense that no court in
India or the Judicial Committee of the Privy Council
in London had any jurisdiction over the decisions of
the Hyderabad State Courts. To give the Supreme
Court of India jurisdiction over the decisions of courts
of such a state, one requires specific provisions or provisions which necessarily confer jurisdiction to deal, on
appeal, with the decisions of such courts. It is com.
mon ground that there is no express provision of that
kind.
There appear to us also no such necessary
circumstances which on reasonable construction should
be treated as impliedly giving such right of appeal. Indeed the words "territory of India" lead to a contrary
conclusion.
Under the words used in article 136 the
courts which passed judgments or sentence must be
courts within the territory of India. The territory of
the Government of H.E.H. the Nizam was never the
territory of India before the 26th of January, 1950, and
therefore the judgment and sentence passed by the
High Court of H.E.H. the Nizam on the 12th, 13th
and 14th December, 1949, cannot be considered as
judgments and sentence "passed by a court within
the territory of India". On that short ground alone
it seems that the petitioners' contention must fail.
It was argued by Mr. Pritt on behalf of the petitioners that if such construction were put, the territory
of the Province of Bombay also may be exduded from
•
948
SUPREME COURT REPORTS
[1950)
1950
the operation of article 136. The answer however is
that a right to file an appeal from the judgments of
Janardan R•ddy the High Court at Bombay in both civil and criminal
and Othors
matters existed under
the Civil Procedure Code,
v.
Criminal Procedure Code and the Letters Patent of
The State
the High Court before the 26th of January, 1950. Such
Kania o. J. right of appeal to the Judicial Committee of the
Privy Council, which previously existed, was transferred to the Federal Court by the appropriate legislation and eventually by article 135 to the Supreme
Court. Therefore by the interpretation, which we think
is the proper interpretation of article 136 of the Constitution of India, the right of appeal from the judgment of the Bombay High Court is not taken away. It
is true that having regard to the words used in
article 136 which can bear a wider meaning a right to
apply for leave to appeal to the Supreme Court is given
in respect of decisions not only of High Courts but of
other tribunals also. That larger right, if it did not
exist before the 26th January, 1950, can be legitimately
construed as newly conferred by article 136 and such
construction does not give rise to any' anomaly. In
our opinion, therefore as the judgments were pronounced and sentences passed in all these matters
before us by the High Court of Hyderabad, which was
in the territory of H.E.H. the Nizam and which territory was not the territory of India before the 26th of
January, 1950, and as those judgments were passed
before the Constitution came into force they do not fall
within the class of judgments against which special
leave to appeal to the Supreme Court can be asked for
under article 136. It is obvious that such judgments
are not covered under article 135 of the Constitution
of India.
In our opinion this Court has therefore no jurisdic-
•
tion to entertain these petitions for special leave to
appeal against such judgments of the High Court of
Hyderabad under Article 136 of the Constitution.
Cases like those of the petitioners are thus not covered
by articles 134, 135 or 136 and therefore the Supreme
Court in the present state of the legislation is unable to
S.C.R.
SUPREME COURT REPORTS
949
render any assistance to them. An omission to pro1950
vide for such relief in the Constitution cannot be
d. d b
h S
C
d
·
fJanardan Reddy
reme 1e
y t e
upreme
ourt an
assumption o
d Oth
jurisdiction which is not warranted by the clear words
an
v. "'
i!O'
of articles 134, 135 or 136 will be tantamount to makTile Stat•·
ing legislation by the Supreme Court which it is never
its function to do.
Kania o. J.
The petitions, under the circumstances, are rejected.
Petitions dismissed.
Agent for the petitioners : I. N. Shroff.
Agent for the respondent: P. A. Mehta.
GNANAMBAL AMMAL
v.
T. RAJU A YYAR AND OTHERS.
[SAIYID FAZL ALI, MuKHERJEA and
CHANDRASEKHARA AIYAR JJ.]
Hindu law-Will-Construction-General pinciples-Presunw
tion ag iinst intestacy.
The cardinal maxim to be observea by courts in construing a
will is to endeavour to ascertain the intentions of the testi:i.tor.
This intention has to be gathered primarily from the language of
the document which is to be read as a whole without indulging in
any conjecture or speculation as to what the testator would have
done if he had been better informed or better advised.
~
The courts are however entitled and bound to bear in mind
other matters than merely the words used.
They must consider
~-,
the surrounding circumstances, the position of the testator, his
family relationship, the probability that he would use words in a
particular sense, and many other things which are often summed
up in the somewhat picturesque figure 'the court is entitled to
put itself into the testator's armch&ir '.
But all this is solely ae an aid to arriving at a right construction of the will, and to ascertain the meaning of the language -
when used by that particular testator in that document.
As soon
as the construction is settled, the duty of the court is to carry
out the intentions as expressed. The court is in no c•se justified
in adding to testarnentary dispositions.
In all cases it musb
loyally carry out the will as properly construed, &nd thi~ duty is
1950
Dec. 21.
•