# SYED QASIM RAZVI v. THE STATE OF HYDERABAD AND OTHERS

- **Citation:** [1953] 1 S.C.R. 589
- **Court:** Supreme Court of India
- **Decided:** 1950-01-26
- **Case number:** Criminal Appeals Nos. 1449 and 1453 of 1950
- **Bench:** Patanjali Sastri C.J, MuKHERJEA, Chandrasekhara Aiyar, Vivian Bose, Ghulam Hasan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/syed-qasim-razvi-v-the-state-of-hyderabad-and-others-179
- **Pages:** 56

## Headnote

Constitution of India, 1950, arts. 13, 14, 21-Special Tribunal
Regulation (V of 1358-F, Hyderabad)-Trial under Regulation
commenced before 26th January, 1950-Trial continued after that
date-Validity of conviction-Regulation, whether discriminatory
and void-Question whether discriminatory provisions were applied
in fact after 26th January, whether relevant.
The Military Governor of the Hyderabad State promulgated
on October 30, 1948, a Regulation called the Special Tribunal
Regulation, V of 1358 Fasli, under which a Special Tribunal was
constituted consisting of three members appointed by the Military
Governor.
The Regulation provided that the Military Governor
may, by general or special order, direct that any offence or class
of offences should be tried by such Tribunal, and the procedure for
trial laid down in the Regulation differed from the provisions of
the Hyderabad Criminal Procedure Code in the following material particulars among others, viz., the Tribunal had power to
take cognisance of offences without committal, there was no provision for trial with jury or assessors, the language of the Tribunal was to be English, only a memorandum of the evidence need
be taken, there was no provision for de novo trial on change of
personnel, and there was no provision for transfer, revision or
confirmation of sentences. The cases against the petitioners, who
were charged with rioting, dacoity, arson and other offences, wern•
directed to be tried by the Special Tribunal on' October 6, 1949.
The accused were convicted in September, 1950, and the conviction on some of the charges was upheld by the High Court on
appeal in April, 1951.
The accused appealed to the Supreme
Court and also applied under art. 32 of the Constitution of India
for quashing the orders of the High Court and the Special Tribunal on the ground that the Special Tribunal Regulation became
void on the 26th January, 1950, as its provisions contravened
articles 14 and 21 of the Constitution which came into force on
that date, and the continuation of the trial and conviction of the
petitioners after that date was illegal:
Held, per PATANJALISASTRI C.J., MUKHERJEA and CHANDRASEKHARA AIYAR JJ. (BOSE and GHULAM HASAN JJ. dissenting). (i)
Article 13 of the Constitution had no retrospective effect and, even
77
1963
Jan. 19.
Syed Q,;,si1n
R11zvi
v.
The State of
Hyderabad
and OthtJrs.
590
SUPREME COURT REPORTS
[1953]
though some of the provisions of the impugned Regulation contravened art. 14, the Regulation must he held to be valid for all
past transactions and for enforcing rights and liabilities accrued
before the advent of the Constitution, and on this principle the
order made by the Military Governor referring the cases to the
Sp~cial Tribunal cannot be impeached, and the Special Tribunal
must be deemed to have taken cognisance of the cases properly
and its proceedings up to the date of the coming in of the Constitution must be regarded as valid.
(ii) In a case like this where part of the trial could not be
challenged as bad, it is incumbent on the court to consider, first,
¥vhether the discriminatory provisions of law could be separated
from the rest and even without them a fair measure of equality
in the matter of procedure could be secured to the accused and
secondly, whether the procedure actually followed did or did not
proceed upon the discriminatory provisions. A mere threat or
possibility of unequal treatment is not sufficient to invalidate the
subsequent proceedings.
(iii) On the facts the accused had substantially the benefit of
a normal trial, though there wer6 deviations in ce:rtain particulars
and the conviction of the petitioners could not be set aside merely
because the Constitution of India came into force before the·
completion of their trial.
BOSE J.-(i) Under Art. 13 (1) of the Constitution atrial cannot be legally continued after the Constitution on the basis of a law
which offends the fundamental provisions of the Constitution and
therefore wbich1 th

## Text

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' •
S.C.R.
SUPREME COURT REPORTS
,
589
SYED QASIM RAZVI
v.
THE STATE OF HYDERABAD AND OTHERS
(and other cases)
[PATANJALI SASTRI C.J., MuKHERJEA, CHANDRASEKHARA AIYAR, VIVIAN BOSE and GHULAM
HASAN JJ.]
Constitution of India, 1950, arts. 13, 14, 21-Special Tribunal
Regulation (V of 1358-F, Hyderabad)-Trial under Regulation
commenced before 26th January, 1950-Trial continued after that
date-Validity of conviction-Regulation, whether discriminatory
and void-Question whether discriminatory provisions were applied
in fact after 26th January, whether relevant.
The Military Governor of the Hyderabad State promulgated
on October 30, 1948, a Regulation called the Special Tribunal
Regulation, V of 1358 Fasli, under which a Special Tribunal was
constituted consisting of three members appointed by the Military
Governor.
The Regulation provided that the Military Governor
may, by general or special order, direct that any offence or class
of offences should be tried by such Tribunal, and the procedure for
trial laid down in the Regulation differed from the provisions of
the Hyderabad Criminal Procedure Code in the following material particulars among others, viz., the Tribunal had power to
take cognisance of offences without committal, there was no provision for trial with jury or assessors, the language of the Tribunal was to be English, only a memorandum of the evidence need
be taken, there was no provision for de novo trial on change of
personnel, and there was no provision for transfer, revision or
confirmation of sentences. The cases against the petitioners, who
were charged with rioting, dacoity, arson and other offences, wern•
directed to be tried by the Special Tribunal on' October 6, 1949.
The accused were convicted in September, 1950, and the conviction on some of the charges was upheld by the High Court on
appeal in April, 1951.
The accused appealed to the Supreme
Court and also applied under art. 32 of the Constitution of India
for quashing the orders of the High Court and the Special Tribunal on the ground that the Special Tribunal Regulation became
void on the 26th January, 1950, as its provisions contravened
articles 14 and 21 of the Constitution which came into force on
that date, and the continuation of the trial and conviction of the
petitioners after that date was illegal:
Held, per PATANJALISASTRI C.J., MUKHERJEA and CHANDRASEKHARA AIYAR JJ. (BOSE and GHULAM HASAN JJ. dissenting). (i)
Article 13 of the Constitution had no retrospective effect and, even
77
1963
Jan. 19.
Syed Q,;,si1n
R11zvi
v.
The State of
Hyderabad
and OthtJrs.
590
SUPREME COURT REPORTS
[1953]
though some of the provisions of the impugned Regulation contravened art. 14, the Regulation must he held to be valid for all
past transactions and for enforcing rights and liabilities accrued
before the advent of the Constitution, and on this principle the
order made by the Military Governor referring the cases to the
Sp~cial Tribunal cannot be impeached, and the Special Tribunal
must be deemed to have taken cognisance of the cases properly
and its proceedings up to the date of the coming in of the Constitution must be regarded as valid.
(ii) In a case like this where part of the trial could not be
challenged as bad, it is incumbent on the court to consider, first,
¥vhether the discriminatory provisions of law could be separated
from the rest and even without them a fair measure of equality
in the matter of procedure could be secured to the accused and
secondly, whether the procedure actually followed did or did not
proceed upon the discriminatory provisions. A mere threat or
possibility of unequal treatment is not sufficient to invalidate the
subsequent proceedings.
(iii) On the facts the accused had substantially the benefit of
a normal trial, though there wer6 deviations in ce:rtain particulars
and the conviction of the petitioners could not be set aside merely
because the Constitution of India came into force before the·
completion of their trial.
BOSE J.-(i) Under Art. 13 (1) of the Constitution atrial cannot be legally continued after the Constitution on the basis of a law
which offends the fundamental provisions of the Constitution and
therefore wbich1 though good when made, would have been bad if
it had been passed after the Constitution, because the most vital
part of a trial is its conclusion and therefore a conviction after
the Constitution based on matter, or as ·a result of procedure,
which is abhorrent to the Constitution would be bad.
This is not
giving retrospective effect to the Constitution because the conviction in such a case is after the Constitution and would be based
on matter which offends its £unB.amental guarantees.
(ii) In testing the validity of a law it is irrelevant to consider what has been done under it, for a law is either constitutional or not and its validity or otherwise cannot depend on what
has been accomplished under its provisions.
(iii) The provisions of the Special Tribunal Regulation which
confer an unfettered discretion on the l\1ilitary Governor to direct
any case or cases to the Tribunal without laying down any basis
for classification of the cases, the absence of committal Proceedings, the depr"ivation of the rights of revision and transfer and of
the right to a de nova trial, the right of the Tribunal to adopt a
summary procedure, and in particular the elimination of the
Urudu language which is the Court language of Hyderabad and of
the right to have sentences confirmed, are all discriminatory provisions; most of these provisions cannot he separa;~e4 fro~ th~
..
' ..
. ..
S.C.R.
SUPREME COURT REPORTS
591
good portions of the Regulation. The whole Regulation therefore
became void on the 26th of Ja.nuary, 1950, and the trial of the
petitioners after that date was under a void law; there was also
discrimination in fact after the 26th January as the proceedings
were conducted in English even after that date. The conviciion
of the petitioners was consequently illegal.
GHULAM HASAN J.-The discriminatory provisions of the
Regulation stood in the way of the petitioners even after the 26th
J auuary, 1950, and prevented them from exercising their right to
apply for bail, for transfer or for revision and this was quite sufficient for holding that the Regulation violated art. 14 and was
therefore void under art. 13. The question whether the discriminatory provisions were in fact applied to the petitioners' cases
after the 26th January, 1950, was irrelevant. The discriminatory
provisions are not severable from the rest of the Regulation and
the tria~ held under the Regulation· was therefore void under
art. 13 read with arts. 14 and 21 and the conviction of the
petitioners was illegal.
Anwar Ali Sarkar v. The State of West Bengal ([1952) S.O.R.
284), Lachmandas Kewalram Ah1ija v. The State of Bombay ([1952]
S.O.R. 710) explained and dittinguished.
ORIGINAL JURISDICTION.
Petitions Nos. 172 and
368 of 1952 under Art. 32 of the Constitution. Cases
Nos. 276, 277, 278, '279 and 280 of 1951, being
appeals under Arts. 132 (1) and 134 of the Constitution from the Judgment and Order of the 13th April,
1951, of the Hyderabad High Court in Criminal
Appeals Nos. 1449 and 1453 of 1950 were also heard
along with these petitions.
A. A. Peerbhoy and J. B. Dadachanji for the petitioners-appellants.
V. Rajaram Iyer, Advocate-General of Hyderabad
(K.S.R. Chari, with him) for the respondent (State of
Hyderabad).
1953.
January 19. 'l'he Judgment of Patanjali
Sastri O. J. and Mukherjea
and Ohaudrasekhara
Aiyar JJ. was delivered by Mukherjea J. Vivian
Bose and Ghulam Hasan JJ. delivered separate
judgments.
(Petition No. 172 of 1952 and Case No. 276 of 1951).
MuKHERJEA J.-Syed Qasim Razvi, the appellant
in this appeal, was one of the accused in what
i~ .
1953
Syed Qasim
Razvi
v.
The State of
Hyderabad
and Others.
1953
Syed Qasim
Razvi
v.
Th~ State of
Hyderabad
and Others.
Mukherjea J.
1592
SUPREME COURT REPORTS
[1953]
known as the Bibinagar dacoity case which took
place within the State of Hyderabad and in which,
according to the prosecution, a serious raid was committed by a party of armed Razakars in village Bibinat:ar, about 21 miles from. the city of Hyderabad,
attended with robbery, looting, arson, assault and
other violent acts on the afternoon of 10th January,
1948.
The First Information Report was lodged pn
the day following, but the police administration of
the State of Hyderabad was at that time under the
complete control of the Razakars and they tried to
minimise the gravity of the occurrence as far as possible and there was neither any proper police investigation nor any serious attempt to arrest the culprits
or bring them to trial. It was on the 28th of August,
1949, that is to say, after a lapse of 19 months after
the occurrence, that a charge-sheet was presented
before the Special Tribunal No. 4 at Trimulgherry,
Secunderabad, against the appellant and six other
persons. The Tribunal was constituted in accordance
with the provisions of the Spec~al Tribunal Regulation (Regulation V of 1358F) and as provided fo"r in
section 2 of the Regulation, it consisted of three
members appointed by the Military Governor. Under
section 3 of the Regulation,.it was competent to tile
Military Governor by general or special order to
direct that any offence or class of offences should be
tried by such tribunal and the procedure to be followed by such tribunal was laid down in section 4 of the
Regulation. The case against the appellant and his
co-accused was formally referred to the Special Tribunal by an order of the Military Governor dated the
6th of October, 1949; but as the charge-sheet had
been submitted on a previous date, anoth.er order was
passed on 8th of October, 1949, validating the
presentation of the charge-sheet.
The trial commenced before the Special Tribunal on 24th October,
1949, and on that day the Special Public Prosecutor
opened the case on behalf of the prosecution.
The
procedure followed in the case was the warrant procedure and the prosecution examined 40 witnesses in·
•
S.C.R.
SUPREME COURT REPORTS
593
all before closing its case.
The examination-in-chief
of all these witnesees was finished on the 21st November, 1949, and the appellant, at that stage, chose to
cross-examine only one witness, namely, the fortieth
or the last one and this was done on the 22nd N oveinber, 1949.
On 29th November, 1949, the accused
was examined under section 273 of the Hyderabad
Criminal Procedure Code which corresponds to
section 342 of the Indian Criminal Procedure Code,
and on the 5th of December following, charges were
framed against him under sections 123, 124, 330 and
177 read with section 66 of the Hyderabad Penal
Code.
The cross-examination of 18 prosecution witnesses was finished before the 26th of January, 1950,
and the rest of the witnesses were cross-examined
after that date. The accused was examined again on
26th February, 1950.
By their judgment dated the 11th September, 1950,
the Special Tribunal convicted the appellant on all
the charges mentioned above and sentenced him to
2 years' rigorous imprisonment under each of the
sections 123, 124 and 177 read with section 66 and to
7 years' rigorous imprisonment under section 330,
the sentences to run concurrently.
There was an
appeal taken by the appellant against this decision to
the High Court of Hyderabad. The High Court by
its judgment dated the 13th of April, 1951, allowed
the appeal to this extent only, namely, that it acquitted the accused of the charge under section 123 of
the Hyderabad Code, but otherwise dismissed the
appeal and affirmed the conviction and sentence
passed by the Special Tribunal.
On 6th of August,
1951, the High Court gave leave to the accused to
appeal to this court under ar~icles 132 and 134 of the
Constitution; and an appeal has been filed in pursuance of this certificate. The records of the appeal
have not been printed as yet, but in the mean
time the appellant presented an application under
article 32 · of the Constitution praying for a writ in
the nature of certiorari for quashing the orders of
the High Court as well as of the Special Tribunal
1958
Syed Qasini
Razvi
v,
The Stote of
Hyderabad
and Others.
Mukherjea J,
1953
Syed Qasim
Razvi
v.
The State of
Ifyderabad
and Others.
MukhCrjea J.
. \
594
SUPREME COURT REPQRTS
tl953j
referred to above and for releasing him on the
ground that the proceedings before the Special Tribunal became void after 26th of January, 1950, as they
co,nflicted with the provisions of articles 14 and 21 of
the Constitution.
As the trial became bad in law
a.fter 26th Jannary, 1950, the resulting conviction
and sentence were, it is said, illegal also, and the
appellant is entitled to be released from his imprisonment.
When this petition came up for hearing, a question
was raised by the learned Advocate-General for the
State of Hyderabad as to whether a petition under
article 32 wonld be the proper remedy in a case like
this having regard to the fact that the High Court,
which was a properly constituted court and was competent to go into the question of jurisdiction of the
Special 'fribunal, had already dealt with this matter.
Without expressing any opinion on this point, we
decided to hear arguments on the questions raised
treating them as preliminary points in the appeal
itself.
Whether the appeal will be heard further on
its merits will depend upon the decision we arrive at
in the present hearing.
'l'he contention of Mr. Peerbhoy, who appeared in
support of the appeal, mainly is that the procedure
laid down in the Special Tribunal Regulation for
trial of offences departs, in material particulars, from
that under the ordinary law obtaining in Hyderabad
and these differences do abridge the rights of the
accused and deprive them of benefits to which otherwise they would have been entitled under the general
law.
Prirna facie, therefore, the procedure for trial
under the Special Tribunal Regulation is discriminatory. It is urged that this discrimination could not
be justified on any reasonable principle of classification. No attempt was made in the Regulation to
classify the offences either with regard to their nature
or the area in which they were committed.
An unfettered discretion was left to the Military Governor
to refer any and every case as he liked to be tried by
the Special 'fribnnal without any rule or principle to
...
-\_
S.C.R.
SUPREME COURT REPORTS
595
guide his discretion.
The whole procedure, therefore, was void according to the
principles laid
down by this court in the case of Anwar Ali Sarkar
v. The State of West Bengal(1). It is true that in
this case the Constitution had not
come irito
force when. the trial
was
commenced and a
portion
of
the trial
had already
been
gone
through prior to the 26th of January, 1950; but it is
urged that as the continuance of the procedure
became void on and from the date of the Constitution,
the conviction and sentence resu !ting from the adoption of such procedure could not be upheld. In this
connection, reliance bas been placed upon the case of
Lachmandas Kewalram
Ahuja v. The
State
of
Bombay( 2 ) decided by this court which the learned
counsel contends exactly covers the present point.
The questions raised are uni:J.oubtedly important
and they involve an examination of some of the
earlier ,pronouncements of this court.
The first question that requires consideration is as
to whether the procedure for trial of criminal offences
laid down in the Special Tribunal Regulation is discriminatory in its character and offends against the
provision of article 14 of the Constibution? If it is
found that some of the provisions at least are discriminatory, the question would then arise as to what
exactly is the legal position in a case like this where
admittedly a considerable portion of the trial was
gone through prior to the coming into force of the
Constitution and that portion is immune from
challenge on the ground of discrimination, as the
rights guaranteed under the Constitution are not
retrospective in their operation. If the procedure
subsequently followed was also discriminatory, it is
not disputed that the conviction of the accused could
not stand. But if it is found that there was no occasion
after the 26th of January, 1950, to apply any of the
provisions of the Regulation which are discriminatory
in their character and if as a matter of fact the
procedure that was actually followed was substantially
(r) ~r952j S.C.R. 284.
(2) [r952] S.C,R, (ro,
.
1953
Syed Qasim
Razvi
v.
The State of
Hyderabad
and Others.
Mukherjea J,
1958
Syed Qasim
Razv_i
v
The State of
Hyderabad
and Others.
Mukherjaa J.
596
SUPREME COURT REPOR'fS
(1953]
the same as obtains under the ordinary law, could it
be said that the whole trial is vitiated and the result-.
ing conviction and sentence must necessarily be set
aside?
°Looking first of all to. the provisions of the Special
Tribunal Hegulation, it is to be noticed that the preamble to the Hegulation does not specify the object
of the enactment or the legislative policy behind it.
Apparently an unfettered discretion has been vested
in the Military Governor and he can send any offence
or class of offences to be tried by the Special Tribunal in any way he likes and there is no objective
expressly stated in the statute itself in relation to
which his discretion is to be guided or controlled. It
is indeed a matter of common knowledge that this
Hegulation was promulgated just after the termination
of the police action i.n Hyderabad when a most alarming and unsettled state of affairs prevailed in the
State. There was undoubtedly ample justification for
a special measure like this; but the question still
arises whether there are provisions iu the Regulation,
which being repugnant to the fundamental rights
enunciated in the Constitution, could not be enforced
after the Constitution came into force? The provisions in the Regulation were undoubtedly intended
to shorten criminal trials and constitute special courts
which would be left in entire charge of the cases
referred to them, leaving the ordinary courts to do
their normal work. Under section 6 of the Hegulation, a Special Tribunal has been given all the powers
which are conferred on a court of session by the
Hyderabad Criminal Procedure Code.
Section 4(1)
provides that it can take cognizance of offences
without the accused being committed to it for trial;
and under sub-section (7) of this section, the tribunal
is enjoined to follow the procedure prescribed for
summary trials by Magistrates, though it may, when
it considers proper, follow the warrant procedure. It
is open to the 8pecial Tribunal to direct that the
proceedings before it should be conducted in the
English language.
The Tribun1>l is not bonni\ tQ
\
J
..
).
-
S.C.R.
SUPREME COURT REPOR'fS
597
take down evidence at length in writing and it need
only cause a memorandum of the substance of what
each witness deposes to be taken down in English.
But here again if it considers proper, it can direct
that the entire evidence should be taken d€>wn.
Among other changes, the Regulation provides that
the tribunal would not be bound to adjourn any trial
for any purpose, there would be no de nova trial if
there is a change in its personnel, it can try any
accused person in his absence if it is satisfied that the
absence has been brought about by the accused himself with a view to impede the course of justice, and
if it considers proper, it can exclude the public from
any proceeding.
Section 7 provides that the tribunal can pass any sentence authorised by law and an
appeal would lie against its orders to the High Court
in the same way as orders of the Sessions Court would
be appealable under the provisions of the Hydernbad Criminal Procedure Code. The powers of revision
and transfer are wholly taken away and so also are
the provisions relating to confirmation of sentences.
These, in brief, are the features of the procedure laid
dcfwn for trial before the Special Tribunal.
It is admitte~ that at present no system of jury
trial obtains in the State of Hyderabad; there is no
doubt the provision for trial with the aid of assessors
in the city of Hyderabad itself. but there is no such
provision for areas outside the city.
Under the
ordinary procedure, the present case could not have
been tried with the aid of assessors and the appellant
cannot complain of inequality in this respect .• The
committal proceedings are undoubtedly eliminated
)Jut it has been brought to our notice by the learned
Advocate-General appearing for the
State
of
Hyderabad that the preliminary enquiry before committal is not compulsory under the Hyderabad Criminal Procedure Code; and under section 267-A of.
the Code, a Magistrate is competent without recording any evidence, or after recording some portion of
the evidence, to commit an accused for trial by the
78
1953
Syed Qasim
Razvi
v.
The State of
Hyderabad
and Others.
Mitkherjea J.
19~3
Syed Qasi1n
Raz vi
v.
The State of.
Hyderabad
and Others.
Mukherjea. J.
598
SUPREME COURT REPORTS
(1953)
Sessions Court if he is satisfied that there are sufficient grounds for such committal. It appears therefore that the elimination of the committal proceeding is not by itself a substantial departure from the
norrf!al procedure.
·Mr. Peerbhoy laid much stress upon the provision
of the Regulation which authorises the tribunal to
direct that the proceedings before it shall be conducted in the English language. This again cannot be
held to be discriminatory as the Hyderabad Code
nowhere prescribes any particular language to be
the language of the court.
There is no doubt that
ordinary court proceedings in
Hyderabad
are
conducted in Urdu, but Urdu is certainly not the
spoken language of even the majority of the people
within the Hyderabad State .. If the accused in a
particular case is not acquainted with the English
language and if by reason of the absence of adequate
arrangements to have the proceedings interpreted
to him in the language
he understands,
he
is prejudiced in his
trial, obviously it might be
a ground which may be raised en his behalf in an
appeal against his conviction.
But in our opinion
it cannot be said that the provision in the Regulation
relating to proceeding being conducted in .English if
the tribunal so desires per se violates the equal protection clause in the Constitution.
The power of granting adjournment rests, even
under ordinMy law. in the exercise of a sound discretion by the court and is not a matter of much consequenoe.
The court can also under the ordinary law
exclude members of the public or particular persons
from the court room in such circumstances as it considers proper (vide section '283 of the Hyderabad
Code). As regards denovo trial, when there is a change
in the personnel of the court, the provision of section
350 of the Indian Criminal Procedure Code is to the
effect that when a case after being heard in part goes
for disposal before another Magistrate, the accused
has the right to demand, before the second Magistrate commences the proceedings, that ~he witnesses
-
..
s.c.R.
SUPREME COURT REPORTS
599
already examined should be re-examined and reheard.
Under the corresponding section (section 281) of the
Hyderabad Code, however, though the accused can
demand re-exammation of the witnes:ies, the Magistrate can disallow such prayer if he considers pr'oper,
although the disallowing of such prayer may be a
ground for ordering a retrial by the High Court.
Obviously, the provision in the Special Regulation
deviates only to this extent from the ordinary procedure.
The continuance of a trial in the abJence of
the accused when the court is satisfied that the
absence has been brought about by the accused himself to impede the course of justi~e, is another special
feature of the trial before the Special Tribunal. Th,e
two material departures from the normal procedure
are to be found in the provisions contained in subsections (2) and (7) of section 4 of the Regulation.
Sub-section (2) authorises the tribunal to dispense
with recording the evidence in extenso and provides
that a record of the memorandum Df the substance
of the deposition of each witness would be sufficient.
There is a. proviso introduced by sub-section (2) (a)
which says that the above provision shall not preclude a special Tribunal from directing in respect of
any trial that the evidence should be taken down at
length.
Sub-section (7) lays down that unle~s something to the contrary has been provided for in the
llegulation, the tribunal should follow the procedure
of summary trial, though even here it can adopt
the warrant procedure for reasons which it has got to
record in writing.
.
The provision relating to summary trial irrespective of the nature of the offence and also that relating
to recording of evidence in a summary manner may
be considered prejudicial to the accused and may
norma.lly deprive him of benefits which are enjoyed
by other persons similarly situated who are tried
under the ordinary law.
One thing noticeable in the
Special .Regulation with regard to these provisions is
that an option has been given to the Special Tribu11al to adopt the warrant procedure in such cases as
1958
Syed Qllsim
Razvi
v.
The State of
Hydernbnd
llnd Others.
Mukherjea J.
•
•
1958
Syed Qasim_
Raz vi
v,
The State of
Hyderabrld
and Others.
Mukherjea J.
,.
600
SUPREME COURT REPORTS
(1953]
.it considers necessary and it can also direct that the
evidence should be taken down in extenso.
In the
case before us it is admitted that evidence was recorded in full and the procedure followed was the warrant
and "not the summary procedure.
Mr. Peerbhoy
argues that a law, which allows the summary procedure to be followed or the recording of evidence to
be dispensed with at the discretion of the court without any attempt to specify the .class of cases where
such exceptional provisions should be applied, is
prima facie discriminatory and is invalid under article
14 of the Constitution irrespective of the fact as to
. whether or not such provisions were actually applied
ip a particular case.
Whatever may be the position
where provisions of this character are laid down in a
statute enacted after the Ccmstitution came into force,
in a case like the present, where the proceedings
prior to 26th January, 1950, would have to be assumed
to be valid, the question as to what procedure was
actually followed after that date may be relevant for
the purpose of determining whether the trial could
be regarded as vitiated on the ground of infringement
of the equal protection rule.
We will have to deal
with this matter more fully later on.
Mr. Peerbhoy argues that even the substitution of
warrant procedure for sessions procedure constitutes
a substantial difference. We cannot accept this contention as sound. If we leave out the committal
proceeding, which
is
not compulsory under the
Hyderabad law, the accused could not be in a really
worse position by reason of the warrant procedure
being followed instead of the sessions procedure. In
the case before us it appears that the prosecution
had examined all their witnesses before the framing
of the charge and the accused was given an opportunity to cross-examine them at that stage.
He chose
to cross-examine only one of these witnesses and
after the framing of the charge all the prosecution
witnesses were cross-examined by him. Our a.ttention
has been drawn to the provision of section 267-A (2)
(b) of the Hyderabad Criminal Procedure Code which
j
S.C.R.
stJPRE1ME1 cotJRT REPORTS
601
speaks of recross-examination by the accused in a
sessions case. It appears that under the provisions
of the Hyderabad Code, in a sessions trial the prosecution witnesses are first examined and as soon as the
examination-in-chief of each one of them is finished
they cou Id be cross-examined on behalf of the accused.
After the prosecution has closed its case and before
the acc,μsed produces his defence witnesses, he is
allowed to recross-examine, if he so desires, any of
the prosecution witnesses, though such recross-examination is limited to matters which were not put to the
witnesses in the previous cross-examination. Neither
side cou_ld enlighten us on the point as to whether
this is allowed only when the committing Magistrate
does not exam~ne any witness before the commitment
order or it is applicable also when the prosecution
witnesses are examined and cross-examined at the committal stage. We do not think, however, that it is correct to say that during the sessions trial itself there are
three rights of cross-exmination given to the accused
as Mr. Peerbhoy contends. The accused can crossexamine the prosecution witnesses as and when they
are examined by the prosecution and he has a right
of second cross-examination at the end of the prosecution case and before he calls his own witnesses,
though the l{l,tter right is a thin and attenuated one·,
being confined to such matters as were omitted during
the first cross-examination.
In the warrant procedure which has been followed in the present case,
the accused also got two rights of cross-examination,
one before the framing of the charge and the second
after the charge was framed. In our opinion, this
cannot be said to be a substantial difference in the
procedure resulting in prejudice to the accused.
Mr .. Peerbhoy further argued that the provision
for appeal contained in the RegulatiQn deprived him
of the right of second appeal which is allowed under
the Hyderabad Code. This argument, in our opinion,
is based upon a misconception. It appears from secti9n 355 of the Hyderabad Criminal Procedure Code
that there are second appeals allowed under the
1958
.Syed Qasim
v.
The State of
Hyderabad
and Other&.
Mukhsrjoa J.
1958
Syed Qasim
Razvi
v.
, The State of
Hyderabad
and Others.
Mukhsrjea J.
602
SUPREME COURT REPORTS
[1953]
Hyderabad law even in criminal cases; and when it
is said that an appeal lies to the High Court from
the order of a Sessions Judge, it contemplates that
the order of the Sessions Judge may be passed by him
tiither as au original court or in appeal from the decision of a District Magistrate or Assistant Sessions
Judge. But in the present case the original trial
was by the Special Tribunal which was invested with
the powers of a sessions court and consequently only
one appeal would lie to the High Court. It is said
that the case could have been tried .by the District
Magistrate and in that case the accused could have
one appeal to the Sessions Judge and a second one
to the High Court under the Hyderabad law. 'I'his
contention rests on a pure speculation and is hardly
tenable. One of the charges against the accused was
a charge of dacoity under section 330 of the Hyderabad Penal Code.
On a conviction under this section
the court is empowered to sentence the accused to a
term of rigorous imprisonment which may extend up
to 10 years.
Unless, therefore, the District Ma11is-
•
•
0
trate was of the opm10n that the case did not merit a
sentence beyond 4 years of rigorous imprisonment,
he was bound to refer the case to be tried by a cour·t
of session.
This is not a matter of which really any
~rievance could be made.
The other departure noticeable in the
Special
Regulation is the withdrawal of the provisions relating to revision and transfer. Another thing that
has been omitted from the Special Tribunal Regulation is the provision relating to the confirmation of
certain sentences which under the ordinary law have
to be confirmed by higher authorities. According to
the Hyderabad Code, the High Court has not only to
confirm death sentences, but also sentences of transportation for lifll and of imprisonment for a period
exceeding 10 years.
The death sentences have got
to be further confirmed by the Nizam.
It would appear from what has been stated above
that there are a few provisions in the procedure
for trial by a Special Tribunal appointed under the
•
~.
S.C.R.
SUPREME COURT REPORTS
603
Regulation mentioned above, which differ from ordinary procedure, and they are prima facie prejudicial to
the accused. Under article 13 (1) of the Constitution,
all laws in force iu the territory of India immediately
before the commencement of the Constitution in so
far as they are inconsistent with the fundamental
rights under Part III of the Cou.~titution shall, to
the extent of such inconsistency, be void.
The
argument of Mr. Peerbhoy seems to be that it may
be that all the provisions relating to trial by a Special
Tribunal are not bad, but as some of them undoubtedly are, the whole law on the face of it is discriminatory and must be held to be void as conflicting with
the equal protection clause, and the question as to
how it was actually worked out iu a particular case is
not a material fact for consideration at all. In support
of this contention the learned counsel relies upon
·the view accepted by the majority of this court in
the case of State of West Bengal v. Anwar Ali
Sarkar('). In our opinion, the
position here is
materially different from that iu Anwar Ali Sarkar's
case('). Iu Anwar Ali Sarkar's case (') the opinion
expressed by the majority of this court was that
section 5 (1) of the West Bengal Special Courts Act
was ultra vires the Constitution iu so ·far as it
authorised the State Government to direct any case
to be tried by the Special Court.
The clause was
held to be invalid, as the Act, which was passed after
the coming into force of the Constitution, did not
mention in what cases or offences such directions
could be given, uor did it purport to lay down the
criterion or the basis upon which the classification
was to be made.
As this portion of section 5 (1) of
the statute was ou the face of it discriminatory, the
question as to how it was applied on the facts of a
particular case could not and did uot arise.
Iu the case b~fore us, the impugned Regulation
was in operation from long before the date of the
Constitution. Section 3 of the Regulation, which is
similar to section 5 (1) of the West Bengal Special
(1) (1952] S.C.R. 284.
1958
Syed Qastm
Razvi
v.
The State of
Hyderabad
and Othera.
Mukherjea J.
•
1968
Syed Qasim
Razvi.
v.
The Stat• of
Hyderabad
and Others.
Mukherjea J.
604
SUPREME COURT REPORTS
[1953]
Courts Act, might be in conflict with the provision
of article 14 of the Constitution, but as has been held
by this court in Keshavan Madhava Menon's case (1),
the effect of article 13 (1) of the Coustitution is not
to obliterate the entire operation of the inconsistent
laws or to wipe them out altogether from the statute
book; for to do s9 will be to give them retrospective
effect which they do not possess.
Such laws must
be held to be valid for all past transactions and for
enforcing rights and liabilities accrued before the
advent of the Constitution.
On this principle, the
order made by the Military Governor, referring this
case to the Special Tribunal, cannot be impeached
and consequently the Special Tribunal must be
deemed to have taken cognizance of the case quite
properly, and its proceedings up to the date of the
coming in of the Constitution would also have to be
regarded as valid. To quote the observation of our
brofoer Das J. in Lachmandas Kewalram Ahuja v.
The State of Bombay (2), " as the Act was valid in its
entirety before the date of the Constitution that part
of the proceeding before the Special Judge which up
to that date had been regulated by the special procedure cannot be questioned."
The question now
arises, how is the validity of the proceedings subsequent to the date of the Constitution to be
determined ?
It is not disputed that· under article 13 (1) of the
Constitution those provisions of the Special 'rribunal
Regulation which are in couflict with article 14of the
Constitution, became void as soon as the Constitution
came into force; but article 13 (1) does not make the
whole statute invalid, it invalidates only those provisions which are inconsistent with the fundamental
rights guaranteed under Pa,rt III of the Constitution
and simply because the 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
(1) (1951) S,C.R, 228,
(2) [1952] S.C.R.710.
,I
S.C.R.
SUPREME COURT REPORTS
605
from the normal standard in material respects so a.s
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 got 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 present case?
Mr. Peerbhoy argues that once it is held that there
are in the Special Tribunal Regulation provisions
which are obnoxious to the equal protection clause,
any proceeding under the Regulation after the 26th
of January, 1950, must be held to be totally invalid
under article 13 (1) of the Constitution, and it is not
material to enquire whether the trial could go on
without the discriminating provisions or whether as a
matter of fact these provisions were at all applied. It
is the possibility of unequal application of law or the
threat to equality that makes the Regulation invalid
after the Constitution comes into force and consequently the question of actual prejudice to the
accused is not a relevant matter for consideration.
In support of this contention the learned counsel
relies strongly upon the decision of this court in
Lachmandas
Kewalram
Ahuja v. The State of.
Bombay (' ).
We are not convinced that this line of
reasoning is correct. In Lachmandas's caso( 1) the
trial was held before a Special Tribunal constituted
under section 10 of the Bombay Public Safety
Measures Act, 1947, and in accordance with the procedure laid down in that Act.
The procedure was
pronounced to be discriminatory in material particulars and though that part of the trial, which was
held prior to 26th January, 1950, could not be
assailed, the continued application of the discriminatory procedure after that date was held to be illegal;
and the result was that the conviction of the accused
(1) [195z] S.C.R. 710,
79
1963
Syed Qa.!im
Ra~vi
v.
The Stat• of
Hyderabad
and Others.
Mukherjea J.
·1958
Syed Qasim
Bazvi
v.
The State of
Hyderabad
and Others.
Mukherjea J,
606
SUPREME COURT REPORTS
[1953)
was set aside and a retrial ordered. It appears to us
that in Lachmandas's case(!) the present question was
neither raised nor considered, namely, as to whether
after eliminating the discriminatory provisions in the
statute it was still possible to go on with the trial
and secure to the accused substantially the benefits
of a trial under the normal procedure.
On the other
hand, it was assumed throughout that it was not
possible to proceed with the trial without following
the discriminatory procedure and as that procedure
became void on the coming into force of the Constitution, the jurisdiction of the Special Judge practically came to an end.
Das J.