# THE STA TE OF HYDERABAD AND OTHERS. KULLURI YELLADU AND OTHERS v. THE STATE OF HYDERABAD AND OTHERS

- **Citation:** [1951] 1 S.C.R. 344
- **Court:** Supreme Court of India
- **Decided:** 1950-01-26
- **Bench:** SAIYID FAzL Au. MEHR CHAND MAHAJAN, Mukherjea, Das, (Handrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-sta-te-of-hyderabad-and-others-kulluri-yelladu-and-others-v-the-state-of-87
- **Pages:** 27

## Headnote

Constitution of India, Art. 32-Special Tribunals Regulation
(Hyderabad), ss. 2, 7-Conviction and death sentence by Special
Tribunal-Confirmation by High Court before 26th January, 1950App!ication under Art. 32 for writs of prohibition, certiorari and
habeas corpus-Maintainability-Detention under conviction by
criminal court-Applicatio1t for habeas corpus-Jurisdiction of convicting court, whether can be gone into-Effect of confirmation of
conviction on appcal-Misjoinder of charges-Omission to provide
counsel for accused-Validity of conviction-Interference under
Art. 32.
There is a basic difference between want of juri<diction and
an illegal or irregular exercise of jurisdiction, and mere non-compliance with rules. of procedure (e. g., misjoinder of charges)
cannot be made a ground for granting a writ under Art. 32 of the
Constitution. The defect, if any, can, according to the procedure
established by law, be corrected only by a court of appeal or
revision, and if the appellate court which was competent to deal
with the matter has considered the matter and pronounced its
judgment, it cannot be reopened in a proceeding under Art. 32 of
the Constitution.
Where, some time after the pronouncement of a sentence of
death by hanging by a Special Tribunal of the Hyderabad State
and pending confirmation of the sentence by the High Court of
Hyderabad, a Regulation was passed to the effect that notwithstanding anything contained in any law for the time being in
force any sentence of death passed by a Special , Tribunal shall be
carried into execution by hanging: Held, that the Regulation
S.C.R.
SUPREME COURT REPORTS
345
must be taken to have retrospective t'ffect, as the mode of execul!l51
tion of a sentence cannot be regarded as a matter of substantive
law, and. the sentence for hanging cannot be held to l>e illegal Janardan Redd.I/
even assuming that under the law which was in force in Hyderabad
and Othera
at the time the sentence was passed by the Special Tribunal,
v.
sentences to death could be carried out only by decapitation. ~n
The State of
any event, as the Hi.E(h Court which upheld the conviction had Hydembrrd and
the power to impose the sentence of death by hanging under the
Otoo·s.
Regulation, no relief could be granted to the accused under Art.
32 of the Constitution.
Section 7(2) of the Special Tribunals Regulation passed by
the Military Governor of Hyderabad covered all those cases where
manzuri and tashih were contemplated under the old law arid
sentences of death passed by a Special Tribunal could therefore
be executed without the assent or approval of H.E. H. the Nizam.
The result of s. 271 of the Hyderabad Criminal Procedure
Code, (which corresponds to s.340 of the Indian Criminal Procedure
Code) read along with the Rules and Circular Orders issued by
the Hyderabad High Court is : (i) that it cannot be laid down as
a rule of law that in every capital sentence where the accused is
unrepresented the trial should be held to be vitiated; and (ii)
that a court of appeal or revision is not powerless to interfere if
it is found that the accused was so handicapped for want of legal
aid that the proceedings against him may be said to amount to
negation of a fair trial.
The writs referred to in Art. 32 must obviously be correlated
to one or more of the fundamental rights conferred by Part III
of the Constitution and can be made only for the enforcement of
such rights.
The petitioners who were convicted by a Special Tribunal of
Hyderabad of murder and other offences and sentenced to death
by hanging and whose convictions and sentences had been confirmed by the Hy'derabad High, Court before the 26th January,
1950, applied to the Supreme Court under Art. 32 of the new
Constitution for the following reliefs: (i) a writ ih 'the nature of
certiorari calling upon the Government of Hyderabad and the
Special Judge to produce the records of the case and show cause
why the convictions and sentences should not be quashed, (ii) for
a writ of p

## Text

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1961
March 16.
344
SUPREME COURT REPORTS
JANARDAN REDDY AND OTHERS
V.
[1951]
THE STA TE OF HYDERABAD AND OTHERS.
KULLURI YELLADU AND OTHERS
v.
THE STATE OF HYDERABAD AND OTHERS.
MUNGALA SAMUEL AND OTHERS
V.
THE STATE OF HYDERABAD AND OTHERS.
[SAIYID FAzL Au. MEHR CHAND MAHAJAN,
:MUKHERJEA, DAS and (HANDRASEKHARA AIYAR JJ.]
Constitution of India, Art. 32-Special Tribunals Regulation
(Hyderabad), ss. 2, 7-Conviction and death sentence by Special
Tribunal-Confirmation by High Court before 26th January, 1950App!ication under Art. 32 for writs of prohibition, certiorari and
habeas corpus-Maintainability-Detention under conviction by
criminal court-Applicatio1t for habeas corpus-Jurisdiction of convicting court, whether can be gone into-Effect of confirmation of
conviction on appcal-Misjoinder of charges-Omission to provide
counsel for accused-Validity of conviction-Interference under
Art. 32.
There is a basic difference between want of juri<diction and
an illegal or irregular exercise of jurisdiction, and mere non-compliance with rules. of procedure (e. g., misjoinder of charges)
cannot be made a ground for granting a writ under Art. 32 of the
Constitution. The defect, if any, can, according to the procedure
established by law, be corrected only by a court of appeal or
revision, and if the appellate court which was competent to deal
with the matter has considered the matter and pronounced its
judgment, it cannot be reopened in a proceeding under Art. 32 of
the Constitution.
Where, some time after the pronouncement of a sentence of
death by hanging by a Special Tribunal of the Hyderabad State
and pending confirmation of the sentence by the High Court of
Hyderabad, a Regulation was passed to the effect that notwithstanding anything contained in any law for the time being in
force any sentence of death passed by a Special , Tribunal shall be
carried into execution by hanging: Held, that the Regulation
S.C.R.
SUPREME COURT REPORTS
345
must be taken to have retrospective t'ffect, as the mode of execul!l51
tion of a sentence cannot be regarded as a matter of substantive
law, and. the sentence for hanging cannot be held to l>e illegal Janardan Redd.I/
even assuming that under the law which was in force in Hyderabad
and Othera
at the time the sentence was passed by the Special Tribunal,
v.
sentences to death could be carried out only by decapitation. ~n
The State of
any event, as the Hi.E(h Court which upheld the conviction had Hydembrrd and
the power to impose the sentence of death by hanging under the
Otoo·s.
Regulation, no relief could be granted to the accused under Art.
32 of the Constitution.
Section 7(2) of the Special Tribunals Regulation passed by
the Military Governor of Hyderabad covered all those cases where
manzuri and tashih were contemplated under the old law arid
sentences of death passed by a Special Tribunal could therefore
be executed without the assent or approval of H.E. H. the Nizam.
The result of s. 271 of the Hyderabad Criminal Procedure
Code, (which corresponds to s.340 of the Indian Criminal Procedure
Code) read along with the Rules and Circular Orders issued by
the Hyderabad High Court is : (i) that it cannot be laid down as
a rule of law that in every capital sentence where the accused is
unrepresented the trial should be held to be vitiated; and (ii)
that a court of appeal or revision is not powerless to interfere if
it is found that the accused was so handicapped for want of legal
aid that the proceedings against him may be said to amount to
negation of a fair trial.
The writs referred to in Art. 32 must obviously be correlated
to one or more of the fundamental rights conferred by Part III
of the Constitution and can be made only for the enforcement of
such rights.
The petitioners who were convicted by a Special Tribunal of
Hyderabad of murder and other offences and sentenced to death
by hanging and whose convictions and sentences had been confirmed by the Hy'derabad High, Court before the 26th January,
1950, applied to the Supreme Court under Art. 32 of the new
Constitution for the following reliefs: (i) a writ ih 'the nature of
certiorari calling upon the Government of Hyderabad and the
Special Judge to produce the records of the case and show cause
why the convictions and sentences should not be quashed, (ii) for
a writ of prohibition directing the Government and Special
Judge not to execute the petitioners, and (iii) for a writ of habeas
corpus:
Held, (i) that the writs of certiorari and prohibition could
not be granted as at the date when the High Court dealt with the
case and confirmed the conviction and sentences of the petitioners,
the Supreme Court was not in existence and the Hyderabad
Court could not by any stretch of reasoning be said to have b~n
subordinate to the Supreme Court;
415
346
SUPREME COURT REPORTS
(1951]
1951
(ii) the writ of habeas corpus could not be granted
inasmuch as a return that the person is in detention in execution
Janardan Reddy of a sentence on indictment on a criminal charge is a sufficient
and Others
answer to an application for such a writ ;
v.
(iii) assuming that it is open even in such cases to investiThe SUit• of gate the jurisdiction of the court which convicted the petitioners,
Hyderabad and the mere fact that the trial court had acted without juri'<liction
Others.
would not justify interference, if the conviction and sentence had
been upheld on appeal by a court of competent jurisdiction; for,
the appellate court in a case which properly comes before it on
appeal, is fully competent to decide whether the trial was with or
without jurisdiction and it has jurisdiction to decide tho matter
rightly as well as wrongly; and as the High Court at Hyderabad
had jurisdiction to hear and decide the appeal, the detention of
the petitioners could not be held to be invalid;
(iv) as the judgment of the High Court was pronounced
before the 26th January, 1950, and it had acquired a finality in the
fullest sense of the term before that date, the Supreme Court
had no power to re-open that judgment under the provisions of
the new Constitution ;
(v) the fact that the petitioners had lost their right of
appeal to the Judicial Committee of Hyderabad by a sudden
change in the law and by the delay on the part of the High Court
in the disposal of their application for leave to appeal to the said
Committee was a matter for the executive authorities to consider;
it could not widen the scope of the existing remedial laws beyond
legitimate bounds.
1
Quaere: Whether an application under Art. 32 is maintainable after a similar application under Art. 226 has been dismissed
by the High Court.
. In re Authers [(1889) 22 Q.B.D. 345], In re Bailey (3 E. & B.
607) andln re Bakers (2 H. & N. 219) not followed. In re Newton
(139 E. R. 692), In re Bonomally Gupta (44 Cal. 723), Greene v.
Secretary of State for Home Affairs ([1942] A.C. 284), Ex parte
Lees [(1868) E.B. & E. 828], R .. v. Suddis [(1801) 1 East 306],
Carus Wilson's case [(1845) 7 Q.B. 984] referred to.
ORIGINAL JURISDICTION : These were two sets of
petitions by three groups of persons, one under Art. 32
of the Constitution (Petitions Nos. 12, 13 and 14, of
1951) and the other under Art. 136(1) of the Constitution (Criminal Miscellaneous Petitions Nos. 14, 15
and 16) against the judgment and order dated 19th
December, 1950, of the. High Court of Judicature at
Hyderabad (M. Khaliluzzaman Siddiqi J.) in Miscellaneous Petitions Nos. 2297, 2298 and 2299 of 1950.
The facts are set out in detail in the judgment.
S.C.R.
SUPREME COURT REPORTS
347
1951
D. N. Pritt (Dattial Latifi and Gopal Singh, with
him) for the petitioners.
•
•
Janardan Reddy
M.C. Setalvad, Attorney-General for India, and Ra1aand Others
ram Aiyar, Advocate-General of Hyderabad, (G.N. Joshi,
v.
with them) for the respondents.
The Stat• oJ
Hyderabad and
1951. March 16. The judgment of the Court was
delivered by
FAZL Au J .-These are six petitions which have been
presented to this Court on behalf of three groups of
persons in the following circumstances.
On the 30th October, 1948, the Military Governor
of Hyderabad by virtue of the powers delegated to
him by H. E. H. the Nizam enacted the Special Tribunals Regulation (No. 5 of 1358 F}, which was amended
by several later Regulations issued on the 22nd May,
1949, 10th July, 1949, 23rd July and 30th October,
1949. The Regulation provided among other things
that the Military Governor may constitute a Special
Tribunal or Tribunals, each consisting of three members appointed by him, and that he may by general or
special order direct that these Tribunals shall try any
offence, whether committed before or after the commencement of the Regulation, or any class of1 offences.
Section 8 of the Regulation empowered the Military
Governor to direct, by order, that in such circumstances and under such conditions, if any, as may be specified in the direction, any power or duty conferred or
imposed upon him by the Regulation may be exercised
or discharged by any other authority. In accordance
with the Regulation, certain Tribunals were constituted, and one of the Tribunals-Tribunal A for Nalgonda district - proceeded to try certain cases made
over to it by the Civil Ad!llinistrator of Nalgonda under the powers vested in him by the Military Governor. Among the cases tried by this Tribunal were also
three cases in which the petitioners were concerned,
these being registered as Criminal Cases Nos. 14, 17
and 18 of 1949. These cases were based on three
charge sheets submitted by one Mr. Hanumantha
Others.
Fazl Ali J.
348
SUPREME COURT REPORTS
[19 5!]
1951
Naidu, a senior police officer of Nalgonda district, one
Janaman R..utyof which was No. 14 dated the 7th April, 1949, and
arnl oti..rs
the other two were Nos. 14 and 15 dated the 20th July,
v.
1949. In these chargesheets, the accused were generally
The State 0! referred to as "Communists wedded to the policy of
Hyd~";.baa arnl overthrowing the Government by violence and setting
~·
up in its place Communist Raj." and the specific cases
Fazl Ali 1.
made out against them were briefly as follows. In the
first case (Criminal Case No. 14 of 1949), the charge·
sheet stated that the accused went to a certain village
in Nalgonda district on 21st September, 1948 'in
khaki uniform and holding unnotified firearms,"
caught hold of four persons as they had not paid the
full subscription demanded of them, decoyed them to
the outskirts of the village and then "killed them by
cutting their throats." In the second case (Criminal
Case No. 17), it was stated that on the 6th April, 1949,
at about 9 A. M. two of the accused came to a certain
village and began to fire their guns, but when "the
public" approached them asking them to surrender
they ran away and joined the other persons accused in
the case. Later on, all the accused "marched on the
villagers" and opened fire at them indiscriminately
with the result that one of them received an injury in
his right thigh which subsequently proved fatal, and
another received a minor injury on his left hand. The
version given at the trial in this case was slightly
different and shows that the two accused who had visited the village were chased by 50 or 100 persons to a
place called Madireddychelka where the other accused
joined them, and after parleying with the chasers,
accnsed No. 4 fired and hit one of the villagers on the
thigh and the latter died .. Thereupon the accused
chased the remaining villagers, firing their guns, and
one of the bullets grazed the middle finger of one of the
villagers and caused a slight injury to it. In the third
case (Criminal Case No. 18), the facts were stated to
be these:-On the 15th May, at about midnight, the
accused visited Kasthala village, carrying firearms and
dressed in khaki uniform. They got upon the terrace
of one Kankayya where one Natala Rama Reddy was
S.C.R.
SUPREME COURT REPORTS
349
sleeping, caught hold of him and took him forcibly to
1951
the outskirts of the village in spite of the protests of a J
rda
R dd
num her of villagers who had followed, and "killed a':rnt ~the;• Y
him by firing gunshots at him."
.
v.
Upon these facts, the trial of the petitioners proThe State of
ceeded, and they were ultimately convicted of murder Hyd::':ibaa and
and sentenced to death, and also convicted of certain
1 era.
other offences including the offence of carrying fireFazl AU J.
arms without licences and sentenced to various terms
of imprisonment. After their conviction, the petitioners appealed to the Hyderabad High Court, but
their convictions and sentences were confirmed. Thereafter, they tried to obta~n the leave of the High Court
for appealing to the Judicial Committee of Hyderabad,
but, while their applications were stil1 pending, the
Constitution of India came into force and since the
Judicial Committee ceased to function under the new
Constitution they amended their original application
by asking fur leave to appeal to this Court under article 134 (c) of the Constitution. This application being
unsuccessful, they applied to this Court for special
leave to appeal, but that application was dismissed on
the ground that this Court had no jurisdiction under
article 136 of the Constitution to hear an appeal
from a judgment delivered by the High Court
at Hyderabad before the 26th January,
1950,
since that Court
was not
within
the territory of ·India*. The petitioners then made applications to the High Court under article 226 of the
Constitution, and those applications having been
rejected, they filed two sets of petitions in this Court,
one under article 32 of the Constitution, and the other
for special leave to appeal against the order of the High
Court refusing to grant them relief under article 226.
The main points urged by Mr. Pritt, who appeared
before us on behalf of the petitioners, were as follows:-
( I) The trial of the petitioners by the Special
Tribunal was without jurisdiction.
(2) In Criminal Cases Nos. 17 and 18 of 1949, there
was no fair trial, inasmuch as the persons accused in
• Vide (19~0] S.O,R. 940.
350
SUPREME COURT REPORTS
[1951]
1951
those cases were not afforded any opportunity to
-
instruct counsel and they had remained undefended
Ja""'_'1;'0n hReddy throughout the trial.
anut era
v.
(3) The trials in question were illegal by reason of
Th• Stat• of misjoinder of charges.
Hya....ba<t and
( 4) At the time of the passing of the sentence, the
Others.
sentence of death could be lawfully executed by
:Fazl Ali 1.
decapitation only and not by hanging, and hence the
sentence of death by hanging passed upon the accused
in the first case was illegal.
(5) The sentence of death could not be executed
without the assent or the approval of H. E. H. the
Nizam which had not yet been obtained.
The last three points seem to us to have very little
substance and may be shortly disposed of.
It appears that in all the three cases, besides being
charged with murder, rioting and certain other
cognate offences, which on the face of the record
appear to have been committed in the course of the
same transaction, the petitioners were also charged
with carrying unlicensed firearms. It was contended
on behalf of the petitioners that the offence of carrying
unlicensed firearms was wholly unconnected with the
other offences and could not be said to have been
committed in the course of the same transaction. It
seems that this very point was raised in the High
Court, but it was negatived, firstly on the ground that
there was no misjoinder of charges and no violation of
the provisions of the Criminal Procedure Code, and
secondly, on the ground that no prejudice had been
caused by the so-called niisjoinder. The entire argument on behalf of the petitioners was based on the
case of Subramania Iyer v. King Emperor('). That case
had somewhat peculiar features, because the accused
was tried for no less than 41 separate offences in
contravention of the provisions of section 234 of the
Criminal Procedure Code, and in these circumstances
it.was observed by the Privy Council that the mischief
sought to be avoided by the section having been
ll) L. 11. !18 LA. 2b7.
S.C.R.
SUPREME COURT REPORTS
351
committed, '' the effect of the multitude of charges
1951
before the jury had not been averted by dissecting the
d ·
f
d
d
' · ·
.
·
1.anardan Reddy
ver ict a terwar s an . appropnatmg the finding of' and Others
guilt only to such parts of the written accusation as
v.
ought to have been submitted to the jury.'' The case
The State of
has been discussed, explained and distinguished in a Hyderabad and
number of cases, and it must be read with the subOthers.
sequent decisions of the Privy Council in Abdul RahFazl AU J.
man v. King Emperor (1) and in Babu Lal v. Emperor(2)
which have been understood by some of the Indian
courts to have greatly modified and restricted the very
broad rule which at one time there was a tendency to
deduce from certain general observations made by the
Privy Council. It may be that on a more appropriate
occasion we may have to review the case law on the
subject and lay down the true scope of the pronouncements made by the Privy Council in the cases referred
to above and the effect which in law the misjoinder of
charges would have upon the trial. But, for the
purpose of the present case, it is sufficient to point out
that even if we assume that there was some defect in
the procedure followed at the trial, it does not follow
that the trial court acted without jurisdiction. There
is a basic difference be! ween want of jurisdiction and an
illegal or irregular exercise of jurisdiction, and our
attention has not been drawn to any authority in
which mere non-compliance with the rules of procedure
has been made a ground for granting one of the writs
prayed for.
In either case, the defect, if any, can
according to the procedure establishe.d by law be
corrected only by a court of appeal or revision. Here,
the appellate court which was competent to deal with
the matter has pronounced its judgment against
the petitioners, and the matter having been finally
decided is not one to be reopened in a proceeding
under article 32 of the Constitution.
The fourth point raised on behalf of the petitioners
is not only a highly technical one but is also entirely
devoid of merit. A reference to the Hyderabad Penal
Code shows that in section 243, which deals with the
(I) L. R. 6' l. A, 96.
(t) A. I. B. 1930 P. O. 130,
I
352
SUPREME COURT REPORTS
(1951]
1951
offence of murder, all that is stated is that death is one of
-
the penalties. That section does not state how the senJana.:ida; h Reddy tence of death is to be executed. When we turn to the
a
v'. era
Hyderabad Criminal Procedure Code, we find that
The State of section 311, which is the relevant section, runs as
Hyderabad and follows : -·
Other•.
"When an order of death sentence or any other
Fa'1AliJ.
sentence has been submitted to .the High Court for
ratification
(tashih)
the Sessions Court shall, on
receiving the order of ratification or other order of the
High Court thereon, cause such order to be carried into
effect by issuing a warrant or taking such other steps
as may be necessary or expedient."
In this section also, no mention is made as to how the
sentence of death is to be executed, but in Schedule
IV of the Code, in the form prescribed for the warrant
of execution of a death sentence (Form No. 29) the
concluding sentence runs as follows : -
" ...... you shall hand over the accused ...... to the
executioner so that the latter may separate the head
from the body of the said prisoner in such a way that
his life may be extinct and that the execution of this
order may be reported to the High Court."
In the first case (Criminal Case No. 14 of 1949), the
sentence was" death by hanging," but in the other two
cases the accused were simply sentenced to death,
without any indication as to how the sentence was to
be executed. It has been argued that in view of the
provisions of the Hyderabad Criminal Procedure Code,
the sentence of death by hanging was not strictly
appropriate. But, however that may be, we find that
on the 30th October, 1949, i, e., sometime after the
pronouncement of the sentences by the Special Tribunal
and before they were confirmed by the High Court,
the Special Tribunals Regulation was amended and a
specific provision was made to the following effect:-
" 2-B. · Notwithstanding anything contained in any
law for the time being in force-
(i) arty sentence of death passed by a Special
Tribu_nal shall be carried into execution by causing
S.C.R.
SUPREME COURT kEPORTS
353
the person sentenced to be hanged by the neck until
1951
he is dead •
Janardan Reddy
(ii) warrants of commitments under sentence of
and Others ·
death, warrants of execution of a sentence of death
v.
and any other instruments issued by a Special
The State 0!
Tribunal ....... shall be issued in such form as the Special Hyd~~bad and
Tribunal thinks fit."
era.
Apparently, these provisions applied to all sentences
which had remained unexecuted or were to be executed
at the date of the amending Regulation, and therefore
they should govern the case of the petitioners also. In
our opinion, they must be taken to have retrospective
effect, because the mode of the execution of a sentence
can hardly be regarded as a matter of substantive law
or something which would affect any substantive
rights. In any event, the High Court, which upheld
the conviction, had the power to inflict the sentence of
death by hanging under the amended Regulation,
and therefore this point does not properly arise in a
matter involving the question whether any relief under
article 32 of the Constitution should be granted.
The fifth point also does not appear to us to have
much merit. The determination of this point is said to
rest upon the proper interpretation of the word
"manzuri," which is used in sections 20, 302, 307 and
309 of the Hyderabad Criminal Procedure Code.
Section 20, which is the most important section, runs
as follows :-
"Every Sessions Judge 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 ten years imprisonment or more the appropriate Bench of the High
Court,
· (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 (given manzitri),"
46
Fazl Ali J.
354
SUPREME COURT REPORTS
[1951)
1951
Section 302 (I) states that in certain cases, execution
-
of sentence shall be stayed until manzuri in accordance
Janardad 0"hReddy with section 20 is given. Section 307 deals with cases
an
t era
h
h H'
ffi
h
v.
w ere t e 1gh Court a rms a deat
sentence or a
The state of sentence of life imprisonment and provides that after
Hyderabad an4 such confirmation, the opinion of the High Court toOther.•.
gether with the file of the case shall be forwarded for
tashih (rectification or ratification) to the Government
}'azl Ali J.
within one week and the sentence shall not be carried into effect until manzuri is obtained as provided in section
20. Section 308 runs as follows:-
" When the High Court thus forwards any file for
ratification (tashih) H. E. H. the Nizam or the Government as the case may be shall be empowered
(a) to uphold the sentence of the High Court,
(b) to substitute any other penalty for the same,
(c) to set the prisoner at liberty,
(d) to make any other appropriate order."
Section 309 provides that after the manzuri is
obtained in the manner already stated, the Registrar
of the High Court shall send a copy of the order to the
Sessions Court for carrying it into effect. It will be
noticed that there are two different words used in these
sections, viz., manzuri and tashih.
M anzuri literally
means approval or acceptance, but, in the context in
which it occurs, confirmation would seem to convey
adequately the sense underlying it. Tashih means
rectification or correction, and conveys the sense that
the superior authority named in section 308 may either
uphold the sentence or revise it in the manner stated
therein.
Now, the important point to be considered is in what
way the provisions to which reference has been made,
have been affected by the Regulations issued by the
Military Governor. A reference to these Regulations
will show that in section 7 of the original Regulation,
the following words have been substituted:-
"7. (2) ......... no sentence of a Special Tribunal shall
be subject to confirmation (tausiq is the vernacular
expression used here.)
S.C.R.
SUPREME COURT 'REPORTS
355
(3) The Military Governor may'on such conditions,
11151
if any, as he thinks fit, suspend, remit, reduce, oralter J
;;;:-Redd
the nature of, any sentence passed by a Special Tribu- a';;nd 0",,_
Y
nal, or any sentence substituted by the High Court on
v.
~
an appeal under sub-section (2) for any sentence so
The state of
passed.''
Hyderabad and
It was contended by the learned Attorney-General
Other•.
that these provisions cover all those cases where manFazt Ali J.
zuri ~nd tashih were contemplated under the old law.
On the other hand, it was contended on behalf of the
petitioners that manzuri was a peculiarly apt expression when used with reference to a ruler, and the
primary sense conveyed by it was that no sentence was
a good sentence without the approval or sanction of
the monarch. A mere reference to section 20 will show
that the word manzuri has not been used with reference
only to H. E. H. the Nizam, but it has also been used
with reference to the High Court and the Government,
and therefore it is difficult to hold that the word bears
the special meaning attributed to it on behalf of the
petitioners. In the context in which it is used, it has
no other meaning than the act of confirmation, and the
new word, tausiq, which has been used in the Regulation, and which literally' means confirmation, appears
to convey the same sense as the word manzuri. It was
also contended on behalf of the petitioners that the
use of the word • hakim ' in connection with confirmation in one of the amending Regulations could not
have been intended to cover confirmation by H. E. H.
the Nizam. But since • hakim' literally means a
ruler or an authority, we are not inclined to attach
much importance to the distinction sought to be drawn
between hakim and ruler. It is quite plain that one
· of the objects of the Regulations was to simplify procedure and expedite trials, and the interpretation
which is suggested by the learned Attorney-General
seems to be in conformity with those objects;
Having dealt with these minor points, we shall now
advert to the first and second points, which appear to
us to be the only serious points urged in this case. In
urging the second point, which arises only in Criminal
356
SUPREME COURT REPORTS
[1951]
1951
Cases Nos. 17 and 18 (covered by Petitions Nos. 13
J
-;;;: Redd and 14 under article 32), it is contended on behalf of
u::~ o~er' Y the petitioners that the whole trial in these cases was
•.
bad, because the accused were denied the right of being
1'hc State of defended by a pleader. The petitions with which we
Hydemoad and are dealing, do not recite any facts to support this
Uthers.
point. There are however the following allegations
Puzl.4ti J.
made in paragraphs 2 and 4 of the affidavits filed on
behalf of the petitioners :-
"2. All this time I was not allowed to communicate
with my relations and friends.
Before I was brought
before the Special Tribunal on 3-8-49, during the trial
or afterwards I never saw any of my friends or relations, whether in the lock-up, the Court or in the jail.
due to circumstances best known to the police.
*
*
*
4. The Court never offered to facilitate my communication with my relations and friends or to adjourn
the case or to appoint counsel at State expense for my
defence. In fact they said they would not adjourn tlie
case under any circumstances. Being ignorant I did
not know that I had any right to ask for any of these
things."
In arguing this part of the case, Mr. Pritt relied on
certain American cases, especially on Powell v. Ala.
bama('). in which the Supreme Court of America is
reported to have observed as follows:-
"In a capital case where the defendant is unable to
employ counsel, and is incapable of adequately making
his own defence because of ignorance, feeblemindedness, illiteracy or the like, it is the duty of the Court
whether requested or not, to assign a counsel for him
as a necessary requisite of due process of law."
That the assignment of a counsel in the circumstances mentioned in the passage is highly desirable,
cannot be disputed. But the question raised before
us is whether in law non-assignment of a counsel would
vitiate the trial. It seems to us that in dealing with
the point, we cannot rest our judgment wholly on
\1) ~-7 u.s. 45.
S.C.R.
SUPREME COURT REPORTS
357
American precedents, wich are based on the doctrine
1951
of due process of law, which is peculiar to the Ameri- J
rda Redd
can Constitution, and also on certain specific provisions a~ /:ihers ,y
bearing, on the right of representation in a criminal
v.
proceeding. The provision which is material to the
The Stale of
contention raised before us is section 271 of the Hydera- Hyderabad and
bad Criminal Procedure Code which corresponds to
Others.
section 340 of the Indian Criminal Procedure Code,
Fazl Ali J.
which runs as follows :-
''Any person accused of an offence before a criminal
court, or against whom proceedings are instituted
under this Code in any such court, may of right be
defended by a pleader."
This provision must undoubtedly be construed
liberally in favour of the accused and must be read
along with the rules made by the High Courts and the
circular orders issued by them enjoining that where in
capital cases the accused has no means to defend
himself, a counsel should be provided to defend him.
The proper view seems to us to be: (1) that it cannot
be laid down as a. rule of law that in every capital case
where the accused is unrepresented, the trial should be
held to be vitiated ; and (2) that a court of appeal or
revision is not powerless to interfere, if it is found that
the accused was so handicapped for want of legal aid
that the proceedings against him may be said to
amount to negation of a fair trial.
Passing now to the facts of the cases before us, it
appears that in Criminal Case No. 14, the accused
persons concerned were defended by a pleader, but
those concerned in Cases Nos. 17 and 18 were not represented at all by any lawyer. Further a reference
to the docket sheets in Case No. 17 shows that the
accused in Case No. 17 were brought into court on the
3rd August, 1949, and they were informed on that
day that the case would be heard on the 6th August,
1949, and that they must get ready with their defence
lawyers and witnesses on that date. On the 6th
August, the case was adjourned because none of the
prosecution witnesses
was present and the trial
358
SUPREME COURT REPORTS
(1951]
19°1
commenced on the 7th August, i.e., next day. In Case
-
edd No. 18, an order similar to the one passed in Case No.
Ja:::;i,;h!, Y 17 was passed on the 3rd August, but the hearing was
•·
fixed for the 7th August. The docket sheets also show
2•1w State of that the trial was concluded in Case No. 17 on the 14th
Hyderabad and August and in Case No. 18 on the 13th August. As to
Othere.
the circumstances under which the accused were not
raz1 Ali J.
represented by a lawyer, we have been referred to a
counter-affidavit filed by Mr. Hanumantha Naidu, who
investigated the case, in which the following statement
occurs:-
"4. Regarding the means of accused Hanumanthu
enquiries were made by the Tribunal and it was found
that he had enough means to engage a lawyer. He
owned lands and house property. But he, however,
did not want to engage a lawyer and this is noted
in docket sheet of Criminal Case No. 14/49 by the
President of the Tribunal.
Facilities were given to
the accused to engage lawyers for their defence. In cases
in which the accused had no means to engage pleaders
for their defence and applied to the Tribunal for
appointment of pleaders at Government cost, this was
done. In some cases, the accused declined to accept the
pleaders appointed by the Tribunal for their defence.
Some engaged pleaders of their choice at their cost.
5. The allegations in para 5 of the affidavit that lawyers were afraid to come forward and defend the accused, that they were afraid of incurring the displeasure
of the police and the Administration and that they
were unwilling to appear before the Special Tribunal,
are not true. Lawyers were willing to appear and
defend the accused if they were engaged, and in Criminal Case No. 14/49, Ramireddy, Pleader, appeared
for A-4, A-7 and A-8 and conducted their defence.
Mr. Ramireddy also offered to defend the other accused, but they declined to have him and stated that
they did not want any lawyer to defend them. In
Nalgonda, there aTe about 40 practising pleaders out
of whom about half a dozen are B.A. LL.B.s well conversant with English and able to conduct cases in
English.''
S.C.R.
SUPREME COURT REPOR'fS
359
It was .contended on behalf of the petitioners that
1951
this affidavit concerns the petitioners in Case No. 14 of J<
;;;;- Rt44
1949 only, and this contention does receive some ap0':..a ;thera
11
parent support from the fact that in the earlier part of
v.
paragraph 4 reference is made to the means of one of
The state of
the accused in Case No. 14, and there is also a direct Hyderabad and
reference to that case later. But, on a careful reading
Othera.
of the affidavit as a whole, it seems to us that the affiFau Ali J.
davit was intended to cover the allegations of the petitioners in all the three cases. We also find that the
point raised before us was also urged before the High
Court when the petitioners applied for leave to appeal
against their conviction, and it was dealt with somewhat elaborately by two learned Judges in separate
judgments, and they have expressed the view that the
contention that the Tribunal did not give the accused
an adequate opportunity to engage lawyers is not wellfounded. Sripat Rao J., who delivered the leading
judgment, after dealing with the various facts, observed as follows:-
"lt was not contended before us in appeal that they
were not afforded such an opportunity by the Special
Tribunal. In fact, in Appeal No. 1385 of 1358 F .. proceedings dated 29-2-58 F., show that the High Court
also wanted them to be represented by lawyers for
which time was allowed, but on the next hearing
they stated that they do not wish to engage any lawyer
on their behalf and that the High Court need not
engage any lawyer for them. This shows that the
accused for reasons best known to themselves did not
avail of the opportunity of engaging lawyers. This was
also the case regarding appeals Nos. 1379 to 1384 of
1358 F., in which High Court's proceedings dated
29-2-59 F. show that the accused neither wanted to
engage any lawyer on their behalf nor did they wish
the High Court should engage any one for them. In
view of this, the plea that opportunity was not given to
the accused to engage lawyers and therefore the trial
was vitiated in our opinion fails."
It appears to us on the materials before us that we
cannot altogether rule out the suggestion of the High
-
360
SUPREME COURT REPORTS
[1951)
1951
Court that the curious attitude adopted by the accused,
-
·to whatever cause it may have been due, to some
Jan;:;::;;,h~;:4Y extent accounts for their not being represented by a
v.
lawyer. In the course of the arguments, our attention
The State ~f was drawn to the fact that some of the relations of
Hyderabad and the accused in the first case (Case No. 14) were present
Othe,...
at the trial, and some of the accused in that case were
--
in fact defended by a pleader, and it was contended
Fazl Ali J.
h" f
h
that t 1s act lent support to t e conclusion expressed
by the High Court, because if the accused in the first
case were not denied access to their relations and lawyers, there was no reason why the accused in the other
cases should have been denied such access. Therefore,
in the state of evidence before us, the position is hardly clear enough to justify the conclusion which the
petitioners ask us to draw in these petitions. But we
must state that throughout the arguments on this
point, we could not help feeling that the Special Tribunal should have taken some positive steps to assign a
lawyer to aid the accused in their defence.
We will now deal with the first point which relates
to the jurisdiction of the Special Tribunal by which
the accused have been tried and convicted. The general
ground urged to make good this point is that the order
made by the Civil Administrator purporting to confer
jurisdiction on the Special Tribunal to try the petitioners did not indicate with sufficient certainty that
the petitioners were the persons whose cases were to
be tried by that Tribunal, and hence there was no
proper order to enable the Tribunal to take cognizance
of the petitioners' cases. It was contended that under
the ordinary law, the cases of the petitioners would
have been placed in the first instance before a Magistrate for holding an enquiry before commitment and
thereafter they would have been tried by a Sessions
Judge. This procedure, it is argued, could have been
dispensed with only if a proper order had been made
under the Regulation by the Civil Administrator, and,
in the absence of such an order, the trial was null and
void. This point was also raised by the petitioners
in their application to the High Court for leave to
S.C.R.
SUPREME COURT REPORTS
361
appeal to this Court, and the High Court in negativing
111111
it relied on the .orders made by the Civil Administra- J
;;-Rt4d
tor in two letters produced before it, viz., (1) letter a:;~~hera !/
NJ. 3176/49-ST, slated 7th April, 1949, by which criv.
minal cases covered by charge sheets Nos. 1 to 14 were
The Btate of
ordered to be tried by the Special Tribunal at NalgonHyderabad"and
da; and (2) letter No. 4234/49-ST, dated 23rd July,
Others.
1949, by which cases covered by charge sheets Nos. 15
Fazl Ali J.
to 40 were made over to the same Tribunal for trial.
The statement made in the judgment of the High
Court is confirmed by an affidavit filed before us on
behalf of the respondents. It was contended on behalf
of the petitioners that a mere reference to the number
of the charge sheet is too vague a description to satisfy
the requirements of law and that the Civil Administrator in making over the cases should have stated the
names of the accused and other necessary particulars.
We think however that the reference to the charge
sheet numbers was in the circumstances of the case
sufficient to particularize the cases which were being
made over to the Speci!ll Tribunal, especially as the
charge sheets containerl the names of the accused as
well as other details necessary to identify the cases
made over to the Tribunal. The general argument
therefore necessarilv fails.
But, on a careful scrutiny
of the record as it stands before us, we are unable to
find any specific order of the Civil Administrator
making over the case covered by the charge sheet No.
14 dated the 20th July, 1949, to the Tribunal. It will
be recalled that there were two charge sheets numbered
14, one of which was submitted by the Investigating
Officer on the 7th April, 1949, and the other on the
20th July, 1949. The first letter of the Civil Administrator, which was written on the 7th April, 1949,
covered one of the charge sheets numbered 14 (the
earlier one), but it cannot be held to cover the second
charge sheet bearing the same number (No. 14), which
came into existence on the 20th July, 1949, i.e., nearly
3 months after that letter was despatched. The second
letter does not refer to any charge sheet numbered 14
~7
I
362
SUPREME COURT REPORTS
[1951)
tDM
Therefore the charge sheet No.