March 16.

SUPREME COURT REPORTS

JANARDAN REDDY AND OTHERS

[1951]

THE STA TE OF HYDERABAD AND OTHERS.

KULLURI YELLADU AND OTHERS

THE STATE OF HYDERABAD AND OTHERS.

MUNGALA SAMUEL AND OTHERS

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, 1950- App!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

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 Otoos.

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 bn subordinate to the Supreme Court;

(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 investi- The 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.

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.

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

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 pro- The 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 fire- Fazl 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 obtan 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.

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.

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 sub- Others. sequent decisions of the Privy Council in Abdul Rah- Fazl 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,

1951 offence of murder, all that is stated is that death is one of - the penalties. That section does not state how the sen- Jana.: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),"

Fazl Ali J.

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 to-

Other.•. 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.)

(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 Tribua';; 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 man- Fazt 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

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::~ oer' 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.

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

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 ap-

0':..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 affi- Fau 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

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

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 Nalgon- Hyderabad"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

tDM Therefore the charge sheet No. 14 of the 20th July,

- edd which we will for the sake of brevity describe as 14 (2), Ja~;.h!. Y is not covered by any written order made by the Civil a v.

Administrator. Prima jacie, therefore, there is room The State of for the argument that Case No. 17, which is affected Hyderabad a.a by this charge sheet LNo. 14 (2)], was never properly

0 "'"•· made over to the Tribunal and the trial of the accused Fail Ali J. in that case was therefore without jurisdiction.

In the course of the arguments, the learned Attorney- General referred to the affidavit of Mr. Hanumantha Naidu, in which it is stated that that case also was transferred by the Civil Administrator to the Tribunal for trial, and he was also prepared to file an affidavit by the Civil Administrator himself to show that the case had been validly transferred to the Tribunal. It is unfortunate that this point was neither raised nor investigated in the appeal to the High Court, but has to be dealt with in this Court merely upon affidavits, many of which are not properly drafted or sworn. In these circumstances, we would have been inclined to pursue the matter by further investigation had we felt that such a course would serve any useful purpose, but we think it unnecessary to do so, as we find that there are.certain insuperable obstacles in the way of our granting the petitioners any relief under article 32.

Article 32 (2) provides that "the Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the -rights conferred by this Part (Part III)." The power given to this Court under this provision is a large one, but it has to be exercised in accordance with well established principles. The writs to which reference has been made 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. In the petitions before us, the petitioners have made the following relevant prayers:-

"(1) that this Court may issue a writ in the nature 1951 of certiorari or a direction or order directed to res- J rda-Redd pondents Nos. 1 and 3 (the Government of Hyderabad a:':m !:thers v and the Special Judge, Nalgonda) calling upon them v. to produce the records before it and to show cause The state of why the convictions and sentences of the petitioners Hyderabad and should not be quashed; Others.

(2) that this Court may issue a writ of prohibition Fau Alo J. or a direction or order directed to respondents Nos. 1 and 2 (the Government of Hyderabad and the Superintendent of the Jail) requiring them not to execute the petitioners." At a late stage of the hearing of the case., an application was made on behalf of the petitioners to allow them to amend their petition so as to include a further prayer for a writ of habeas corpus, and this was done.

The question to be decided now is whether any of these prayers can be granted. The writs of certiorari and prohibition are hardly appropriate remedies in this case, because they are usually directed to an inferior court, but at the date when the High Court dealt with these cases and confirmed the convictions and sentences of the petitioners, this Court was not in existence, and at that point of time, by no stretch of reasoning, the High Court can be said to have been subordinate to this Court. The prayer for the issue of a writ of habeas corpus is however said to stand clear of this difficulty, on the ground that the detention of the ti tioners would be illegal from day to day, if it is held

to be based on an order made without jurisdiction which is therefore liable to be ignored as a nullity.

The matter is however not so simple as it may appear at the first sight. There is a long line of cases relating to the habeas corpus writs, in which it has been held that when the return states that the party who is alleged to be unlawfully detained, is detained in execution of a sentence on indictment on a criminal charge, the return cannot be controverted. [See R. v. Suddis (1), Carus Wilson's case (2), Ex parte Lees (3)] In some

(1) llAJli 1 East 30~.

(~I (1815) 7 Q. B. 984. (3\ (18'8) E. B. & E. s; s.

1961 cases, however, the question arose as to whether affidarda-Rt.dd vits would be admissible to show that there was no J•::i ;;.h.,.• Y jurisdiction in the court by which the prisoner was con-

,. victed. On this point, there are three cases in which it The state of was held that such an affidavit would be admissible.

Hyderabad and The most important of these cases is In re Authers (1),

ou..r.. on which very great rfliance has been placed by Mr.

Fzl Ali J.

Pritt. In that case, the manager of a club was convicted under. a certain statute of selling beer by retail without having _an excise retail licence. Subsequently, he was convided of selling intoxicating liquor, viz., beer, without a licence under another statute. Upon the hearing of the latter charge, the magistrate treated it as a second offence, and imposed the full penalty authorized in the case of'"the second offence" by the latter statute. His appeal to the Quarter Sessions having been dismissed, he applied for a writ of habeas corpus, and it was granted by the Queen's Bench Division on the ground that the Magistrate could not treat the later offence as a second offence, because it was not a second offence under the Act under which he was convicted for the second time. Hawkins J. in dealing with the case observed as follows:-

"! have had many doubts whether it was competent for us to go behind a conviction which had not been quashed upon certiorari or by any other process of law; but I have satisfied myself that we can go behind this conviction upon affidavits. There are two authorities, in the Queen's Bench and Exchequer respectively, which seem to be conclusive. They were two cases of prosecution of workmen for neglecting their duty to their employers, and in each of them there was a summary conviction; upon the argument of a rule for a writ of habeas corpus it was allowed to be proved by affidavits that the men were, as a fact, not in that particular employment, and, therefore, not subject to the jurisdiction of the justices, the ground of admission of the affidavits being that there was no evidence before the justices to justify a conviction. So, in the present case, the Court is at liberty to go behind the

\I) (1899} 22 Q. B. D. 316 al BW.

conviction and to receive affidavits, it not being a case 1951 of conflicting testimony, but oe n which th~ magi.st- Jana,;;;: RWdy

rate had found a prev10us conv1chon, when, m pomt and Others of fact, there was none. For these reasons, I think that v. the prisoner is entitled to be discharged." The State of Referring to the appeal of the prisoner to the Quar- Hyd::::!.O:. and ter Sessions, the learned Judge observed:-

"This is true as a fact, but it puts the prosecution Fa.z AU J. in no better position, for if the magistrate had no power to give himself jurisdiction by finding that there had been a first offence where there had been none, the justices could not give it to him."

In his judgment, the learned Judge did not refer to the previous precedents on which he relied, but it has been generally assumed that he intended to refer to In re Bailey (1), and In re Baker (2).

As against these cases,_ there are a number of cases in which a different view has been taken and which cannot be easily reconciled with them. The leading case on the other side of the line is In re Newton (3), where it was held that "the Queen's Bench Division had no power to grant p. habeas corpus to bring up a prisoner who had been convicted at the Central Criminal Court, on the ground that the offence charged was committed at a place out of the jurisdiction of that court," In dealing with the case, Jervis C. J. observed as follows:- ' 'The question raised in this case is undoubtedly one of very great importance. No authority has been found to warrant it. The point, it would seem, therefore, has never before been raised,-it may be because it is so plain that there is nothing in it. The state of things is this: Mr. Newton has been tried and convicted on an indictment alleging that the offence charged was committed within the jurisdiction of the Central Criminal Court. Either that was traversed, or the jurisdiction was admitted by pleading over. If it were traversed, the finding of the jury is that the prisoner committed the offence within the jurisdiction of the

(I) 3 E & 8. 607.

(2) 2 H. & N. ~19.

18) 1:19 R. R. ~9~.

1951 court, as alleged. He now seeks to impeach that finding,

..ia Redd on the ground that the place where the offence was

' 0 ".:'rn1 thm Y actually committed is more than one thousand yards

•. distant from the boundary of the parish in which the The State of record alleges it to have been committed. That is not Hyd<robad arnl to be governed by the inquiry whether the fact be in-

Others, disputable or otherwise. If we could entertain the

b'azl Ali J. application because the boundary is clearly ascertained, we should be equally bound to entertain disputes of the most refined and minute character. The inconvenience of this is manifest. The truth is that the remedy is not by an application of this sort."

Another learned Judge agreeing with the view of the Chief Justice, observed as follows:-

"Ordinarily upon criminal trials, the jurisdiction of the court over the place where the offence is alleged to have been committed is assumed. And here, no doubt, the trial proceeded upon the assumption that Beulah Spa was within the jurisdiction of the Central Criminal Court. Whether it was so or not was as much a matter of fact to be proved (or admitted) as any other fact alleged in the indictment, in order to establish the conviction." The view expressed in this case has been taken in several other cases also, and in Greene v. Secretary of State for Home Affairs (1), Viscount Maugham seems to have thrown the weight of his authority in favour of that view. A Bench of the Calcutta High Court has also supported that view in In re Bonomally Gupta(').

The trend of decisions thus seems to be in favour of the view that if it should appear on the face of the return that a person is in detention in execution of a sentence on indictment on a criminal charge, that would be a sufficient answer to an application for a writ of habeas corpus. Assuming, however, that it is open even in such cases to investigate the question of jurisdiction, as was held in In re Auth.ers (') it appears to us that the learned judges who

(1) [19,~J A. C, 284. (~I I, L. R. 44 Cal, 7~8.

(8) 11889) 2~ Q, B. n. 845.

decided that case went too far in holding 1951 that notwithstanding the fact that the conviction.,, ;;-- and sentence had been upheld on appeal by a court of a':t h!:ddy competent jurisdiction, the mere fact that the trial v. court had acted without jurisdiction would justify The State of interference, treating the appellate order also as a Hyderabad and nullity. Evidently, the appellate tourt in a case which Others. properly comes before it on appeal, is fully competent Fa:i; u J. to decide whether the trial was with or without jurisdiction, and it has jurisdiction to decide the matter rightly as well as wrongly. If it affirms the conviction and thereby decides wrongly that the trial court had the jurisdiction to try and convict, it cannot be said to have acted without jurisdiction, and its order cannot be treated as a nullity. It is true that there is no such thing as the principle of constructive res judicata in a criminal case, but there is such a principle as finality of judgments, which applies to criminal as well as civil cases and is implicit in every system, wherein provisions are to be found for correcting errors in appeal or in revision.

Section. 4.30;< Criminal Procedure Code, and section 355 of t~~, Hyderabad Criminal Procedure Code, have given e, lfpress recognition to this principle of finality by providing that " Judgments and orders passed by an Appellate Court

upon appeal shall be final, except in cases provided for in section 417 and Chapter XXXll."

It is well settled that if a court acts without jurisdic. tion, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i. e., an appeal would lie to the court to which it would lie if its order was with jurisdiction. (See Ranjit Misser v. Ramudar Singh (1); Bandiram M ookerjeev. Purna Chandra Ro~ (2); W ajuddi Pramanik

v. Md. Balaki Moral (3); andKalipada Karmorkar v.

Sekher Bashini Dasya(4)]. Therefore, the High Court at Hyderabad had jurisdiction to hear and decide the appeal in this case. In view of this fact, the deprivation of life or liberty, upon which the case of the

(I) (1911) 16 O. L.1. 77.

(9) I. L. R. 45 0 .. 1. 926 Of 929,

(S) 80 O. W. N. 68 ,., 64.

(4) 114 O. L. J, !198,

1961 petitioners is founded, has been brought about in - accordance with a procedure established by law, and

Jm;;:.ida;; h:,~Y their present detention cannot be held to be invalid.

There is also another difficulty in the way of the The State of petitioners which may be briefly stated. From the Hyderabad and facts already narrated, it should be clear that the

Others. judgment of the High Court affirming the convictions

Fnzl Ali J. and sentences of the petitioners had acquired finality in the fullest sense of the term before the 26th January,

1950, and by reason of this finality, no one could question the validity of the convictions at the date when the Constitution came into force. Can then a new law or a change in the old law entitle us to reopen a transaction which has become closed and final? It is common ground that the provisions of the Constitution which are invoked here, were not intended to operate retrospectively, and therefore something which was legally good on the 25th January, 1950, cannot be held to have become bad on the 26th January, 1950.

If we had no jurisdiction to sit in appeal over the judgment of thi! Hyderabad High Court, can we now reinvestigate the cases and pails orders which cannot be passed without virtually setting aside the judgments of the High Court which have become final. Can we, in other words, do indirectly what we refused to do directly? It is argued that we are asked not to reopen a past transaction but to deal with the present detention of the petitioners, i. e., their detention at this moment. But, how can we hold the present detention to be invalid, unless we reopen what could not be reopened prior to the 26th January, 1950. This is, in our opinion, one of the greatest difficulties which the petitioners have to face, and it rests not merely on technical grounds but on sound legal principles which have always been, and should be, respected.

The learned counsel for the petitioners tried to make much of the fact th,.at the petitioners had lost their right to appeal 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 Judicial Committee of Hyderabad. That may be unfortunate,

but there can be no justification for widening the scope 19°1 of the existing remedial laws beyond legitimate J ;;;;; Ridel bounds. A similar argument was addressed in Ex a:~ oherB Y parte Lees(1), and Lord Campbell C. J. met it with these v. observations :- The State of " It is alleged on the part of the prisoner that the Hyderabad and , , Mp roceedings were upon a repealed statute, and that there were errors in the judgment and hardships Fazl Ali J. and irregularities in the proceedings. If such allegations are well-founded, and obstacles are found to prevent any remedy by appeal to the Privy Council, or by writ of error to this Court, we apprehend that -the advisers of the Crown will take the matter into ·

their consideration, and form their judgment with respect to any alleged error, wrong or hardship which may be brought before them; and, if any such be established to their satisfaction, will advise the Crown to give the relief to which they may think the applicant entitled, by pardon or mitigation of punishment. We have no authority to interfere." All that we can say is that the petitioners accused in Criminal Case No. 17 of 1949 have made out a Prima facie case that there was no specific order of the Civil Administrator directing the case to be tried by a Special Tribunal and they have shown that in that case one of the three members of the Tribunal gave a dissenting judgment which is more favourable to the accused than the majority judgment. While the facts were being analysed before us, it was brought to our notice that there were altogether six accused in Case No. 17, out of which five have been convicted and sentenced to death in Case No. 18 also. The remaining accused, Kallur Gowndla Elladu, is thus the only person to be affected by the arguments relating to the trial being without jurisdiction, and a further point in his favour is that the fatal blow on which the charge of murder is based, is not attributed to him but to another person and no definite overt acts are ascribed to him. We have no doubt that these facts will receive

(1) (18iiB) E; B. &. E, 828,

1951 due consideration at the hands of the executive -R.,,., authorities.

Janardan ~...,, A h . , 1 d , h 't' f , 1 and others s t e pomts 1nvo ve m t e petI ions or spec1a v. leave to appeal to this Court against the order of the The Stat• of High Court refusing to grant relief under article 226 of Hyderabad and the Constitution are the same as those involved in the

0~· petitions under article 32, all the six petitions are Fau Ali J. dismissed. It may however be observed that in this case we have not considered it necessary to decide whether an application under article 32 is maintainable after a similar application under article 226 is dismissed by theHigh Court, and we reserve our opinion

_19~1

l.tareh 19.

.on that .question.

Petitions dismissed.·

Agent for the petitioners: I. N. Shroff.

Agent for the respondents: P. A. Mehta.

RAM DHAN LAL AND OTHERS.

RADHE SHAM AND OTHERS [SAIYID FAZL ALI, MUKHERJEA and

(HANDRASEKHARA AIYAR JJ.)

Bengal Alluvion and Diluvion Regulation (Xl of 1825), ss. 2, 4 -Custom of dhar dhura-Incidents-River changing course s11ddenly-River flowing entirely outside the villages which it divided- Whether custom applies-On"s of proof-Reasonableness of custom -Application of Regulation XI-Revival of dhar dhura rights.

The meaning of the custom of dhar dhura is that the deep stream or channel of a river is to be regarded, irrespective of its changes, as the constant boundary between two or more villages, and such a custom is expressly recognised in s. 2 of Regulation XI of 1825.

Whether such custom applies even to cases of sudden changes in the course of a stream or only to gradual alluvial action is a matter which has to be determined upon the evidence adduced in each case. The onus of proving that the custom applies to sudden changes also is on the person who sets it up, but such custom is not unreasonable and can be established like any other

JANARDAN REDDY AND OTHERS

THE STATE OF HYDERABAD AND OTHERS

SAIYID FAzL Au. MEHR CHAND MAHAJAN

MUKHERJEA

DAS

HANDRASEKHARA AIYAR JJ.

Constitution of India

Art. 32

Special Tribunals Regulation

ss. 2, 7

Art. 32

Art. 32

Art. 32

Art. 32

Hyderabad

High Court of Hyderabad

Art. 32

Section 7(2)

H.E. H. the Nizam

s. 271

Hyderabad High Court

Art. 32

26th January,

1950

Supreme Court

Art. 32

Hyderabad Court

Janardan Reddy

High Court at Hyderabad

26th January, 1950

Judicial Committee of Hyderabad

Art. 32

Art. 226

Carus Wilson

Art. 32

Art. 136(1)

19th December, 1950

High Court of Judicature at Hyderabad

M. Khaliluzzaman Siddiqi

D. N. Pritt

Dattial Latifi

Gopal Singh

Janardan Reddy M.C. Setalvad

G.N. Joshi

FAZL Au

30th October, 1948

H. E. H. the Nizam

22nd May, 1949

10th July, 1949

23rd July and 30th October,

Section 8

Nalgonda district

Hanumantha

Fazl Ali

Naidu

Janaman R

7th April, 1949

Fazl Ali

21st September, 1948

6th April, 1949

Madireddychelka

Kasthala village

Kankayya

Natala Rama Reddy

Constitution of India

article 134

article 136

India

article 226

article 32

article 226

Pritt

section 234

1.anardan Reddy

article 32

Penal Code

section 243

Hyderabad Criminal Procedure Code

section 311

Schedule IV of the Code

30th October, 1949

article 32

sections 20, 302, 307 and 309

Section 20

Section 302

section 20

Section 307

azl Ali

section

20

Section 308

Section 309

section 308

section 7

section 20

article 32

Supreme Court of America

s. 45

section 271

section 340

3rd August, 1949

6th August,

1949

14th

Hyderabad

Ali

Hanumantha Naidu

Hanumanthu

Ramireddy

Ramireddy

Sripat Rao

20th July, 1949

Fail Ali

article 32

Article 32

Government of Hyderabad

Special Judge, Nalgonda

Fau Alo

s.

1961

Fzl Ali

Hawkins

Jervis

Newton

Beulah Spa

Central Criminal Court

Viscount Maugham

Calcutta High Court

Bonomally Gupta

Criminal Procedure Code

section 355

Hyderabad Criminal Procedure Code

section 417

Fnzl Ali

25th January, 1950

Campbell

State of "

Kallur Gowndla Elladu

Janardan

article 226

article 32

Fau Ali

article 32

article 226

I. N. Shroff

P. A. Mehta

RAM DHAN LAL

RADHE SHAM

SAIYID FAZL ALI

Bengal Alluvion and Diluvion Regulation

ss. 2, 4

s. 2


SUPREME COURT REPORTS [1951)

1951 due consideration at the hands of the executive -R.,,., authorities.

Janardan ~...,, A h . , 1 d , h 't' f , 1 and others s t e pomts 1nvo ve m t e petI ions or spec1a v. leave to appeal to this Court against the order of the The Stat• of High Court refusing to grant relief under article 226 of Hyderabad and the Constitution are the same as those involved in the

0~· petitions under article 32, all the six petitions are Fau Ali J. dismissed. It may however be observed that in this case we have not considered it necessary to decide whether an application under article 32 is maintainable after a similar application under article 226 is dismissed by theHigh Court, and we reserve our opinion

_19~1

l.tareh 19.

.on that .question.

Petitions dismissed.·

Agent for the petitioners: I. N. Shroff.

Agent for the respondents: P. A. Mehta.

RAM DHAN LAL AND OTHERS.

RADHE SHAM AND OTHERS [SAIYID FAZL ALI, MUKHERJEA and

(HANDRASEKHARA AIYAR JJ.)

Bengal Alluvion and Diluvion Regulation (Xl of 1825), ss. 2, 4 -Custom of dhar dhura-Incidents-River changing course s11ddenly-River flowing entirely outside the villages which it divided- Whether custom applies-On"s of proof-Reasonableness of custom -Application of Regulation XI-Revival of dhar dhura rights.

The meaning of the custom of dhar dhura is that the deep stream or channel of a river is to be regarded, irrespective of its changes, as the constant boundary between two or more villages, and such a custom is expressly recognised in s. 2 of Regulation XI of 1825.

Whether such custom applies even to cases of sudden changes in the course of a stream or only to gradual alluvial action is a matter which has to be determined upon the evidence adduced in each case. The onus of proving that the custom applies to sudden changes also is on the person who sets it up, but such custom is not unreasonable and can be established like any other

custom by cogent evidence. (Their Lordships upheld the finding lfi5I of the High Court that under the custom prevailing in the villages in question it was applicable also to cases of the stream suddenly Ram Dhan Lal altering its course.) and Other a As the custom of dhar dhura implies that the deep stream v. of the river irrespective of the changes in its course, is to be Radhe Sham regarded as a fixed boundary line between two or more villages, and Othera. it is necessary for the application of this custom that the main stream of the river must flow within the limits of these villages.

When the river changes its course so widely that it oversteps the boundaries of the villages concerned and ceases to divide these villages, the rights of the riparian properties can be determined only in accordance with the provisions of Regulation XI of 1825.

Obiter. Though a riparian owner cannot claim a land under the custom of dhar dhura so long as the river flows outside the limits of the villages concerned, his rights under the custom would revive as soon as the river again flows within the villages.

CIVIL APPELLATE

JURISDICTION: Appeal (Civil Appeal No. 41 of 1949) against the judgment and decree of the Allahabad High Court (Allsop and VermaJJ.) dated 8th September, 1942, in First Appeal No. 473 of 1936, arising out of the decree of the Civil Judge, Bareilly, dated 30th September, 1936, in Original Suit No. 18 of 1934.

Walter Dutt (P. S. Sajeer, with him) for the appellants.

P.L. Banerjee (Baleshwar Prasad, with him) for the respondents.

1951. March 19. The judgment of the Court was delivered by

MuKHERJEA J .-This appeal is directed against an Mukherjoa J. appellate judgment of a Division Bench of the Allahabad High Court dated September 8, 1942, by which the learned Judges reversed a decree made in favour of the plaintiff by the qvil Judge of Bareilly in Original Suit No. 18 of 1934 and dismissed the suit as against defendants 1 to 4.

The suit out of which the appeal arises, was commenced by one Babu Ram as plaintiff and it was for

1951 a declaration that the lands in suit appertained to a -. 1 village named Sikha situated in Tehsil Aonla within Ra":.an:;:;.:;• the district of Bare illy, of which the plain tiff was the a v.

Zemindar and Lambardar, and that the defendants had

llad./w Sham no right or title to the same. There was a claim for and others. recovery of possession in case the plaintiff was found

M ukherjta J. to have been dispossessed from the whole or a portion of the disputed lands with an ancillary prayer for mesne profits. The original plaintiff died sometime after the plaint was filed and the suit was continued by his two sons, who were brought on the record as his heirs and successors. There were as many as 41 persons impleaded as parties defendants to the suit and they were alleged to have proprietory interest in two contiguous villages named Jhawa Nagla and Gurganwan which lie to the south and east of village Sikha.

The allegations as they appear in the plaint, in substance, are that the river Ram Ganga flowed to. the south and east of mouza Sikha belonging to the plaintiff and according to the custom of Dhar Dhura or deep stream boundary prevalent in the locality, the main channel of the river constitutes the indisputable, though fluctuating, boundary line between village

Sikha on one side and villages Jhawa Nagla and Gurganwan on the other.

Up to Fasli year 1340 the course of the river, it is said, changed several times and the Zemindars of the three villages were deriving gains and suffering losses of land on account of these alluvial and diluvial changes. In the Fasli year 1340, the Dhar or main stream of the river was at the place marked C, D, E and F in the map attached to the plaint and the plaintiff. as Zemindar of village Sikha, possessed a tract of land shown on the map to which the dispute now relates and which was situated to the north-west of the stream and stretched on the northern and western side up to the limits of villages Sisauna, Hazipur and Sheopuri. In the year 1341 the river suddenly changed its course and leaving its old bed altogether began to flow entirely outside the limits of the three villages mentioned above, The "dabri" or the old bed of the river as it stood in the year 1340

has been shown in the plaint map and constit_utes, 1951 according to the plaintiffs, the line of demarcation bet- R - L ween Sikha on one side and the tw? villages Jhawa ::a_~~~:. al Nagla and Gurganwan on the other. It is alleged by the v. plaintiff that the custom of Dhar Dhura could not Rooke Sham create any title in the defendants, who are the proand Othera. prietors of villages Jhawa Nagla and Gurganwan, to the disputed plot, which is to the north and west of Mukherjea J. the main current of the river as it fl.owed in the year

1340, as the custom applies only when the change in the deep stream is gradual and not sudden and it cannot have any possible application when the river leaves the three villages altogether and ceases to flow within them as has happened in the present case. The different proprietors therefore should be allowed, according to the plaintiff, to hold and possess as appertaining to their Zemindary the lands which were in their respective possession in the year 1340; and in law and. equity the disputed property should remain in possession of the plaintiff as owner of mouza Sikha.

As the defendants were threatening to interfere with the plaintiff's possession in collusion with the Patwari of the villages, the present suit was instituted.

Out of the 41 defendants, written statements were filed by 9 only. Two .of them again admitted the plaintiffs' claim and pleaded that they were made parties to the suit unnecessarily. The suit was really contested by defendants 1 to 4 and 30 and they resisted the plaintiffs' claim on a number of grounds, most of which are immaterial for our present purpose. The substantial case made by the contesting defendants was that the custom of Dhar Dhura applied to every sort of change in the deep stream of the river irrespective of the fu.ct whether the change was gradual or sudden, or whether the river flowed within or outside the villages; and as the river had receded to the north, the defendants were according to this custom entitled to the lands which had been joined to the lands of their villages up to the main channel of the river. It was asserted that the "dabri" or the old bed of the

1951 river could not be treated as the demarcating line bet-

Ram -;,::n Lal ween the three villages.

and Others Thus. the existence of the custom of Dhar Dhura "· was affirmed by both the parties. The difference betliadh• Sham ween them was as regards the extent of the custom.

and Others. • ff According to the plainti s, the custom was restricted Mukherjea J. in its operation to gradual accretion and did not extend to cases where old formations were suddenly severed by fluvial action without destroying their identity or preventing recognition of the land so removed. The second point raised by the plaintiffs was that the custom could not apply when the main stream had shifted entirely beyond the villages between which it was to form the boundary line.

On the first point the decision of the trial court was adverse to the plaintiffs, but on the other point the court decided in their favour.

The result was that the plaintiffs' claim was allowed and a decree was passed in accordance. with. the prayers made in the plaint.

Against this decision the defendants 1 to 4 took an appeal to the High Court of Allahabad. The appeal was heard by a Division Bench consisting of Allsop and Verma JJ. who allowed the appeal to this extent that the plaintiffs' claim was dismissed as against defendants Nos. 1 to 4 who had filed the appeal, though as regards the rest of the defendants the decision of the trial iudge was kept intact. It is against this judgment that the plaintiffs got leave to appeal to the

Privy Council and the appeal has now come up for hearing by this court. It has been brought to our notice that of the two plaintiffs who filed the appeal, one has since then compromised the suit with the contesting defendants and the appeal is being prosecuted before us on behalf of plaintiff No. 1 alone.

The learned Counsel appearing in support of the appeal has pressed for our consideration both the two points which were put forward in support of the plaintiff's case in the courts below. It has been contended in the first place that the evidence adduced in this case does not establish the custom of Dhar Dhura in

such extreme form as would create a change of owner. 1951 ship even when there is transfer of lands by a sudden R Dha Lal change in the course of the deep stream. It is urged :':a Oth".... that even if such a custom is proved to exist, it should v. be held to be unreasonable and hence unenforceable Radhe Sham in law. The other contention raised is that in any and Others. view there is no scope for application of the.custom m h . h d h Mukherjea J. the present case w ere the nver as oversteppe t e limits of the three villages and has ceased to be the dividing line between them.

As regards the first point, it seems to us that on the facts admitted and proved, it is not possible for us to take a view different from that taken by both the Courts below. The meaning of the custom Dhar Dhura is that the deep stream or channel of a river is to be regard- 6d. irrespective of its changes, as the constant boundary between two or more villages; Such custom is expressly recognised in section 2 of Regulation XI of 1825 which lays down that "whenever any clear and definite usage ...... may have been immemorially established for determining the rights of the proprietors of two or more contiguous estates divided by river (such as that the main channel of the river dividing the estates shall be the constant boundary between them whatever changes may take place in the course of the river, by encroachment on one side and accession on the other), the usage so established shall govern the decision of all claims and disputes relating to alluvial lands between the parties." That such custom prevails in the locality is proved by the "Wazibularz'' prepared at the last settlement of Monza Sikha and the custom is there recorded as follows:-

"The river Ram Ganga flows on the boundary line of thiS village. The custom of Dhar Dhura prevails between this village andGurganwan, Jhawa Naglaand Rakhara, Pa:rgana Aenla. If any piece of land is included in the area of this village on account of the alluvial action of the river, we the Zemindars shall be the owners thereof and if any piece of land of this village is washed away, it shall be owned and possessed by the Zemindars of the village wherein it appears in the

1951 same way in which we were in possession thereof." The

8 ;;;:: Lal record thus speaks of change by alluvial action of the :'::a 0,;:.,., river. It does not say whether such alluvial action v. should be gradual or sudden; by itself, therefore, it Badh• Sham does not indicate with precision the ambit of the right and Others. that is connoted by the custom. This is a matter which

Mukhet"jea J. has got tq be determined upon the evidence adduced by the parties and the onus of proof is undoubtedly on the person who sets up a custom at variance with the general law. We are in agreement with the view expressed by Oldfield J. in Sibt Ali v. Muniruddin (1) that the court should "scrutinise with care evidence in regard to a custom which would have the effect of passing from one owner to another land long held and enjoyed and of which the character is in no way altered by river action"; but if cogent and satisfactory evidence is "forthcoming, there is no reason why the existence of such custom could not be established like any other fact. Apart from the oral evidence that has been adduced in this case there are two Rubkaris of the Col!ectorate and one judgment by a Civil Court to all of which the predecessors of the parties to the present litigation were parties and they show clearly that demarcation of the lands of the three villages has always been made with reference to the position of the deep stream of the river at dfferent times and it was regarded as immaterial whether the change in the stream happened gradually or all on a sudden. From the Rubkari (Ex. H. 27) it appears that in 1283 Fasli the river suddenly altered its course and cut away not only the vacant accretion to Sikha but also a part of the mouza as it existed at the date of settlement. The land thus cut off was treated as an increment to Jhawa Nagla and Gurganwan and fresh settlement was made with the Zemindars of these villages. It is stated by the Assistant Collector of Barei!ly in this Rubkari that the existence of the custom was proved by careful local investigation and it was to the effect that the bed of the river should always be held to be the boundary and that it should

tll I. J;.. R. 6 All. 479 ot 481,

be so held whether the river suddenly altered its 1951 course or gradually encroached on any mouza. The - Peshkar, who was deputed to make an enquiry, quoted Ra•;.,,, V~Lal a number of instances where the river altered its a v. • course both ways within the last 30 years prior to Radke Sham this date. This Rubkari, it is to be noted, is dated and OIM.ra. the 8th November, 1876. Ex. D-1 is a judgment of the Subordinate Judge of Bareilly dated the 29th of MukherJ•a J.

July, 1907, and it was passed in a suit instituted by the proprietor of mouza Sikha against the owner of Jhawa Nagla. The que!i_tion raised was whether a quantity of land appertaining to mouza Sikha which was detached by a sudden change in the course of the river and thrown on the Jhawa N agla village could be claimed by the plaintiff. The answer was given in the negative, and the decision was based entirely upon the custom of Dhar Dhura which was held to be applicable even when the change was sudden. These documents furnish clear proof of the custom being held applicable to cases of the river suddenly altering its course and cutting off blocks of land from villages situated on one or other side of its channel. In the face of this clear and definite proof of the usage, we are unable to say that the decision of the courts below on this point is wrong. lt is urged by the learned counsel for the appellants that such custom is unreasonable and should for that reason be held to be unenforceable in law. It cannot be denied that the application of the deep stream rule might work injustice in certain cases as the gan or loss of property is made to depend upon accidental and uncertain phenomena or mere caprice of nature; but on the other hand the custom affords a convenient and effective way of avoiding boundary disputes which might otherwise be a fruitful source of strifeand contention between riparian proprietors. A custom must not certainly be against reason, but the reason referred to here is not to be understood as meaning every unlearned man's reason but artificial and legal reason warranted by authority of law (1). It is sufficient if

(1) Vide Coke on Littleton 62 (a.),

1951 no good legal reason can be assigned against it.

Pre-

R Dil4 Lal vention of quarrels and disputes between contiguous Oth".,.. villages and estates is certainly an object beneficial to v. the community and judged by this test, the custom of

Radhe Sham Dhar Dhura cannot be held to be unreasonable. It may

and Others. be pointed out in this connection that in some hape or other this deep stream rule has been recognised in Mukherjea J. J . ndia from very early times as a convenient mode of settling boundary disputes and Brihaspati, the Hindu Smriti writer, enunciates the rule in almost id_i:ntical terms which has been referred to in the writings of later commentators as pointed out by Lal Mohan Doss in his Tagore Law Lectures on the Law of Riparian Rights ('). The first contention of the appellant, therefore, cannot be accepted.

The other contention put forward by the appellant raises the question as to whether the custom of Dhar Dhura could have any application to the facts of the present case where the river is not flowing within the villages at all.

On this point, we think that the correct view has been taken by the learned Subordinate Judge and the reasons and the conclusion of the High Court upon it do not appear to us to be sound.

If, as the custom of Dhar Dhura implies, the deep stream of a river irrespective of the changes in its course, is to be regarded as a fixed boundary line between two or more villages, it is absolutely necessary that the main stream of the river must flow within the limits of these villages. It is only for the purpose of determining the boundary between certain villages and estates that the custom of Dhar Dhura can be invoked; and unless the river actually divides the villages or estates, there can be no question of its being regarded as a boundary line between them and in such

circumtances the deep stream rule cannot possibly have any meaning. A custom which defeats or has no relevancy to the very object for which it came into existence cannot under any circumstance be regarded as valid. We are not satisfied also that the evidence

11) Ville Doss on the Law of Riparian Righs p. 178

in the record establishes the existence of such custom I9n at all.

Section 2 of Regulation XI of 1825 makes it Ram Dfw.m Tm perfectly clear that a custom contrary to the provisions and otheY• of the Regulation would be enforceable only when it is v. a custom for determining the rights of proprietors of RadheShain two or more contiguous estates divided by the river-. and OtlierB.

When the river ceases to divide the estates, the rights Mtik'-J•a .J. of the riparian proprietors can be determined only in accordance with the provisions made in the Regulation itself. It has been argued by Mr. Banerjee, appearing for the respo11dents. that a55uming that the custom of Dhar Dhura could not be invoked by the defendants when the river had receded beyond the limits of mouza Sikha, still the plaintiff in order to succeed in the suit must have to show how he acquired title to the tract of land lying to the north and west of the "dabri" or the old water course, which is the subject matter of the claim in the present suit. The answer to this argument would clearly be that when the main current of the river was at the place where the "dabri" .stands at present, the entire stretch of land lying to the north west of the main.stream came to the plaintiff under the custom of Dhar Dhura. In the year 1341 Fasli the river suddenly changed its course and as it shifted t0 the north and west beyond the limits of mouza Sikha, the custom of Dhar Dhura would no longer govern the rights of the parties and the .title to the plot of land, which is the subject matter of dispute, must be determined ip. accordance with the provisions of the Regulation itself. As the change in the course of the river was sudden and not gradual and the character and identity of the land hav~ remained intact, the plaintiff would clearly be entitled to possess the land on the strength of his original title as provided for in section 4, clause (2), of Regulation XI of 1825. In our opinion, therefore, the decision of the learned Judges of the High Court .on this point is not correct and should be reversed.

Mr. Banerjee argues further that even if his clients cannot claim the disputed land under the custom of Dhar Dhura so long as the river fiC1ws outside the limits

1051 of the village, their rights under the custom should

Ram Doon LU r.evve as soon as. the rive~ come~ .down within the

amt other. limits of mouza S1kha. This position certainly has v. got to be admitted but as we are concerned with the Radh' Sham state of affair£ existing at the date of the institution of and Other•. the suit and there is no evidence on the record as to the position of the river at the present moment, the J1.ukherjea J,

AJ>Til 9.

plaintiff will be entitled to a decree in the form as it was given by the trial judge, it being clearly understood that the rights declared in this suit would be subject to the custom of Dhrtr Dhura which the defendants may invoke if and when the proper occasion arises.

Subject to this observation, we allow the appeal and restore the judgment of the trial judge.

The plaintiff No. I wiJI be entitled to his costs.

Appeal allowed.

Agent for the appellants: R. S. Narula.

Agent for the respondents : Tarachand Brijmohan Lal.

THE UNITED COMMERCIAL BANK LTD. v.

THEIR WORKMEN

(and other cases)

UNION OF INDIA-Intervener.

[SHRI HARILAL KANIA C.J ., SA!YID FAZL Au,

PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA: S.R. DAS and VIVIAN BOSE JJ.J

Industrial Disputes Act (XTV of 1947), ss. 7, 8, 12, 16-Rules under the Act, R. 5-Constitution of Tribunal of three membcrs- Absence of one of three members on other duty-Absent member rejoining after some time-Validity of awards made during his absence by the two remaining members, and by all of them after he rejoined-Construction and effect of ss. 7, 8, 12 and Rule ~.

The Central Government constituted an Industrial Tribunal under the Industrial Disputes Act, 1947, consisting of A, B, and C

Janardan

article 226

article 32

all the six petitions are Fau Ali J.

article 32

article 226

I. N. Shroff

P. A. Mehta

RAM DHAN LAL AND OTHERS

RADHE SHAM AND OTHERS

MUKHERJEA

HANDRASEKHARA AIYAR JJ.

Bengal Alluvion and Diluvion Regulation

ss. 2, 4

s. 2

Allahabad High Court

Allsop

VermaJJ

Civil Judge, Bareilly

Walter Dutt

P. S. Sajeer

P.L. Banerjee

Baleshwar Prasad

MuKHERJEA

Mukherjoa

Babu Ram

M ukherjta

Jhawa Nagla

Gurganwan

Sikha

Dhar Dhura

Sisauna

Hazipur

Sheopuri

Jhawa

Mukherjea

mouza Sikha

High Court of Allahabad

Verma

Radhe Sham

section 2

Monza Sikha

andGurganwan

Mukhet"jea

Oldfield

Barei!ly

Peshkar

Radke Sham

8th November, 1876

Subordinate Judge of Bareilly

Radhe Sham Dhar Dhura

Brihaspati

Lal Mohan Doss

Ville Doss

Section 2

Banerjee

section 4

R. S. Narula

Tarachand Brijmohan Lal

UNITED COMMERCIAL BANK LTD

THEIR WORKMEN

UNION OF INDIA

HARILAL KANIA

SA!YID FAZL Au

PATANJALI SASTRI

MEHR CHAND MAHAJAN

S.R. DAS

VIVIAN BOSE

Industrial Disputes Act

ss. 7, 8, 12, 16

ss. 7, 8, 12