HABEEB MOHAMED PATITIONER Vs. STATE OF HYDERABAD

JUDGEMENT

(1.) The appellant before us, who in the year 1947 was a Revenue Officer in the District of Warangal within the State of Hyderabad, was brought to trial before the Special Judge of Warangal appointed under Regulation No. 10 of 1359-F., on charges of murder, attempt to murder, arson, rioting and other offences punishable under various sections of the Hyderabad Penal Code. The offences were alleged to have been committed on or about 9-12-1947 and the First Information Report was lodged, a considerable time afterwards, on 31-1-1949. On 28-8-1949 there was an order in terms of S. 3 of the Special Tribunal Regulation No. 5 of 1358-F which was in force at that time, directing the appellant to be tried by the Special Tribunal (A). The accused being a public officer, the sanction of the Military Governor was necessary to prosecute him and this sanction was given on 20-9-1949. On 13-12-1949, a new Regulation, being Regulation No. 10 of 1359-F, was passed by the Hyderabad Government which ended the Special Tribunals created under the previous Regulation on and from 16-12-1949; and consequently upon such termination provided for the appointment, power and procedure of Special Judges. Section 4 of the Regulation authorised the Chief Minister to appoint, after consulting the High Court, as many Special Judges as may from time to time be required for the purpose of S. 5 Section 5 (1) laid down that every special Judges shall try-

(2.) The present hearing of the appeal is confined to certain constitutional points which have been raised by the appellant attacking the legality of the entire trial which resulted in his conviction on the ground that the procedure for trial laid down in Regulation No. 10 of 1359-F, became void after 26-1-1950 by reason of its being in conflict with the equal protection clause embodied in Art. 14 of the Constitution. These grounds have been set forth in a separate petition filed by the appellant under Art. 32 of the Constitution and following the procedure adopted in the case of Quasim Razvi v. State of Hyderabad, A.I.R. 1953 S.C. 156 (A), we decided to hear arguments on the constitutional questions as preliminary points in the appeal itself. Whether the appeal would have to be heard further or not, would depend on the decision which we arrive at in the present hearing.

(3.) The substantial contention put forward by Mr. Peerbhoy who appeared in support of the appeal, is that as the procedure for trial prescribed by Regulation No. 10 of 1359F, deviated to a considerable extent from the normal procedure laid down by the general law and deprived the accused of substantial benefits to which otherwise he would have been entitled, the Regulation became void under Art. 13 (1) of the Constitution on and from 26-1-1950. The conviction and the sentences resulting from the procedure thus adopted must, therefore, be held illegal and inoperative and the judgment of the Special Judge as well as of the High Court should be quashed. The other point raised by the learned counsel is that the making over of the case of the appellant to the Special Judge was illegal as the authority to make over such cases was not properly delegated by the Chief Minister to the Civil Administrator in the manner contemplated by S. 5 of the Regulation.