PAILWAN ABDUL KHADER Vs. STATE OF MYSORE

JUDGEMENT

(1.) These are applns. filed under Article 226, Constitution of India, for issue of writs of certiorari calling for records & quashing the proceedings in Crim, case Nos. 1 & 2 of 1948. 49 on the file of the Ct. of the Sp. J, Tumhur & writs in the nature of habeas corpus directing the release of petnrs. from detention. The two cases referred to arise out of disturbances which occurred on 1-3-1949 in the shandy of Sira, a Town in Tumkur District, from a clash between Hindus & Masaalmans resulting in the death of a Jamedar, grievous hurt to a Police Inspector & injuries to others. It is alleged in the affidavits filed in support of the petns. that charge sheets for offences under Sections 302, 326, etc., I. P. C., were presented on 9-4-1949 in the Ct. of the Sp. First. Clasa Mag, Madhugiri, by the Police against the petnrs. that by a Notn dated 22 4-1949, the Govt. of Mysore constituted the Ct. of the Special J. Tumkur, under Section 2 of the Sp. Criminal Courts Act, 1942 (Act XXIV [24] of 1942), that the cases against the petnrs were sent to that Ct. on 16-4-1949 & that the Sp. J. Tumkur, following the procedure laid down by Section 5 of the Act tried the said cases as warrant cases. The cases before the Sp. J. ended on 5-10-1949 with petnrs 1 & 2 in crim. petn. No. 69 of 1950-51 being sentenced to death for the murder of the Jamedar & rigorous imprisonment for causing grievous hart to the Inspector; Petnr. 3 to transportation for life for the same murder & to R. I. for grievous hurt to the Inspector. The patnrs. In the other cases ace sentenced to varying terms of imprisonment. The grounds on which the writs are sought are that the entire proceedings before the Sp J. are void & of no effect, that the Special Criminal Courts Act, by prescribing a procedure contrary to that provided in Criminal P. C. has prejudicially affected the fundamental rights the petnrs. are entitled to under Part III of the Constitution of India & that the peturs are also deprived of many valuable rights which they had under the Criminal P. C. by vir'ue of the Notn. of the Govt. The conviction & sentences passed by the Sp. J are challenged as illegal & as being no better than those of a private person without authority. These petns. were filed just before a day fixed for review ot the sentences by the learned Chief Justice of Mys )re appointed for the purpose under Section 7 of the Act. At the request of the petnrs' counsel, the proceedings of review were stayed till the disposal of these pesos. & the petns. were first heard by a D. B. Consequent on a reference by the D. B. the petns. were posted before the P. B. & arguments were addressed on behalf of all the petnrs by Sri Jayarama lyer & Janab Askar Ali of the Madras Bar in the course of which they pressed for consideration a number of important points bearing on these cases.

(2.) The Special Criminal Courts Act, Act XXIV [24] of 1942, was enaoted on 7-7-1942. It was made applicable to Tumkur District within which the petnrs are alleged to have committed the offences by a Notn. issued under Clause (3) of Section 1 so far back as 5-11-1912, so that it is clear that on the date of the commission of the alleged offences the Act was in existence; but the appointment of a Sp. J. under Section 3 & the direction undef Section 4 of the Act that he should try these cases were made by the Govt. subsequent to 9-4-1949 when the charge sheets were filed in the Ct. of the Sp. First Class Mag., Madbugiri.

(3.) Without reference to the merits of the cases the arguments were directed to show that the Act & proceedings thereunder considered either independently of or with due regard to the provisions of the Constitution of India are invalid & to this end these were attacked from every conceivable angle.