BHASKARA PILLAI Vs. STATE

JUDGEMENT

(1.) THESE are two applications for leave to appeal to the supreme Court against the judgment of this court in Criminal Appeals 192 and 193 of 1124. The petitioner in Crl. M. P. 67 was the appellant in Criminal appeal No. 192 and the petitioner in Crl. M. P. 68, the appellant in Criminal appeal 193. They were accused 1 and 2 respectively in Sessions Case No. 20 of 1124 on the file of the Alleppey Sessions Court. The main charge against them was one of murder. The case was that on the night of 18. 12. 1122 they strangled one Damodaran to death while asleep by tying a rope round his neck and tightening the noose by pulling the two ends of the rope in opposite directions. His dead body was afterwards secretly disposed of by depositing the same in the depths of the Vembanad lake, close to the 2nd accused's residence. At the conclusion of the trial the learned Sessions Judge found both the accused guilty of the said offence and sentenced each of them to undergo rigorous imprisonment for life. According to the law in Travancore a sentence of imprisonment for life passed by a Sessions Judge has to be submitted for confirmation by the High Court. The reference for confirmation and the appeals preferred by the accused against their conviction and sentence came up for hearing before a Division Bench consisting of the present Chief Justice and myself. The case was heard for two days, 13th and 14th February and when the hearing concluded, His Lordship the Chief Justice delivered the judgment of the court extempore confirming the conviction and sentence passed by the learned sessions Judge. Ten days later, on 24. 2. 1950 these petitions were filed to obtain certificates under Arts. 132 (1) and 134 (1) (c) of the Constitution of india to prefer appeals to the Supreme Court. The grounds taken in these applications for leave are mainly two and they are, to state briefly, (1) that the Bench which heard and disposed of the appeals was not properly constituted and was therefore incompetent to hear or decide the case and (2) that on the merits the decision confirming the conviction and sentence is wrong and unsustainable in law. Notice was duly given to the State on these applications and at the hearing before the present Bench the learned Advocate General for the State appeared and opposed these applications. The petitioners were represented by Mr. K. G. Kunjukrishna Pillai and Mr. N. Padmanabha Panicker. The applications before us set out the first ground of objection to the validity of the judgment of this Court in the following terms: "their Lordships who constituted the Bench that heard and decided this case have no right or competency to pronounce a judgment in law. A Judge of the High Court whose appointment is in contravention of the provisions contained in enactments such as, Indian Constitution Act, Travancore public Service Commission Ordinance and Indian Public Service Commission Act, is incompetent in law to pronounce judgment in this case".

(2.) AT the hearing it was urged on behalf of the petitioners that the Chief Justice's appointment was made in such disregard of statutory provisions as to make that appointment ineffectual in law and that as a consequence thereof a Bench consisting of the learned Chief Justice and another judge had no jurisdiction to exercise the powers conferred upon a Bench of this Court by the Travancore-Cochin High Court Act, 1125. The petitioners contended that the Chief Justice's appointment contravened the provisions of sub-s. (5) of S. 3 of the Travancore-Cochin Public Service Commission ordinance, 1124 (read with the Travancore-Cochin Public Service Commission (Continuance) Act, 1950 which makes the Chairman and other members of the public Service Commission ineligible for further employment under the government of the Travancore-Cochin State and the provisions of S. 9 (1) of the high Court Act, which according to them, fix an age limit of sixty for persons to be chosen for appointment as judges of the High Court.

(3.) THE second point raised by the learned Advocate general was that in appointing the present Chief justice to the office which his Lordship now holds there was no contravention of sub-s. (5) of S. 3 of the public Service Commission Ordinance or of S. 9 of the Travancore-Cochin High court Act. It was said that sub-s. 5 of S. 3 of the Public Service Commission ordinance only made the Chairman and other members of the Public Service commission ineligible for further employment under the Government of travancore-Cochin State and that a judgeship of Tavancore-Cochin High Court was not employment under the Government of Travancore-Cochin State. I may make it clear that his contention was raised not with reference to the state of things that have come into existence after 26th January 1950. THE argument was that under S. 9 (1) of the High Court Act it was the Raj Pramukh that had to make the appointment and that the present Chief Justice was so appointed. THE Advocate general's contention was that it is only an employment under the Government of travancore-Cochin State and not an appointment by the Raj Pramukh that is prohibited under the said sub section. THE petitioner's reply was that the Raj pramukh appoints judges of the High Court as the head of the State and such appointment will constitute employment under the Government of travancore-Cochin State within the meaning of sub-s. (5), S. 3 of the Public service Commission Ordinance.