S M NATHANIEL Vs. STATE

JUDGEMENT

(1.) THE appellants in the above appeals were accused 1 to 4 in case No. 10 of 1948 at the first criminal sessions of this Court in the year 1948. All the four appellants were found guilty by a majority of the jury of the offence of conspiracy to murder the late Dr. Habibulla, The appellants in criminal Appeal No. 183 of 1948 were found also guilty of murdering him, while the appellants in criminal Appeal Nos. 188 and 182 of 1948 were found guilty abetting the murder. The majority verdicts of the jury were accepted by Bell J. who tried the case, and they were sentenced to death. The appeals were pro-ferred under Section 411a, Criminal P. C. , which bad been added to the Code by Act xxvi [26] of 1948, with the leave of the appellate Court on matters of law and fact. The appeals came up for hearing before Horwill and Govinda Menon JJ. The learned Public Prosecutor raised a preliminary objection that the appeals were not maintainable, because Act xxvi [26] of 1913 was invalid as being ultra vires of the Central Legislature, which had enacted it. As the learned Judges felc that it was desirable that the preliminary objection should be considered by a Full Bench, the papers were placed before me, and this Full Bench was constituted to hear the preliminary objection. At the hearing before us, the learned Advocate General appeared on behalf of the Provincial Government and argued in support of the preliminary objection.

(2.) BEFORE the passing of Act xxvi of 1943, the provisions of law relating to the conviction and sentence or acquittal by the High Court at ita criminal sessions were as follows: Under Clause 26, Letters Patent, there was no appeal to the High Court from any sentence or order passed or made in any criminal trial before the Courts of original criminal jurisdiction which may be constituted by one or more Judges of the said Court. But it was in the discretion of any such Court to reserve any point or points of law for the opinion of the High Court. When such-point or points of law were be reserved, or, if it was certified by the Advocate-General that, in his judgment, there was an error in the decision of a point or points of law decided by the Court of original criminal jurisdiction or that a point or points of law which has or have been decided by the said Court Should be further considered, the High Court bad full power and authority to review the ease, or 3uch part of it as may be necessary, and finally deter, mine such points or points of law, and thereupon to alter the sentence passed by the Court of original jurisdiction, and to pass Such judgment and sentence as may seem fit. The Criminal Procedure Code did not contain any provision conferring a right of appeal from a sentence or order passed by the High Court in exercise of its original jurisdiction except in cases specified in Section 449 which ran thus: (1) Where:

(3.) THE legislative powers of the Central and Provincial Legislatures are contained in the provisions of part 5, Government of India Act, 1935. Section 99 (1) declares that the Federal Legislature (corresponding to the Central Legislature) may make laws for the whole or any part of British India, and a Provincial Legislature may make laws for the Province or any part thereof. The subjects with respect to which these two Legislatures have power to make laws are in-dioated in Section 100 which runs thus: