WAHEED HASAN KHAN Vs. STATE OF HYDERABAD

JUDGEMENT

(1.) THIS reference to a larger Bench under Section 10 (2), Hyderabad High Court Act calls for the determination of the following questions:

(2.) A few facts leading to the present reference may be mentioned. Twenty-two persons including the petitioner Wahid Hasan Khan were charge-sheeted on 20-12-1950 before the Special Magistrate for offences falling under Sections 330, 243, 77b of the Hyderabad Penal Code and Sections 9 and 10/14 of the Hyderabad Arms Regulation and Rule 37 of the Defence of Hyderabad Rules. The accused taking advantage of Section 267a of the Hyderabad Code requested the Court to commit the case without holding any inquiry. The Special Magistrate acceded to the request and committed the case to the Sessions Court, Medak, by his order dated 8-1-1951. Proceedings commenced before the Additional Sessions Judge on 18-1-1951 but were adjourned from time to time for receipt of property, production of evidence, for appointment of Public Prosecutor and disposal of bail application. In the meantime, due to the extension of the Indian Criminal P. C. in Part B States, the Sessions Court doubted as to the continuance of its Jurisdiction to try the case and kept it pending for orders of the High Court. The case was eventually transferred by this Court to the Hyderabad District. The trial commenced there on 28-11-1951 in accordance with the provisions of Section 271 of the Indian Criminal P. C. Pour assessors were empanelled and the prosecution evidence was examined and cross-examined. When the two prosecution witnesses had still to be examined, an application was made on 13-2-1953, to recall all of them once again for further cross-examination under Section 267a of the Hyderabad Code. In supported case of Syed Mohammed v. The State of Hyderabad C. No. 853 of 1951 (A ). In which a Bench of this Court of which I was a member, had held that the right of further cross-examination conferred by Section 267a, Hyderabad Cr. P. C. was a substantive right and was not affected by the repeal of the Hyderabad Law. The learned Additional Sessions Judge refused to take into consideration the authority cited before him on the ground that the case had not been reported and only an uncertified copy of the judgment was produced for his perusal. Apart from that, he further held that as the Indian Criminal P. O. dealt with matters of procedure, it would apply to all pending proceedings with retrospective effect and that in any event further cross-examination would unnecessarily delay the proceedings which had already been pending since long.

(3.) AGGRIEVED by this order, the petitioner moved 'the High Court, in the exercise of its revisions jurisdiction. The Division Bench which in the first instance heard the petition, referred it to a Full Bench as in the opinion of the learned Judges, constituting it, the case involved some important questions of law. The Pull Bench doubted the correctness of the case, which was relied on before the learned Sessions Judge, as the Judges who decided that case had failed to consider the effect Of Section 25, Indian Criminal P. C. (Amendment Act) and also for the reason that the right of further cross-examination under Section 267a of the repealed Hyderabad Code was a procedural right and it did not enure for the benefit of the accused in view of the fact that the trial commenced after the enforcement of the Indian Criminal P. O. Hence, this reference to the larger Bench with the three questions as stated above.