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PETITIONER: HABEEB MOHAMED

       Vs.

RESPONDENT: THE STATE OF HYDERABAD.

DATE OF JUDGMENT: 30/03/1953

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. BHAGWATI, NATWARLAL H. SASTRI, M. PATANJALI (CJ) DAS, SUDHI RANJAN HASAN, GHULAM

CITATION:  1953 AIR  287            1953 SCR  661  CITATOR INFO :  RF         1953 SC 404  (21)  RF         1954 SC 424  (18)  F          1955 SC  13  (14)  R          1955 SC 191  (5)  F          1956 SC 269  (27)  F          1957 SC 503  (16)  R          1957 SC 877  (16)  D          1957 SC 927  (9)  F          1958 SC  86  (22)  R          1958 SC 538  (11)  RF         1958 SC 578  (211)  R          1979 SC 478  (64,68,93)  RF         1980 SC1789  (36)

ACT: Constitution of India, 1950, Arts. 13, 14-Hyderabad  Regula- tion X of 1359 F.-Trial by special judge under Regulation  X after 26th January, 1950-Provisions of Regulation  different from  Criminal Procedure Code-Equal protection of  the  law- Validity  of trial-Tests of validity -Effect of  curtailment of committal proceedings and of right to transfer, revision, confirmation of death sentence.

HEADNOTE:    In  determining  the  validity or  otherwise  of  a  pre- Constitution statute on the ground of any of its  provisions being  repugnant  to  the equal  protection  clause  of  the Constitution, two principles 86 662 have  to  be  borne in mind.  Firstly,  the  clause  bag  no retrospective  effect  and even if the law is in  any  sense discriminatory,  it  must be held to be valid for  all  past transactions and for, enforcement of rights and  liabilities accrued  before the coming into force of  the  Constitution. Secondly,   Art.  13  (1)  of  the  Constitution  does   not necessarily  make the whole statute invalid even  after  the advent  of  the Constitution.  It  invalidates  -only  those provisions  which  are  inconsistent  with  the  fundamental

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rights guaranteed under Part III of the Constitution.   Further, the fact that trial was continued even after 26th January, 1950, under the earlier Regulation which is in some respects  discriminatory  would not necessarily  render  the subsequent proceedings invalid.  All that the accused  could claim  is  that what remains of the trial must  not  deviate from  the  normal standard in material respects,  so  as  to amount  to a denial of the equal protection of  laws  within the  meaning  of  Art.  14 of  the  Constitution.   For  the purpose. of determining whether the accused was deprived  of such protection, the Court -has to see first of all  whether after  eliminating  the  discriminatory  provisions  in  the Regulation,  it was still possible to secure to the  accused substantially  the  benefits of a trial under  the  ordinary law;  and  if  so, whether that was  actually  done  in  the particular case.    On the 5th January, 1950, the case of the accused who was charged with murder, arson, rioting and other offences which was  pending  before a Special Tribunal was made over  to  a Special  Judge  in  pursuance  of  the  provisions  of   the Hyderabad  Regulation  X  of 1359 F.,  which  abolished  the Special Tribunal Regulation of 1949.  The trial commenced on the  11th  February, 1950, after the new  Constitution  came into  force and the accused was convicted and  sentenced  to death.   His appeal was dismissed and the sentence of  death was  ultimately  confirmed  by  the  High  Court.   It   was contended that the entire trial was illegal inasmuch as  the Regulation  under  which  the accused  was  tried  contained several  provisions  which were in conflict with  the  equal protection  clause (Art. 14) of the Constitution and  became void after the 26th January 1950.    Held,  (1) The provisions in the  Regulation  eliminating committal proceedings and substituting the warrant procedure for  -sessions  procedure in the trial of offences  did  not render the trial illegal as the committal proceeding was not an  indispensable preliminary to a sessions trial under  the Hyderabad Criminal Procedure Code.  (2)  On  a proper interpretation of s. 8 of the  Regulation the  right of an accused to apply for transfer of  his  case was not taken away and the right of revision was taken  away only in respect of non-appealable sentences. (3)Section 8 of the Regulation was void in so far as it took away  the provisions relating to confirmation  of  sentences but  as this part of the Regulation was severable  from  the remaining 663 portion  of  the  section the provisions  of  the  Hyderabad Criminal   Procedure  Code  relating  to   confirmation   of sentences could be followed, and those provisions did not in any  way  affect the procedure for trial laid  down  in  the Regulation.   (4)The fact that the Nizam’s consent had not been obtained could  not  vitiate the trial as such consent  is  necessary only before execution of the sentence.   Held  also,  that the delegation of the authority  of  the Chief  Minister to make over cases for trial to the  Special Judge,  by  a  general notification  authorising  all  civil administrators  of  the districts to exercise  within  their respective  jurisdictions the powers of the  Chief  Minister under  s.  5 (b) was not invalid.  Section 5  (b)  does  not require that the delegatee must be mentioned by name.   Qasim Bazvi’s case ([1953] S.C.R. 589) applied.

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JUDGMENT: CRIMINAL, APPELLATE JURISDICTION: Criminal Appeal No. 43  of 1952 and Petition No. 173 of 1952.  Appeal by Special  Leave granted by the Supreme Court on the 11th May, 1951, from the Judgment  and  Order dated the 11th December, 1950,  of  the High Court of Judicature at Hyderabad (Manohar Prasad J.) in Criminal Appeal No. 598 of 1950, and Petition under  Article 32 of the Constitution. A.   A.  Peerbhoy  (J.   B. Dadachanji, with  him)  for  the appellant. V.   Rajaram Iyer, Advocate-General of Hyderabad (R.  Ganapathy Iyer, with him) for the respondent. 1953.   March 30.  The Judgment Of PATANJALI  SASTRI  C.J., MUKHERJEA,  S.  R. DAS, and BHAGWATI JJ.  was  delivered  by MUKHERJEA  J.  GHULAM  HASAN  J  delivered  a  separate  but concurring judgment. MUKHERJEA  J.-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 X of 1359F. 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 the 9th of December,  1947,  and the First Information Report 664 was lodged, a considerable time afterwards, on 31st January, 1949.  On 28th August, 1949, there was an order in terms  of section  3 of the Special Tribunal Regulation No. V 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 20th  September,  1949.   On  13th  December,  1949,  a  new Regulation, being Regulation No. X of 1359F., was passed  by the  Hyderabad Government which ended the Special  Tribunals created  under  the  previous Regulation on  and  from  16th December, 1949 ; and consequently upon such termination pro- vided  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 section 5. Section 5(1) laid down that  every Special Judge shall try- (a) such offences of which the trial was immediately before the  16th December, 1949, pending before a Special  Tribunal deemed  to  have been dissolved on that date, and  are  made over  to him for trial by the Chief Minister or by a  person authorised by the Chief Minister in this behalf; and (b) such  offences  as are after the commencement  of  this Regulation made over to him for trial by the Chief  Minister or  by  a person authorised by the Chief  Minister  in  this behalf.   On 6th January, 1950, the case against the appellant  was made over to Dr. Lakshman Rao, a Special Judge of  Warangal, who was appointed under the above Regulation under an  order of  the  Civil Administrator, Warangal,  to  whom  authority under section 5 of the Regulation was delegated by the Chief Minister  and  on  the  same date  the  Special  Judge  took cognizance of the offences.  The trial commenced on and from 11th  February,  1950,  and  altogether  21  witnesses  were examined for the prosecution and one for                            665 the defence.  The Special, Judge, by his judgment dated  the 8th  of  May,  1950,  convicted the  appellant  of  all  the

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offences  with  which he was charged and  sentenced  him  to death  under  section  243  of  the  Hyderabad  Penal   Code (corresponding to section 302 of the Indian Penal Code)  and to  various terms of imprisonment under sections  248,  368, 282  and  124  of the Code of  Hyderabad  (which  correspond respectively to sections 307, 436,342 and 148 of the  Indian Code).   Against this judgment the appellant took an  appeal to  the  High Court of Hyderabad and the  appeal  was  first heard  by a Division Bench consisting of Shripat Rao and  S. Ali  Khan JJ.  On 29th September, 1950, the  learned  Judges delivered  differing  judgments, Shripat Rao J.  taking  the view  that the appeal should be dismissed, while  the  other learned Judge expressed the opinion that the appeal ought to be  allowed  and the accused acquitted.  The case  was  then referred to Mr. Justice Manohar Prasad, as a third Judge and by  his  judgment  dated the 11th  of  December,  1960,  the learned Judge agreed with the opinion of Shripat Rao J.  and dismissed the appeal upholding the conviction and  sentences passed  by the Special Judge.  The appellant then  presented an  application  for leave to appeal to  this  court.   That application was rejected by the High Court of Hyderabad, but special  leave to appeal was granted by this court  on  11th May,  1951, and it is on the strength of this special  leave that the appeal has come before us.  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 X of 1359F.  became  void after  the 26th of January, 1960, by reason of its being  in conflict  with  the  equal  protection  clause  embodied  in article 14 of the Constitution.  These grounds have been set forth  in a separate petition filed by the  appellant  under article  32 of the Constitution and following the  procedure adopted in the case of Qasim Razvi [Case No. 276 666 of  1951(1)],we  decided  to  hear  arguments  on  the  con- stitutional  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.  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 X  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 article 13(1) of the  Constitution on and from the 26th of January, 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 section 5 of the Regulation.  As regards the first point, it is to be noted at the  out- set  that  the impugned Regulation  was  a  pre-Constitution statute.   In determining the validity or otherwise of  such legislation  on  the ground of any of its  provisions  being repugnant  to  the equal protection clause,  two  principles would have to be borne in mind, which were enunciated by the majority  of  this court in the case of Qasim Razvi  v.  The

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State  of  Hyderabad (1), decided on the  19th  of  January, 1953, where the earlier decision in Lachman Das Kewalram  v. The   State  of  Bombay(1)  was  discussed  and   explained. Firstly,  the Constitution has no retrospective  effect  and even  if the law is in any sense discriminatory, it must  be held to be valid for all past transactions and for  enforce- ment of rights and liabilities accrued before the (1) [1953] S.C.R. 589.   (2) [1952] S.C.R. 710. 667 coming  into force of the Constitution.   Secondly,  article 13(1)  of  the Constitution does not  necessarily  make  the whole   statute  invalid  even  after  the  advent  of   the Constitution.   It invalidates only those  provisions  which are  inconsistent  with the  fundamental  rights  guaranteed under  Part  III of the Constitution.  The  statute  becomes void only to the extent of such inconsistency but  otherwise remains  valid and operative.  As was said in Qasim  Razvi’s case(1) the fact that " trial was continued even after  26th January,  1950, under the same Regulation would  not  neces- sarily render the subsequent proceedings invalid.  All  that the  accused could claim is that what remained of the  trial must  not  deviate  from the  normal  standard  in  material respects,  so  as  to  amount  to  a  denial  of  the  equal protection  of laws within the meaning of article 14 of  the Constitution.   For the purpose of determining  whether  the accused  was  deprived of such protection, we  have  to  see first  of all whether after eliminating  the  discriminatory provisions  in  the  Regulation, it was  still  possible  to secure to the accused substantially the benefits of a  trial under the ordinary law; and if so, whether that was actually done in the particular case."  As  has  been  stated  already,  the  Special  Judge  took cognizance  of  this  case on the  5th  of  January,  1950,’ which was prior to the advent of the Constitution.  It  must be  held,  therefore, that the Special  Judge  was  lawfully seized  of the case, and it is not possible to say that  the appointment of a Special Judge was in itself an  inequality. in the eye of the law.  The trial undoubtedly commenced from the  11th of February, 1950, that is to say,  subsequent  to the coming into force of the Constitution, and the  question that  requires consideration is, whether the procedure  that was actually followed by the Special Judge acting under  the impugned Regulation did give the accused the substance of  a normal trial, or, in other words, whether he had been  given a fair measure of equality in the matter of procedure ? (1)  [1953] S.C.R. 589. 668   Mr. Peerbhoy lays stress on two sets of provisions in the impugned  Regulation which, according to him,  differentiate the procedure prescribed in it from that laid down under the ordinary  law.  The first set relates to the elimination  of the  committal  proceeding and the substitution  of  warrant procedure  for  the  sessions  procedure  in  the  trial  of offences.   The  other set-of provisions consists  of  those which  deny  to  the  accused the  rights  of  revision  and transfer  and withdraw from him the safeguards  relating  to confirmation   of  sentences.   The  first  branch  of   the contention,  in our opinion, is unsustainable having  regard to  our decision in Qasim Razvi’s case(1).  It  was  pointed out in that case that under the Hyderabad Criminal Procedure Code  the  committal  proceeding,is  not  an   indispensable preliminary to a sessions trial.  Under section 267A of  the Hyderabad  Criminal Procedure Code, the Magistrate is  quite competent,  either without recording any evidence  or  after recording  only  a  portion of the evidence,  to  commit  an

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accused for trial by the sessions court if, in his  opinion, there  are  sufficient grounds for such committal.   If  the committal  proceeding  is left out of account as  not  being compulsory, and its absence did not operate to take away the jurisdiction of the Special Judge to take cognizance of  the case  before  the  Constitution, the  difference  between  a warrant  procedure prescribed by the impugned Regulation  to be  followed by the Special Judge after such cognizance  was taken  and the sessions procedure at that  stage  applicable under  the  general law is not at all substantial,  and  the minor  differences  would  not bring  the  case  within  the mischief  of article 14 of the Constitution.  This  question having  been already decided in Qasim Razvi’s case(1) it  is not open for further arguments in the present one.   With   regard  to  the  other  set  of  provisions,   the contention  of  Mr.  Peerbhoy is  based  entirely  upon  the language  of section 8 of the Regulation.  In  our  opinion, the  interpretation which the learned counsel seeks  to  put upon the section is not quite correct, (1)  [1953] S.C.R. 589. 669 and it seems to us that not only the right of an accused  to apply  for transfer of his case has not been taken  away  by this  section, but the right of revision also has been  left unaffected except to a small extent.  Section  8  of  the Regulation X of 1359 F.  is  in  these terms:-  "All  the provisions of section 7 of the  said  Regulation shall  have  effect  in relation to sentences  passed  by  a Special  Judge as if every reference in the said  Regulation to  a  Special Tribunal included a reference  to  a  Special Judge."   The  expression  "said Regulation" means  and  refers  to Regulation V of 1358 F. and section 7 of the said Regulation provides inter alia that "there shall save as here in before provided, be no appeal from any order or sentence passed  by a  Special  Tribunal, and no court shall have  authority  to revise  such order or sentence or to transfer any case  from Special  Tribunal  or have any jurisdiction of any  kind  in respect  of any proceeding before a Special Tribunal and  no sentence  of  a  Special Tribunal shall  be  subject  to  or submitted for confirmation by any authority whatsoever."  It will be noticed that what section 8 of the impugned  Regula- tion does, is to incorporate, not the whole of section 7  of the  previous  Regulation, but only such portion  of  it  as relates  to  sentences  passed  by  a  Special  Judge.    By "sentence"  is  meant  obviously  the  final  or  definitive pronouncement of the criminal court which culminates or ends in  a  sentence as opposed to an "order",  interlocutory  or otherwise, where no question of infliction’ of any  sentence is  involved.   The  scope  of  section  7  of  the  earlier Regulation is thus much wider than that of present section 8 and all the limitations of the earlier statute have not been repeated in the present one.  The result, therefore, is that revision against any order which has hot ended in a sentence is  not interdicted by the present Regulation, nor  has  the right of applying for transfer, which has no reference to  a sentence, been touched at all.  These rights are  expressly- preserved by section 10 of the present 87 670 Regulation,  which  makes the Code  of  Criminal  ’Procedure applicable  in all matters except where the  Regulation  has provided  otherwise.   Reading  section  8  of  the  present Regulation with section 7 of the earlier one, it may be held

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that  what  has been taken away from an accused is,  in  the first  place, the right of revision  against  non-appealable sentences,  and  in  the  second-  place,  -the   provisions relating  -to confirmation of sentences.  The first  one  is immaterial  for our present purpose, as no question  of  any non-appealable  sentence arises in the case before us.   The second is undoubtedly a discriminatory feature and naturally Mr. Peerbhoy has laid considerable stress upon it.  Section  20 of the Hyderabad Criminal Procedure Code  lays down  the rule relating to confirmation of sentences in  the following manner:  Every  Sessions Judge may pass any sentence authorised  by law,  but  such sentence shall not be  carried  into  effect until  (1)     in  the  case of a sentence of  10  years  ’impri- sonment or more, the appropriate Bench of the High Court; (2)  in the case of life imprisonment, the Government; and (3) in the case of death sentence, H.E.H. the Nizam,  shall  have assented thereto.  Section 302  provides  that when  a sessions court as passe a sentence of death  ’or  of life imprisonment or of imprisonment exceeding 10 years, the file  of the case shall be forwarded to the High  Court  and the execution of the sentence stayed until manjuri is  given in accordance with section 20.  Section 307 further provides that  when the High Court has affirmed a death  sentence  or sentence  of  life imprisonment, then its  opinion  together with   the  file  of  the  case  shall  be  forwarded’   for ratification  to  the  Government within one  week  and  the sentence  shall not be carried into effect until  after  the assent  thereon  of H.E.H. the Nizam in the  case  of  death sentences and of the Government in the case of 671 sentences of life imprisonment.  Mr. Peerbhoy’s complaint is that  the  sentence  imposed upon his  client  has,  in  the present case, neither been’ confirmed by the High Court, nor by  H.E.H.  the Nizam.  This, he says, is  a  discrimination which  has vitally prejudiced his client and does  afford  a ground for setting aside the sentence in its entirety.  It. admits of no dispute that section 8 of Regulation X of 1359F.  must be held to be invalid under articles 13(1)  and 14  of the Constitution to the I extent that it  takes  away the  provision relating to confirmation of sentences  as  is contained  in the Hyderabad Criminal Procedure Code.   This, however,  is  a  severable part of  the  section  and  being invalid, the provisions of the Hyderabad Criminal  Procedure Code  with regard to the confirmation of sentences  must  be followed.   Those provisions, however, do not affect in  any way  the  procedure for trial laid down in  the  Regulation. All that section 20 of the Hyderabad Criminal Procedure Code lays down is that sentences of particular description should not be executed unless assent of certain authorities to  the same  is obtained.  The proper stage, therefore, when  this, section comes into operation. is the stage of the  execution of the sentence.  The trial or conviction of the accused  is not  affected in any way by reason of the withdrawal of  the provision  relating  to  confirmation of  sentences  in  the Regulation.  The withdrawal is certainly inoperative and  in spite  of  such  withdrawal the accused can  insist  on  the rights provided ’for under the general law.  In  the case before us the records show that no  reference was  made by the Special Judge after he passed the  sentence of  death upon the appellant in the manner  contemplated  by section  307  of the Hyderabad Code,  which  corresponds  to section  374 of the Indian Criminal Procedure  Code.   There was,  however,  an appeal preferred by the accused  and  the

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entire  file  of the case came up before the High  Court  in that connection.  As said already, the Division Bench, which heard the appeal, was divided in its 672 opinion and consequently no question of confirmation of  the death  sentence could or did arise before that  Bench.   The question  was,  however,  specifically  raised  towards  the conclusion of the arguments before the third Judge, to  whom it  was  referred; and it is significant to note  that  some time  before that a Full Bench of the Hyderabad  High  Court had decided that the provision in the Regulation relating to confirmation  of  sentences  was void  and  inoperative  and consequently  in spite of the said provision  the  sentences were required to be confirmed in accordance with the general law.  The question was then raised whether the  confirmation was to be made by the third Judge alone or it had to be done by the two Judges who agreed in dismissing the appeal.   Mr. Justice  Manohar Prasad decided that as the whole  case  was referred  to him, he alone was competent to make  the  order for  confirmation of the death sentence and he did  actually confirm it by writing out in his own hand the order  passing the  sentence of death according to the provision laid  down in  the  Hyderabad Code.  Mr. Peerbhoy  contends  that  this confirmation was illegal and altogether invalid as not being made  in  conformity with the provisions  of  the  Hyderabad Code.   We do not want to express any opinion on this  point at  the  present moment.  There appears on the face  of  the record an order for confirmation of the death sentence  made by  a  Judge  of the High Court. If this  order  is  not  in conformity  with the provisions of law, the question may  be raised  before  this  court when the  appeal  comes  up  for hearing  I  on its merits.  This is, however, not  a  matter which affects the constitutional question with which only we are concerned at the present stage.  Under  section  20  of the Hyderabad  Code,  as  mentioned above,  a  death sentence could not be executed  unless  the assent  of  H.E.H.  the Nizam was  obtained.   Mr.  Peerbhoy points out that this has not been done in the present  case. To  that  the obvious reply is that consent  of  H.E.H.  the Nizam is necessary only before the sentence is executed, and that stage apparently 673 has,  not  arrived as yet.  The final judgment of  the  High Court in this case was passed on 11th December, 1950.  There was  an  application for leave to appeal  presented  by  the accused immediately after that date and this application was rejected  on  2nd January, 1951.  On the  5th  of  February, 1951,  an  application for special leave was  made  to  this court  and  the execution of the death sentence  was  stayed during  this period under orders of the High  Court  itself. The  special  leave was granted by this court on  11th  May, 1951,  and the carrying out of the death sentence  has  been stayed since then under our orders, pending the disposal  of the  appeal.   The  question  as  to  whether  any   further confirmation  by  H.E.H. the Nizam is necessary  could  only arise  if and when the death sentence passed by  the  courts below is upheld by this court.  Mr. Peerbhoy points out that since  the  1st April, 1951, the Indian  Criminal  Procedure Code has been introduced in the State of Hyderabad and there is no power in the Nizam now to confirm a sentence of death, although  such confirmation was necessary at the  time  when the  sentence-was  pronounced both by the Special  Judge  as well  as by the High Court on appeal.  We do not think  that it  is  at  all necessary for us at  the  present  stage  to discuss the effect of this change of law.  If the assent  of

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the  Nizam to the execution of a death sentence is a  matter of procedure, it may be argued that the procedural law which obtains  at  the  present moment is the  proper  law  to  be applied.   On  the  other  hand, if it  was  a  question  of substantive right, it may be open to contention that the law which governed the parties at the date when the trial  began is  still applicable.  We are, however, not called  upon  to express  any  opinion  on this  point  and  we  deliberately decline to do so.  We also do not express any opinion as  to whether  the  rights which could be exercised by  the  Nizam under  section 20 of the Hyderabad Criminal  Procedure  Code were  appurtenant to his prerogative as a sovereign or  were statutory rights exercisable by the person designated in the statute.  These matters 674 may be considered when the appeal comes up for final hearing on  the merits.  Our conclusion is that there has  not  been any  discrimination  in matters of procedure  in  this  case which   can   be  said  to,  have  affected  f   the   trial prejudicially  against  the accused and the accused  is  not entitled  to ’have his conviction and sentence set aside  on that ground.   The  other  question raised by the appellant  relates  to delegation  of the authority by the Chief Minister  to  make over  cases  for trial by the Special Judge.   Mr.  Peerbhoy lays ’stress on section 5 (b) of the Regulation which speaks of offences being " made over to the Special Judge for trial by the Chief Minister or by a person authorised by the chief Minister  in  this  behalf ", and it  is  argued  that  this section  requires that the delegatee is to be  mentioned  by name.  What the Chief Minister has done is that he issued  a notification  authorising  all civil administrators  of  the districts to exercise within their respective  jurisdictions the  powers  of the Chief Minister under the  said  section. This, it is argued, is not in compliance with the provisions of  the section.  We do not think there is any substance  in this  contention.  The delegates can certainly be  described by  reference to his official designation and the  authority may  be vested in the holder of a particular office for  the time  being.   This,  we  think,  is  quite  a  proper   and convenient   way   of  delegating  the  powers   which   are exercisable  by  the Chief Minister.  In  our  opinion,  the constitutional  points  raised by Mr.  Peerbhoy  fail.   The application  under  article 32 of the Constitution  is  thus rejected and the case is directed to be posted in the  usual course for being heard on its merits.  GHULAM  HASAN  J.-I  concur in the order  proposed  by  my learned  brother  Mr. Justice Mukherjea  that  the  petition under  article  32 of the Constitution be dismissed,  but  I deem  it necessary to make a few observations in view of  my dissenting judgment in Qasim Razvi’s case(1).  The  majority judgment  delivered  by Mr. Justice Mukherjea on  the.  19th January, 1953, in (1)  [1952] S-C-R, 710. 675 Qasim  Razvi’s  case(1) while interpreting the  decision  in Lachmandas  Kewalram Ahuja v. The State of  Bombay(1)  laid, down  the  principle  that the mere fact that  some  of  the provisions of the impugned Regulation are discriminatory  on the  face of it, is not sufficient to render the  trial  and the  conviction void under article 14, read with article  13 (1)  of  the Constitution and that in such cases  where  the trial  is continued after the 26th January, 1950, under  the impugned  Regulation,  it is necessary to  see  whether  the procedure  followed  after  the material date  was  such  as

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deprived the accused of the equal protection of laws  within the  meaning of article 14 of the Constitution and  that  if the accused under such procedure received substantially  the benefits of the trial under the ordinary law, the trial  and conviction  cannot be held as void and illegal.  I  take  it that the majority decision is binding and that the principle enunciated  by the majority is no longer open  to  question. With this preliminary observation I must proceed to  express my  concurrence generally with the view taken by my  learned brother Mr. Justice Mukherjea in the present case.  It  is  to be borne in mind that Regulation V of  1358  F. under  which  the  Tribunal was  constituted  to  try  Qasim Razvi’s  case  was  in  material  respects  different   from Regulation X of 1359 F. under which the Special Judge  tried the  petitioner Habeeb Mohammad.  I agree with  my  learned brother in holding that there was no flaw in making over the case of the petitioner for trial to the Special Judge  under section  5  (b) of the Regulation.  The Special  Judge  took cognizance  of  the case before the Constitution  came  into force,  but the entire evidence of the  prosecution,  unlike Qasim Razvi’s case, was recorded after the 26th of  January, 1950.   The Regulation in question was challenged before  us as  being void under article 14 read with article  13(1)  of the Constitution on the  following grounds:- (1) [1953] S.C.R. 589.   (2) [1933] S.C.R. 589. 676 (1)  that the Regulation excludes the committal proceedings, (2)  that the procedure of the sessions trial is replaced by the warrant procedure, (3)  that there is no right of transfer, (4)  that there is no revision, (5)  that the right of confirmation by the Nizam in case of sentences of death has been negatived.   As regards the first two grounds, Mr. Justice  Mukherjea, following  the view taken in Qasim Razvi’s case(1) has  held that under section 267A ’of the Hyderabad Criminal Procedure Code committal proceedings are not compulsory and that there is  no substantial difference , between the  sessions  trial and  the  warrant  procedure  which  was  followed  in   the petitioner’s case.  These two grounds of attack there.  fore disappear.   So  far  as  grounds  Nos.  (3)  and  (4)   are concerned,  I  agree  with  Mr.  Justice  Mukherjea  in  his interpretation  of section 8 of the Regulation and  hold  in concurrence  with  the view taken by him that the  right  to apply  for  transfer has not been taken away  and  that  the right  of  revision has been denied only in so far  as  non- appealable  sentences are concerned.  The present is a  case of  murder and other serious offences which are  undoubtedly all appealable.  The  only  discriminatory feature of the  Regulation  left therefore is that no sentence of a Special Tribunal shall be subject  to or submitted for confirmation by  any  authority whatsoever  contained  in section 7 (2) of Regulation  V  of 1358F which is made applicable,under section 8 of Regulation X of 1359 F., in other words, that the right of the Nizam to confirm the death sentence has been taken away.  This is un- questionably  a valuable right available to the accused  who is  sentenced  to death by the Sessions Judge  or  the  High Court  as  the case may be.  We were told by  Mr.  Peerbhoy, counsel for the petitioner, that no death sentence passed by the’ courts in Hyderabad during the last 50 years or go  has ever been carried into effect and that the Nizam has  always exercised (1)  [1953] S.C.R. 589, 677

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this  right in favour of commuting the death  sentence  to.a sentence  for  life.   The  denial  of  this  right  in  the Regulation is discriminatory on the face of it and  deprives the  petitioner  of a valuable right.  I  concede,  however, that  this  objectionable  feature  of  the  Regulation   is severable  from the other parts.  I further agree  that  the stage for the exercise of that right has not yet arisen, for the appeal of the petitioner is still pending in this court. If  the  appeal is allowed, or the sentence is  reduced,  no question  of the confirmation of the death sentence  by  the Nizam will arise.  If, however, the appeal is dismissed,  it will  be  open to the petitioner to claim  this  right.   It would  not be desirable at this stage to express an  opinion whether this right is a substantive right which vests in the petitioner or one relating to a more matter of procedure, as that  question will have to be considered and  decided  when the appropriate stage arrives.  I would, therefore, agree in dismissing the petition.                                Petition dismissed. Agent for the petitioner: Bajinder Narain. Agent for the respondent : G. H. Rajadhyaksha.