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PETITIONER: SYED QASIM RAZVI

       Vs.

RESPONDENT: THE STATE OF HYDERABAD AND OTHERS(and other cases)

DATE OF JUDGMENT: 19/01/1953

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. HASAN, GHULAM SASTRI, M. PATANJALI (CJ) AIYAR, N. CHANDRASEKHARA BOSE, VIVIAN

CITATION:  1953 AIR  156            1953 SCR  589  CITATOR INFO :  F          1953 SC 287  (4)  RF         1953 SC 394  (6)  RF         1953 SC 404  (21)  RF         1954 SC 424  (18)  F          1955 SC  13  (14)  R          1955 SC 191  (5)  R          1956 SC  60  (13)  F          1956 SC 269  (27)  F          1957 SC 397  (43)  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)  D          1959 SC 149  (9,45,46)  E&D        1959 SC 609  (27)  R          1961 SC1245  (11,13,22)  RF         1961 SC1457  (13)  RF         1962 SC  92  (6)  R          1979 SC 478  (64,68,93)  RF         1980 SC1382  (105)

ACT: Constitution of India, 1950, arts. 13,14,21-Special Tribunal Regulation  (V of 1358-F, Hyderabad)-Trial under  Regulation commenced  before 26th January, 1950-Trial  continued  after that   date-Validity   of   conviction-Regulation,   whether discriminatory  and  void-Question  whether   discriminatory provisions were applied in fact after 26th January,  whether relevant.

HEADNOTE: The Military Governor of the Hyderabad State promulgated  on October  30, 1948, a Regulation called the Special  Tribunal Regulation,V  of 1358 Fasli, under which a Special  Tribunal was constituted consisting of three members appointed by the Military   Governor.   The  Regulation  provided  that   the Military  Governor may, by general or special order,  direct

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that  any  offence or class of offences should be  tried  by such Tribunal, and the procedure for trial laid down in  the Regulation  differed  from the provisions of  the  Hyderabad Criminal  Procedure  Code  in  the  following  mate.   trial particulars  among others, viz., the Tribunal had  power  to take cognisance of offences without committal, there was  no pro.  vision for trial with jury or assessors, the  language of the Tribunal was to be English, only a memorandum of  the evidence  need be taken, there was no provision for de  novo trial on change of personnel, and there was no provision for transfer,revision  or confirmation of sentences.  The  cases against  the  petitioners, who were  charged  with  rioting, dacoity,  arson  and other offences, were,  directed  to  be tried  by  the  Special Tribunal on October  6,  1949.   The accused  were convicted in September, 1950, and the  convic- tion on’ some of the charges was upheld by the High Court on appeal in April, 1951.  The accused appealed to the  Supreme Court and also applied under art. 32 of the Constitution  of India  for  quashing the orders of the High Court,  and  the Special  Tribunal  on the ground that the  Special  Tribunal Regulation  became  void on the 26th January, 1950,  as  its provisions   contravened   articles  14  and   21   of   the Constitution  which  came into force on that date,  and  the continuation of the trial and conviction of the  petitioners after that date was illegal : Held,  per  PATANJALI SASTRI C.J.,  MUKHERJEA  and  CHANDRA- SEKHARA  AIYAR JJ. (BOSE and GHULAM HASAN JJ. dissenting)  - (i) Article 13 of the Constitution have had no retrospective effect and, even 77 590 though  some  of the provisions of the  impugned  Regulation contravened art. 14, the Regulation must be held to be valid for  all  past  transactions and for  enforcing  rights  and liabilities  accrued before the advent of the  Constitution, and  on  this  principle  the order  made  by  the  Military Governor referring the cases to the Special Tribunal  cannot be  impeached,  and the Special Tribunal must be  deemed  to have  taken  cognisance  of  the  cases  properly  and   its proceedings  up  to the date of the coming in  of  the  Con- stitution must be regarded as valid., (ii) In  a case like this where part of the trial could  not be  challenged  as  bad, it is incumbent  on  the  court  to consider,  first, whether the discriminatory  provisions  of law could be separated from the rest and even without them a fair measure of equality in the matter of procedure could be secured  to the accused and secondly, whether the  procedure actually   followed  did  or  did  not  proceed   upon   the discriminatory provisions.  A more threat or possibility  of unequal  treatment  is  not  sufficient  to  invalidate  the subsequent proceedings. (iii)     On  the  facts the accused had  substantially  the benefit  of a normal trial, though there were deviations  in certain  particulars and the conviction of  the  petitioners could  not be set aside merely because the  Constitution  of India came into force before the completion of their trial.    BOSE J.-(i) Under Art. 13 (1) of the Constitution a trial cannot  be legally Continued after the Constitution  on  the basis  of a law which offends the fundamental provisions  of the Constitution and therefore which, though good when made, would  have  been  bad  if it  had  been  passed  after  the Constitution, because the most vital part of a trial is  its conclusion and therefore a conviction after the Constitution based  on  matter,  or as a result of  procedure,  which  is abhorrent  to  the Constitution would be bad.  This  is  not

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giving,retrospective effect to the Constitution because  the conviction  in  such a case is after  the  Constitution  and would  be  based  on matter which  offends  its  fundamental guarantees. (ii) In  testing the validity of a law it is  irrelevant  to consider  what has been done under it, for a law  is  either constitutional  or not and its validity or otherwise  cannot depend on what has been accomplished under its provisions. (iii)     The provisions of the Special Tribunal  Regulation which  confer  an  unfettered  discretion  on  the  Military Governor to direct any case or cases to the Tribunal without laying  down any basis for classification of the cases,  the absence  of  committal proceedings, the deprivation  of  the rights  of  revision and transfer and of the right to  a  de novo  trial,  the right of the Tribunal to adopt  a  summary procedure,  and in particular the elimination of  the  Urudu language which is the Court language of Hyderabad and of the right  to have sentences confirmed, are  all  discriminatory provisions;  most  of these provisions cannot  be  separated from the 591 good  portions  of  the Regulation.   The  whole  Regulation therefore became void on the 26th of January, 1950, end  the trial  of the petitioners after that date was under  a  void law;there  was  also discrimination in fact after  the  @6th January  as the proceedings were conducted in  English  even after  that  date.  The conviction of  the  petitioners  was consequently illegal. GHULAM   HASAN  J.-The  discriminatory  provisions  of   the Regulation  stood in the way of the petitioners  even  after the  26th January, 1960, and prevented them from  exercising their right to apply for bail, for transfer or for  revision and   this  was  quite  sufficient  for  holding  that   the Regulation  violated  art. 14 and was therefore  void  under art. 13.  The question whether the discriminatory provisions were  in  fact applied to the petitioners’ cases  after  the 26th  January,  1950, was  irrelevant.   The  discriminatory provisions are not severable from the rest of the Regulation and  the trial held under the Regulation was therefore  void under  art. 13 read with arts. 14 and 21 and the  conviction of the petitioners was illegal. Anwar Ali Sarkar v. The State of West Bengal ([1952)  S.C.R. 284),  Lachmandas  Kewalram  Ahuja v. The  State  of  Bombay ([1952] S.C.R. 710) explained and distinguished.

JUDGMENT: ORIGINAL  JURISDICTION.  Petitions Nos. 172 and 368 of  1952 under  Art.  32 of the Constitution.  Cases Nos.  276,  277, 278, 279 and 280 of 1951, being appeals under Arts. 132  (1) and  134 of the Constitution from the Judgment and Order  of the  13th  April,  1951,  of the  Hyderabad  High  Court  in Criminal Appeals Nos. 1449 and 1453 of 1950 were also  heard along with these petitions. A.A.  Peerbhoy  and  J B. Dadachanji  for  the  petitioners- appellants. V.   Rajaram  lyer,  Advocate-General of  Hyderabad  (K.S.R. Chari, with him) for the respondent (I State of Hyderabad). 1953.   January 19.  The Judgment of Patanjali Sastri C.  J. and Mukherjea and Chandrasekhara Aiyar JJ. was delivered  by Mukherjea  J.  Vivian Bose and Ghulam  Hasan  JJ.  delivered separate judgments. (Petition No. 172 of 1952 and Case No. 276 of 1961). MUKHERJEA J.-Syed Qasim Razvi, the appellant in this appeal,

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was one of the accused in what is, 592 known as the Bibinagar dacoity case which took place  within the  State  of  Hyderabad and in  which,  according  to  the prosecution,  a  serious raid was committed by  a  party  of armed Razakars in village Bibinagar, about 21 miles from the city  of Hyderabad, attended with robbery,  looting,  arson, assault  and  other violent acts on the  afternoon  of  10th January,  1948.  The First Information Report was lodged  on the  day  following, but the police  administration  of  the State  of  Hyderabad  was at that time  under  the  complete control  of  the  Razakars and they tried  to  minimise  the gravity  of the occurrence as far as possible and there  was neither  any  proper police investigation  nor  any  serious attempt  to arrest the culprits or bring them to trial.   It was  on  the 28th of August, 1949, that is to say,  after  a lapse of 19 months after the occurrence, that a charge-sheet was   presented  before  the  Special  Tribunal  No.  4   at Trimulgherry,  Secunderabad, against the appellant  and  six other  persons.  The Tribunal was constituted in  accordance with  the  pro-visions of the  Special  Tribunal  Regulation (Regulation V of 1358F) and as provided for in section 2  of the  Regulation, it consisted of three members appointed  by the  Military Governor.  Under section 3 of the  Regulation, it  was  competent to the Military Governor  by  general  or special  order  to  direct  that any  offence  or  class  of offences should be tried by such tribunal and the  procedure to  be followed by such tribunal was laid down in section  4 of the Regulation. , The case against the appellant and  his co-accused was formally referred to the Special Tribunal  by an order of the Military Governor dated the 6th of  October, 1949  ;  but  as the charge-sheet had been  submitted  on  a previous  date, another order was passed on 8th of  October, 1949, validating the presentation of the charge-sheet.   The trial commenced before the Special Tribunal on 24th October, 1949,  and on that day the Special Public Prosecutor  opened the  case  on  behalf of  the  prosecution.   The  procedure followed  in  the  case was the warrant  procedure  and  the prosecution examined 40 witnesses in 593 all  before closing its case.  The  examination-in-chief  of all these witnesses was finished on the 21st November, 1949, and the appellant at that stage, chose to cross-examine only one  witness, namely, the fortieth or the last one and  this was  done  on the 22nd November, 1949.   On  29th  November, 1949,  the  accused was examined under section  273  of  the Hyderabad  Criminal  Procedure  Code  which  corresponds  to section  342 of the Indian Criminal Procedure Code,  and  on the  5th of December following, charges were framed  against him  under sections 123, 124, 330 and 177 read with  section 66  of the Hyderabad Penal Code The cross examination of  18 prosecution  witnesses  was  finished  before  the  26th  of January,  1950,  and the rest of the witnesses  were  cross- examined  after that date.  The accused was  examined  again on, 26th February, 1950. By their judgment dated the 11th September 1950, the Special Tribunal   convicted  the  appellant  on  all  the   charges mentioned  above  and  sentenced him to  2  years"  rigorous imprisonment  under  each of the sections 123, 124  and  177 read  with section 66 and to 7 years’ rigorous  imprisonment under section 330, the sentences to run concurrently.  There was  an appeal taken by the appellant against this  decision to  the  High  Court of Hyderabad.  The High  Court  by  its judgment  dated the 13th of April, 1951, allowed the  appeal to  this extent only, namely, that it acquitted the  accused

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of  the charge under section 123 of the Hyderabad Code,  but otherwise  dismissed the appeal and affirmed the  conviction and  sentence  passed by the Special Tribunal.  On,  6th  of August,  1951, the High Court gave leave to the  accused  to appeal  to  this  court under articles 132 and  134  of  the Constitution; and an appeal has been  filed in pursuance  of this  certificate.  The records of the appeal have not  been printed as yet, but in the mean time the appellant presented an application under article 32 of the Constitution  praying for  a  writ in the nature of certiorari  for  quashing  the orders of the High Court as well as of the Special Tribunal 594 referred to ‘above and for releasing him on the ground  that the  proceedings  before the Special  Tribunal  became  void after  26th  of January, 1950, as they conflicted  with  the provisions  of articles 14 and 21 of the  Constitution.   As the  trial became bad in law after 26th January,  1950,  the resulting conviction and sentence were, it is said,  illegal also, and the appellant is entitled to be released from  his imprisonment ’ When  this  petition  came up for hearing,  a  question  was raised  by  the learned Advocate-General for  the  State  of Hyderabad as to whether a petition under article 32 would be the  proper remedy in a case like this having regard to  the fact  that the High Court, which was a properly  constituted court  and  was  competent  to  go  into  the  question   of jurisdiction of the Special Tribunal, had already dealt with this matter.  Without expressing any opinion on this  point, we  decided  to  hear  arguments  on  the  questions  raised treating  them as preliminary points in the  appeal  itself. Whether the appeal will- be heard further on its merits will depend  upon  the  decision  we arrive  at  in  the  present hearing. The  contention of Mr. Peerbhoy, who appeared in support  of the  appeal, mainly is that the procedure laid down in  the, Special  Tribunal Regulation for trial of offences  departs, in  material particulars, from that under the  ordinary  law obtaining in Hyderabad and these differences do abridge  the rights of the accused and deprive them of benefits to  which otherwise  they would have been entitled under  the  general law.  Prima facie, therefore, the procedure for trial  under the  Special Tribunal Regulation is discriminatory.   It  is urged that this discrimination could not be justified on any reasonable’principle  of  classification.  No  attempt  was, made in the Regulation to classify the offences either  with regard  to  their  nature or the area  in  which  they  were committed.   An  unfettered  discretion  was  left  to   the Military Governor to refer any and every case as he liked to be  tried  by.  the Special Tribunal  without  any  rule  or principle to 595 guide  his discretion.  The whole procedure, therefor,e  was void  according to the ’ principles laid down by this  court in  the  case  of  Anwar Ali Sarkar v.  The  State  of  West Bengal(1).   It is true that in this case  the  Constitution had  not come into force when the trial was commenced and  a portion of the trial had already been gone through prior  to the  26th  of  January, 1950; but it is urged  that  as  the continuance  of  the procedure became void on and  from  the date  of  the  Constitution,  the  conviction  and  sentence resulting  from the adoption of such procedure could not  be upheld.   In this connection, reliance has been placed  upon the  case  of  Lachmandas Kewalram Ahuja  v.  The  State  of Bombay(2)  decided by this court which the  learned  counsel contends exactly covers the present point.

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The  questions  raised are undoubtedly  important  and  they involve an examination of some of the earlier pronouncements of this court. The  first  question that requires consideration  is  as  to whether  the procedure for trial of criminal  offences  laid down in the Special Tribunal Regulation is discriminatory in its  character and offends against the provision of  article 14  of  the Constitution ? If it is found that some  of  the provisions  at least are discriminatory, the question  would then  arise  as to what exactly is the legal position  in  a case  like this where admittedly a considerable  portion  of the trial was gone through prior to the coming into force of the  Constitution and that portion is immune from  challenge on  the ground of discrimination, as the  rights  guaranteed under  the  Constitution  are  not  retrospective  in  their operation.  If the procedure subsequently followed was  also discriminatory,  it is not disputed that the  conviction  of the accused could not stand.  But if it is found that  there was  no occasion after the 26th of January, 1950,  to  apply any   of  the  provisions  of  the  Regulation   which   are discriminatory in their character and if as a matter of fact the procedure that was actually followed was substantially (1) [1952] S.C.R. 284. (2) [1952]S.C.R. 710, 596, the  same  as obtains’ under tHe ordinary law, could  it  be said  that  the whole trial is vitiated  and  the  resulting conviction and sentence must necessarily be set aside ? Looking  first  of  all to the  provision   of  the  Special Tribunal  Regulation, it is to be noticed that the  preamble to  the  Regulation  does  not specify  the  object  of  the enactment  or the legislative policy behind it.   Apparently an  unfettered  discretion has been vested in  the  Military Governor and he can send any offence or class of offences to be  tried  by the Special Tribunal in any way he  likes  and there is no objective expressly stated in the statute itself in  relation  to  which his discretion is to  be  guided  or controlled.  It is indeed 9, matter of common knowledge that this Regulation was promulgated just after tbetermination of the  police  action in Hyderabad when a  most  alarming  and unsettled  state of affairs prevailed in the  State.   There was  undoubtedly ample justification for a  special  measure like  this; but the question still arises whether there  are provisions  in the Regulation, which being repugnant to  the fundamental rights enunciated in the Constitution, could not be  enforced  after the Constitution came into  force?   The provisions  in the Regulation were undoubtedly  intended  to shorten criminal trials and constitute special courts  which would  be  left in entire charge of the  cases  referred  to them,  leaving the ordinary courts to do their normal  work. Under  section 6 of the Regulation, a Special  Tribunal  has been given all the powers which are conferred on a  court of session  by the Hyderabad Criminal Procedure Code.   Section 4(1)  provides  that  it can  take  cognizance  of  offences without  the  accused being committed to it for  trial;  and under  sub-section  (7)  of this section,  the  tribunal  is enjoined  to  follow the procedure  prescribed  for  summary trials  by  Magistrates, though it may,  when  it  considers proper,  follow  the warrant procedure.  It is open  to  the Special  Tribunal to direct that the proceedings  before  it should  be conducted in the English language.  The  Tribunal is lot bound to 597 take  down  evidence at length in writing and it  need  only cause  a  memorandum of the substance of what  each  witness

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deposes  to be taken down in English.  But here again if  it considers  proper,  it can direct that the  entire  evidence should  be taken down.  Among other  changes,the  Regulation provides  that  the tribunal would not be bound  to  adjourn any. trial for any purpose, there would be no de novo  trial if  there  is  a change in its personnel,  it  can  try  any accused  person in his absence if it is satisfied  that  the absence has been brought about by the accused himself with a view  to impede the course of justice, and if  it  considers proper,  it  can  exclude the public  from  any  proceeding. Section  7 provides that the tribunal can pass any  sentence authorised by law and an appeal would lie against its orders to the High Court in the same way as orders of the  Sessions Court  would  be  appealable under  the  provisions  of  the Hyderabad  Criminal Procedure Code.  The powers of  revision and  transfer  are  wholly taken away and so  also  are  the provisions relating to confirmation of sentences.  These, in brief, are the features of the procedure laid down for trial before the Special Tribunal. It  is  admitted that at present no system  of  jury  trial obtains  in  the State of Hyderabad; there is no  doubt  the provision for trial with the aid of assessors in the city of Hyderabad  itself, but there is no such provision for  areas outside  the city. Under the ordinary procedure, at  present case could not have been tried with the aid of assesors  and the appellant cannot complain of inequality in this respect. The committal proceedings are undoubtedly eliminated but  it has  been   brought to or notice by  the  learned  Advocate- General  appearing  for  the State  of  Hyderabad  that  the preliminary enquiry before committal is not compulsory under the  Hyderabad  Criminal Procedure Code; and  under  section 267-A  of  the  Code,  a  Magistrate  is  competant  without recording  any evidence, or after recording some portion  of the evidence, to commit an accused for trial by the 78 598 Sessions Court if he is satisfied that there are  sufficient grounds  for such committal.  It appears therefore that  the elimination  of the committal proceeding is not by itself  a substantial departure  from the normal procedure. Mr.  Peerbhoy  laid much stress upon the  provision  of  the Regulation which authorises the tribunal to direct that  the proceedings  before  it shall be conducted  in  the  English language.  This again cannot be held to be discriminatory as the   Hyderabad  Code  nowhere  prescribes  any   particular language to be the language of the court.  There is no doubt that  ordinary court proceedings in Hyderabad are  conducted in  Urdu, but Urdu is certainly not the spoken  language  of even the majority of the people within the Hyderabad  State. If  the accused in a particular case is not acquainted  with the  English  language and if by reason of  the  absence  of adequate arrangements to have the proceedings interpreted to him in the language he understands, he is prejudiced in  his trial,  obviously it might be a ground which may, be  raised on  his behalf in an appeal against his conviction.  But  in our  opinion  it cannot be said that the  provision  in  the Regulation relating to proceeding being conducted in English if  the tribunal so desires per se violates the  equal  pro- tection clause in the Constitution. I  The  power  of granting  adjournment  rests,  even  under ordinary  law, in the exercise of a sound discretion by  the court  and is not a matter of much consequence.   The  court can  also  under  the ordinary law exclude  members  of  the public  or  particular persons from the court room  in  such circumstances  as it considers proper (vide section  283  of

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the Hyderabad Code).  As regards denovo trial, when there is a  change  in the personnel of the court, the  provision  of section 350 of the Indian Criminal Procedure Code is to  the effect  that when a case after being heard in part goes  for disposal  before  another Magistrate, the  accused  has  the right to demand, before the second Magistrate commences  the proceedings, that the witnesses 599 already examined should be re-examined and reheard Under the corresponding  section (section 281) of the Hyderabad  Code, however though the accused can demand re examination of  the witnesses,  the  Magistrate can disallow such prayer  if  he considers  proper, although the disallowing of  such  prayer may  be a ground for ordering a retrial by the  High  Court. Obviously, the provision in the Special Regulation  deviates only  to  this  extent from  the  ordinary  procedure.   The continuance  of a trial in the absence of the  accused  when the  court  is satisfied that the absence has  been  brought about  by  the  accused  himself to  impede  the  course  of justice, is another special feature of the trial before  the Special  Tribunal.   The two material  departures  from  the normal procedure are to be found in the provisions contained in sub-sections (2) and (7) of section 4 of the  Regulation. Sub-section  (2)  authorises the tribunal to  dispense  with recording the evidence in extenso and provides that a record of the memorandum of the substance of the deposition of each witness would be sufficient.  There is a proviso  introduced by  sub-section (2) (a) which says that the above  provision sball  not  preclude a special Tribunal  from  directing  in respect of any trial that the evidence should be taken  down at length.  Sub-section (7) lays down that, unless something to the contrary has been provided for in the Regulation, the tribunal  should  follow  the procedure  of  summary  trial, though  even  here it can adopt the  warrant  procedure  for reasons which it has got to record in writing. The provision relating to summary trial irrespective of  the nature  of the offence and also that relating to:  recording of   evidence  in  a  summary  manner  may   be   considered prejudicial to the accused and, may normally deprive him  of benefits  which  are  enjoyed  by  other  persons  similarly situated  who are tried under the ordinary law.   One  thing noticeable  in the Special Regulation with regard  to  these provisions  is that an option has been given to the  Special Tribunal to adopted warrant procedure in such cases as                     600 it  -considers  necessary and it can also  direct  that  the evidence should be taken down in extensor In the case before us it is admitted that evidence was recorded in full and the procedure  followed  was, the warrant and  not  the  summary procedure.  Mr. Peerbhoy argues that a law, which allows the summary  procedure  to  be  followed  or  the  recording  of evidence to be dispensed with at the discretion of the court without any attempt to specify the class of cases where such exceptional  provisions  should be applied, is  prima  facie discriminatory  and  is  invalid under  article  14  of  the Constitution  irrespective of the fact as to whether or  not such provisions were actually applied in a particular  case. Whatever  may  be  the position  where  provisions  of  this character  are  laid  down in a statute  enacted  after  the Constitution  came into force, in a case like  the  present, where  the  proceedings prior to 26th January,  1950,  would have  to  be assumed to be valid, the question  as  to  what procedure  was  actually  followed after that  date  may  be relevant  for the purpose of determining whether  the  trial could be regarded as vitiated on the ground of  infringement

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of  the  equal protection rule.  We will have to  deal  with this matter more fully later on. Mr.  Peerbhoy argues that even the substitution of  warrant procedure  for sessions procedure constitutes a  substantial difference.  We cannot accept this contention as sound.   If we  leave  out  the  committal  proceeding,  which  is   not compulsory under the Hyderabad law, the accused could not be in  a  really  worse  position  by  reason  of  the  warrant procedure being followed instead of the sessions  procedure. In  the case before us it appears that the  prosecution  bad examined  all  their  witnesses before the  framing  of  the charge  and the accused was given an opportunity  to  cross- examine them at that stage.  He chose to cross-examine  only one  of these witnesses and after the framing of the  charge all  the prosecution witnesses were cross-examined  by  him. Our  attention has been drawn to the: provision  of  section 267-A (2) (b)  of the Hyderabad Criminal Procedure Code which 601 speaks  of recross-examination by the accused in a  sessions case.  It appears that under the provisions of the Hyderabad Code,  in  a sessions trial the  prosecution  witnesses  are first  examined and  as soon as the examination-in-chief  of each one of them is finished they could be cross-examined on behalf of the accused.  After the prosecution has closed its case and before the accused produces his defence  witnesses, he  is allowed to recross-examine, if he so desires, any  of the  prosecution witnesses, though such  recross-examination is limited to matters which were not put to the witnesses in the   previous   cross-examination.   Neither   side   could enlighten us on the point as to whether this is allowed only when the committing Magistrate does not examine any  witness before  the commitment order or it is applicable  also  when the prosecution witnesses are examined and cross-examined at the  committal stage.  We do not think, however, that it  is correct  to say that during the sessions trial itself  there are  three rights of cross-examination given to the  accused as Mr. Peerbhoy contends.  The accused can crossexamine  the prosecution,witnesses  As and when they are examined by  the prosecution  and he has a right of second  cross-examination at  the end of the prosecution case and before he calls  his own  witnesses,  though  the  latter  right  is  a  thin,and attenuated  one,  being  confined to such  matters  as  were omitted during the first cross-examination.  In the  warrant procedure  which has been followed in the present case,  the accused  also  got  two rights,  of  cross-examination,  one before  the framing of the charge and the second  after  the charge  was framed.  In our opinion, this cannot be said  to be  a substantial difference in the procedure  resulting  in prejudice to the accused. Mr.  Peerbhoy further argued that the provision  for  appeal contained  in  the Regulation deprived him of the  right  of second  appeal  which is allowed under  the  Hyderabad-Code. This   argument,   in   our  opinion,  is   based   upon   a misconception.  It appears from section 355 of the Hyderabad Criminal  Procedure  Code  that  there  are  second  appeals allowed under the 602 Hyderabad  law even in criminal cases; and when it  is  said that  an appeal lies to the High Court from the order  of  a Sessions  Judge,  it  contemplates that  the  order  of  the Sessions  Judge may be passed by him either as  an  original court  or  in  appeal  from  the  decision  of  a   District Magistrate or Assistant Sessions Judge.  But in the  present case  the original trial was by the Special  Tribunal  which

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was  invested  with  the  powers of  a  sessions  court  and consequently  only one appeal would lie to the  High  Court. It  is  said  that the case could have  been  tried  by  the District Magistrate and in that case the accused could  have one  appeal  to the Sessions Judge and a second one  to  the High  Court under the Hyderabad law.  This contention  rests on  a  pure speculation and is hardly tenable.  One  of  the charges  against the accused was a charge of  dacoity  under section  330 of the Hyderabad Penal Code.  On  a  conviction under  this section the court is empowered to  sentence  the accused to a term of rigorous imprisonment which may  extend up to 10 years.  Unless, therefore, the District  Magistrate was  of the opinion that the case did not merit a  ,sentence beyond  4  years of rigorous imprisonment, he was  bound  to refer  the case to be tried by a court of session.  This  is not a matter of which really any grievance could be made. The other departure noticeable in the Special Regulation  is the  withdrawal of the provisions relating to  revision  and transfer.   Another  thing that has been  omitted  from  the Special Tribunal Regulation is the provision relating to the confirmation  of certain sentences which under the  ordinary law  have to be confirmed by higher authorities.   According to  the  Hyderabad  Code, the High Court  has  not  only  to confirm  death  sentences,  but also  sentences  of  trans-. portation  for  life  and  of  imprisonment  for  a   period exceeding  10,years.   The death sentences have  got  to  be further confirmed by the Nizam. It  would appear from what has been stated above that  there are a few provisions in the procedure for trial by a Special Tribunal appointed under the 603 Regulation  mentioned  above,  which  differ  from  ordinary procedure,  and  they  are prima facie  prejudicial  to  the accused.  Under article 13 (1) of the Constitution, all laws in  force in the territory of India immediately  before  the commencement  of  the  Constitution in so far  as  they  are ’inconsistent with the fundamental rights under Part III  of the Constitution shall, to the extent of such inconsistency, be  void.  The argument of Mr. Peerbhoy seems to be that  it may  be  that  all the provisions relating  to  trial  by  a Special  Tribunal are not bad, but as some of them  undoubt- edly are, the whole law on the face of it is  discriminatory and  must be held to be void as conflicting with  the  equal protection  clause,  and  the  question as  to  how  it  was actually  worked out in a particular case is not a  material fact   for  consideration  at  all.   In  support  of   this contention the learned counsel relies upon the view accepted by  the majority of this court in the case of State of  West Bengal v. Anwar Ali Sarkar(1).  In our opinion, the position here is materially different from that in Anwar Ali Sarkar’s case  (1).   In  Anwar Ali Sarkar’s  case  (1)  the  opinion expressed by the majority of this ;court was that section  5 (1)  of the West Bengal Special Courts Act was  ultra  vires the  Constitution  in  so far as’ it  authorised  the  State Government  to  direct any case to be tried by  the  Special Court.  The clause was held to be invalid, as the Act, which was passed after the coming into force of the  Constitution, did  not mention in what cases or offences  such  directions could be given, nor did it purport to lay down the criterion or  the basis upon which the classification was to be  made. As  this portion of section 5 (1) of the statute was on  the face  of  it discriminatory, the question as to how  it  was applied on the facts of a particular case could not and  did not arise. In  the  case  before us, the  impugned  Regulation  was  in

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operation  from  long before the date of  the  Constitution. Section  3 of the Regulation, which is similar to section  6 (1) of the West Bengal Special (1)  (1952] S.C.R. 284. 604 Courts  Act,  might  be in conflict with  the  provision  of article 14 of the Constitution, but as has been held by this court  in Keshavan Madhava Menon’s case (1), the  effect  of article 13 (1) of the Constitution is not to obliterate  the entire  operation of the ’inconsistent laws or to wipe  them out  altogether from the statute book; for to do so will  be to give them retrospective effect which they do not possess. Such laws must be held to be valid for all past transactions and for enforcing rights and liabilities accrued before  the advent  of the Constitution.  On this principle,  the  order made  by the Military Governor, referring this case  to  the Special Tribunal, cannot be, impeached and consequently  the Special Tribunal must be deemed to have taken cognizance  of the case quite properly, and its proceedings up to the  date of  the coming in of the Constitution would also have to  be regarded as valid.  To quote the observation of our  brother Das  J. in Lachmandas Kewalram Akuja v. The State of  Bombay (2), " as the Act was valid in its entirety before the  date of  the Constitution that part of the proceeding before  the Special  Judge which up to that date had been  regulated  by the  special procedure cannot be questioned."  The  question now  arises,  how is the validity of  the  proceedings  sub- sequent to the date of the Constitution to be determined ? It  is  not  disputed  that under  article  13  (1)  of  the Constitution  those  provisions  of  the  Special   Tribunal Regulation  which  are in conflict with article  14  of  the Constitution,  became void as soon as the Constitution  came into  force;  but  article 13 (1) does not  make  the  whole statute invalid, it invalidates only,those provisions  which are  inconsistent  with the  fundamental  rights  guaranteed under  Part III of the Constitution and simply  because  the trial was continued even a ter 26th January, 1950, under the same,   Regulation,   would  not  necessarily   render   the subsequent  proceeding invalid.  A I that the accused  could claim is that, what remained of the trial must not deviate (1) [1951] S.C.R. .S. (2) (1952] S.C.R.710. 605 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 got 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 present case? Mr.  Peerbhoy argues that once it is held that there are  in the   Special  Tribunal  Regulation  provisions  which   are obnoxious  to  the equal protection clause,  any  proceeding under  the Regulation after the 26th of January, 1950,  must be  held to be totally invalid under article 13 (1)  of  the Constitution, and it is not material to enquire whether  the trial  could go on without the discriminating provisions  or whether  as  a matter of fact these provisions were  at  all applied.   It is the possibility of unequal  application  of law  or  the threat to equality that  makes  the  Regulation invalid  after  the Constitution comes into force  and  con- sequently the question of actual prejudice to the accused is

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not a relevant matter for consideration.  In support of this contention  the  learned counsel relies  strongly  upon  the decision  of this court in Lachmandas Kewalram Ahuja v.  The State of Bombay (1).  We are not convinced that this line of reasoning is correct.  In Lachmandas’s case(1) the trial was held before a Special Tribunal constituted under section  10 of  the  Bombay  Public Safety Measures Act,  1947,  and  in accordance  with the procedure laid down in that  Act.   The procedure  was pronounced to be discriminatory  in  material particulars  and  though that part of the trial,  which  was held prior to 26th January, 1950, could not be assailed, the continued application of the discriminatory procedure  after that  date was held to be illegal; and the result  was  that the conviction of the accused (1)  [19521 S.C.R. 710. 79 606 was  set  a side and are trial ordered.  It  appears  to  us ’that  in  Lachmandas’s  case(1) the  present  question  was neither  raised nor considered, namely, as to whether  after eliminating the discriminatory provisions in the statute  it was still possible to go on with the trial and secure to the accused  substantially  the benefits of a  trial  under  the normal  procedure.   On  the  other  hand,  it  was  assumed throughout  that  it was not possible to  proceed  with  the trial without following the discriminatory procedure and  as that  procedure became void on the coming into force of  the Constitution, the jurisdiction of the Special Judge  practi- cally  came  to an end.  Das J. who delivered  the  Majority judgment  of  this Court in Lachmandas’s  case(2)  expressly observed as follows: " Indeed in a sense the Special Judge’s jurisdiction came to an end, for he was enjoined to proceed only according to the special  procedure and that procedure having become void  as stated  above, he could not proceed at all as a Judge  of  a Special Court constituted under the impugned Act." Whether  this assumption was well-founded or not it  is  not profitable for us to discuss at the present stage; but it is clear that this aspect of the case was not presented to  the court  at all by the learned counsel on either side  and  so was   not  considered  by  the  court.   The   decision   in Lachmandas’s case(1) cannot, therefore, be put forward as an authority  against the view which we have  indicated  above. ’In cases of the type which we have before us where part  of the trial could not be challenged as bad and the validity of the  other  part depends on the question as to  whether  the accused has been deprived of equal protection in matters  of "Procedure,  it  is incumbent upon the  court  to  consider, firstly, whether the discriminatory or unequal provisions of law could be separated from the rest and even without them a fair measure of equality in the matter of procedure could be secured to the accused.  In the second place, it has got  to consider whether the procedure actually (1) [1952] S.C.R. 71O, (2)[1952]S.C,R. 710, 735, 607 followed  did  or  did not proceed upon  the  basis  of  the discriminatory provisions.  In our opinion, a mere threat or possibility  of  unequal treatment is  not  sufficient.   If actually  the accused has been discriminated  against,  then and then only he can complain, not otherwise. We  may  mention here that the impossibility of  giving  the accused  the  substance  of  a  trial  according  to  normal procedure  at the subsequent stage may arise not  only  from the   fact   that   the   discriminatory   provisions   were

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not  severable  from  the rest of the  Act.  and  the  court consequently  had no option to continue any other  than  the discriminatory  procedure;  or it may arise  from  something done at the previous stage which though not invalid. at that time  precludes the adoption of a different  procedure  sub- sequently.  Thus if the normal procedure is trial by jury or with   the aid of assessors, and as a matter of  fact  there was no jury or assessor trial at the beginning, it would not be  possible  to  introduce  it  at  any  subsequent  stage. Similarly  having once adopted the summary procedure, it  is not possible to pass on to a different procedure on a  later date.   In  such  cases the whole trial  would  have  to  be condemned as bad.  As has been said above, the case of Lach- mndas Kewalram Ahuja v. The State of Bombay (1) proceeded on the  assumption  that it was not possible  for  the  Special Court to avoid the discriminatory procedure even after  26th January, 1950.  The matter was not investigated but that was the asstimption upon which this court proceeded.  One reason why  this assumption was not combated might have  been  that the  ordinary trial in that case should have been  with  the aid  of assessors and as there was no assessor trial at  the beginning, it was not possible t6 adopt it afterwards. We will now proceed to examine the facts of this case in the light  of  the  principles enunciated  above.   It,  may  be mentioned here that after the learned counsel on both  sides had finished their arguments (1)  [1952]S.C. R. 710. on questions of law, we gave the appellant an opportunity to place materials before us for the purpose of showing to what extent  he  had  been  actually  discriminated  against  and prejudiced in the trial t at was held after the coming  into force  of the Constitution.  He has filed a  long  affidavit setting  out in an elaborate manner his  alleged  grievauces and we gave the parties a further hearing upon it. As  we have already stated, no exception could be taken  to the  Special Tribunal’s taking cognizance of the case  under an order of the Military Governor as all this happened  long before  the  advent of the Constitution; and  it  cannot  be urged  that the creation of ai Special Court by itself  was, an  inequality  in  the  eye  of  law.   Apart  from   other circumstances,  the present case was undoubtedly a  big  one and the trial was expected to take a considerable period  of time before it could be completed.  To allow it to go before the ordinary court would mean nothing else but blocking  the hearing of all other cases for an indefinite length of time. There  was  nothing  per se  unreasonable  in  appointing  a Special  Court  and section 13; of  the  Hyderabad  Criminal Procedure  Code expressly empowers the Government to  confer the powers of a court on any Government servant in any local area or with respect to a particular case or cases and  such person  is  denominated  a special judge.   As  regards  the procedure  to  be  followed by  the  Special  Tribunal,  the Regulation undoubtedly prescribes the procedure for  summary trial  by  a Magistrate.  If the tribunal had  adopted  that procedure, we would have no other alternative but to declare the  whole  trial  as  invalid  for  although  the   summary procedure could not have been challenged as illegal prior to the  doming  in of the Constitution, it could  not  possibly have  been  changed  to a  different  procedure  after  26th January,  1950.  The entire procedure would then have to  be held  as  invalid as conflicting with the  equal  protection clause.  The tribunal however adopted the warrant  procedure which it was entitled to do under the Regulation itself; and as we have 609

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indicated  already,  the  committal  proceeding  not   being compulsory under the Hyderabad Code, the difference  between a  warrant  procedure  and  a  sessions  procedure  is   not material.   The recording of a memorandum of evidence  in  a summary  manner  is another discriminatory  feature  in  the Regulation, but here again the Regulation gave an option  to the tribunal to direct the recording of evidence in  extenso ,and  the tribunal actually did give that direction  in  the present case.  There can be no doubt that if the option  had been  exercised  in  the  other way,  it  would  have,  been impossible to give the accused the substance ’of au ordinary trial after the passing of the Constitution.  The use of the English   language   during  the  trial  is   not   at   all discriminatory  as  we have already said and so far  as  the present  appellant is concerned, he could not possibly  make any  grievance  of it.  No complaint has been  made  by  the appellant  that the Special Tribunal refused to  grant  ,any adjournment that he prayed for and as there was no change in the personnel of the tribunal during the whole period of the trial,  no  question of de nova trial could  at  all  arise. There  was  also no occasion for holding the  trial  in  the absence  of  the  accused ; the  appellant  however  in  his affidavit  has  made a grievance of the fact that  when  the second  local inspection was held by the court,  neither  he nor  his  lawyer was present and he merely gave  a  note  of certain  places and things for information of the  tribunal. In  reply  to this it is stated in the  affidavit  filed  on behalf  of the State that the appellant did not want  to  be present  and he gave a note to the tribunal stating  therein all  that  he wanted to state.  Whatever  the  actual  facts might  have  been it seems to us that this is not  a  matter which  is  connected in any way with the  provision  of  the Regulation  which enables the tribunal to proceed  with  the trial  in  the  absence  of  the  accused.   The  Regulation authorises the tribunal to go on with a trial in the absence of  the accused only when it is satisfied that  the  absence has been brought about by the accused. himself to impede 610 the  course  of justice.  Obviously it was  not  under  this provision  that  the tribunal went to inspect  the  spot  of occurrence  in  the absence of the accused.   In  fact,  the Regulation  does  not  say  ’anything  at  all  &bout  local inspection.  The provision for local inspection is contained in  section 528 of the Hydersbad Code which  corresponds  to section  539A of the Indian Code.  It is important  to  note that  the Hyderabad Code does not say anything about  giving notice  to the parties before holding any local  inspection, though  that is necessary under the Indian law.  It  may  be said  that it is eminently desirable that the  court  should make  the local inspection in the presence of both  parties. But if there was any irregularity in this respect, that is a point which could be raised on the merits of the appeal ; it has  nothing to do with any provision of the  Regulation  in regard  to which a question of conflict with the equal  pro- tection clause can arise. The  omission  of the provisions relating,  to  revision,and transfer   in   the  Regulation  apparently   seem   to   be discriminatory, but even on this point the grievance of  the appellant  appears to be more imaginary than real.   When  a Special Court is validly set up to try a particular case,  a transfer of that case to some other court cannot normally be contemplated.  The absence of the right of transfer. in such cases  is  an incident of the establishment of  the  Special Court.   Under  the  Regulation there is  plenary  power  of transfer given to the Military Governor and he can  exercise

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such  power in any way he likes without any  restriction  or limitation.   It  may  be  that  this  provision-was  deemed sufficient to meet any exceptional circumstance that  might- arise.   As regards the right of revision, it  appears  that there  was  only one application for revision filed  by  the appellant   sometime  before  26th  of  January   1950   The allegations were want of jurisdiction of the, Special  Court and also irregularity of the trial by reason, of  misjoinder of   charges   that  application  was  dismissed  on   27the February, 11950, and-the order 611 shows  that  it  was not rejected on  the  ground  that  the Regulation does not allow’ any revision to the accused,  but that  it was not proper to interfere with the proceeding  at that  stage.   The questions which the appellant  wanted  to raise  were all raised by him in the appeal from  the  final judgment  and they have been considered by the  High  Court. If  there is any error committed by the High Court  in  this respect,  the  appellant would be at liberty to  raise  that point  @hen the appeal is heard on its merits.   Considering all  these  facts,  we have no hesitation  in  holding  that although  there were deviations in certain particulars,  the accused  had substantially the benefit of a normal trial  in this case.  The question of confirmation of sentence, we may say,  is not at all relevant, for the sentenced, which  have been   passed  upon   the  accused,  do  not   require   any confirmation under, the Hyderabad Criminal Procedure Code. In cataloguing his grievances the appellant has stated inter alia ’ in his affidavit that he was kept in military custody and also in a solitary cell, that he was separated from  his fellow prisoners, that the tribunal was completely dominated by  the Executive and that a stenographer was  kept  sitting behind  him  all the time that, the trial was going  on  who took  down  every  word  that passed  between  him  and  his counsel.  It is not at all necessary for us to inquire ’into the truth or falsity of these allegations, for even if  they are true, they are irrelevant to the present enquiry.  These are  matters  not  related in any way  to  the  question  of inequality in connection with the provisions of the  Special Tribunal Regulation. Finally Mr. Peerbhoy raised an objection based on article 21 of the Constitution and contended that the appellant was not tried in accordance with the procedure established by  law.’ What he said is, that the Military Governor had no authority under  section  3 of the Regulation to refer  an  individual case  to the ’Special Tribunal for trial, for it  authorised him to direct the Special Tribunal -to try "any off once 612 whether  committed before or after the commencement of  this Regulation  or  any  classes  of  offences",  but  not   any individual case.  A distinction is made between an "offence" and  a  "case", and the learned counsel points out  that  an offence  could  be  described  as a case  only  when  it  is connected  with a particular person who is alleged  to  have committed  it.   The direction to try  "any  offence"  must, therefore,  mean a direction to try an offence described  as such  in the Hyderabad Penal Code, no matter by whom  it  is committed  and  not an offence committed by  any  particular person  which is a case.  We see no force in this  argument. Whatever interpretation may be put upon the words " off once " and " case " in a context where both are used in the  same provision, as for instance, in section 5 of the West  Bengal Special  Courts Act which was under consideration  in  Anwar Ali Sarkar’s case() we are of opinion that section 3 of  the Regulation  contemplates  no such distinction  and  that  it

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empowers the Military Governor to direct a Special  Tribunal to try an offence committed by a particular person, in other words, to try an individual case.  This view derives support from   the  language  employed  in  the  Hyderabad   Special Tribunals  (Termination)  and Special  Judges  (Appointment) Regulation, 1359 F., whereby it was provided that a  Special Judge  appointed  under  that Regulation  shall  try  "such" offences  of which the trial was pending before  a,  Special Tribunal  immediately before its dissolution as  were  "made over"  to  him for trial by specified  authorities  [section 5(1)  ].  This is clearly a provision for  transfer  of  the cases  pending trial before the Special Tribunals  dissolved under  that Regulation to Special Judges appointed in  their place    As  both  the Regulations  must  be  read  together dealing as they/ do with the constitution and termination of the  same bodies and, as the later Regulation  clearly  uses the  word "offences" in the sense of cases, it must  receive the same meaning in the earlier Regulation V of 1358 F. (1)  [1952) S.C.R. 284.                            618 The  result therefore, is that the preliminary point  raised by  the appellant cannot succeed. The petition under article 32  shall stand dismissed and the appeal will be posted  for hearing-on its merits in the usual, course.            (Petition No. 368 of 1952 and Cases                 Nos. 277 to 280 of 1951). MUKHERJEA  J. The above order in Criminal Appeal No. 276  of 1951  will govern connected Appeals Nos. 277, 278,  279  and 280  of  1951,  which have been  preferred  respectively  by Khadar  Ali  Khan, Mohd., Hazi Khan, Mahbat  Khan  and  Syed Nazir  Ali, the four co-accused of Qasim Razvi in the  Bibi- nagar  dacoity  case, who were tried along with him  by  the Special   Tribunal  No.  IV  at  Trimulgherry.   They   were sentenced  to  various terms of imprisonment on  charges  of dacoity,  rioting,  etc. , by the Special Tribunal  and  the convictions   and  sentences  were  affirmed   with   slight modification by the High Court of Hyderabad in appeal.  They have  now  come  up  to this court  on  the  strength  of  a certificate  granted  by the Hyderabad  High    Court  under articles 132 and 134 of the Constitution. The  appeals are not yet ready for hearing, but as in  Qasim Razvi’s  case,  the appellants have filed a  petition  under article.32  of  the Constitution being Petition No.  368  of 1952-attacking  the  validity of the trial  by  the  Special Tribunal  on  the same constitutional grounds as  have  been urged by Qasim Razvi in his petition.  We heard arguments on these  questions treating them as preliminary points in  the appeals.  The points are, identically the, same as in  Qasim Razvi’s case; only in the affidavits, which have been  filed by  the  petitioners at the conclusion of  the  ,hearing  on questions of law, each one of them has attempted to state in his own way how he was actually prejudiced at  the trial by’ reason of the procedure adopted by the Special Tribunal.  We have  been   taken  through these  affidavits  and  we  find nothing in so 614 them which would justify us in taking a view different  from that taken in Qasim Razvi’s case. It  has  been conceded by Mr. Peerbhoy that  the  cases  of Khadar  Ali Khan and Mahbat- Khan stand exactly on the  same footing  as that of Qasim Razvi.  With regard to Syed  Nazir Ali and Hazi Khan the special facts alleged are that both of them  were  undefended  during  the  trial  by  the  Special Tribunal  and no lawyer was engaged on their behalf.  It  is said  further  that they were both ignorant of  the  English

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language in which the proceedings were conducted,  that  the presiding  Judge  Mr.  Pinto did  Act  understand  Urdu  and consequently  they had no opportunity of  making  themselves heard.   Without  entering into the truth  or  otherwise  of these  allegations,  it  would be enough to  state  for  our present purpose that they do not involve any  constitutional point,  and as we have said in the main case, the  direction to  conduct  proceedings in English does not per  se  offend against the provision of article 14 of the Constitution.  If as a matter of fact the accused did not got a fair trial  or were  prejudiced  in their defence, these matters  can  very well  be raised when the appeals are heard on their  merits. These, however, are not questions which arise at the present stage when we are concerned only with infraction, if any, of the fundamental rights guaranteed under Part III of the Con- stitution.   The result, therefore, is that the  preliminary points raised in these appeals are overruled and the appeals would  be  posted for hearing on their merits in  the  usual course.   The  application  under  article  32  will   stand dismissed. (Petitions Nos. 172 and 368 of 1952 and Cases No8.276 to 280 of 1951.) Bose,  J.-I  am  unable  to  distinguish  these  cases   in’ principle  from  The  State  of West  Bengal  v.  Anwar  Ali Sarkar(1), Kathi Raning Rawat v. The State of  Saurashtra(") and  Lachmandas Kewalralm Ahuja and Another v. The State  of Bombay(3) and in particular (1)  [1952]  S.C.R, 284. (2) [1952] S.C.R. 435,  (3)  [1952] S.C.R, 710, 615 from the last which is more skin to these in that there also there was a trial under a special law which held good  until the  Constitution  of India came into force, but  which  was held  to be bad-after that date because it offended  article 14 (1). Before the Constitution the  State of Hyderabad was not part of the Dominion of India. Its ruler the Nizam, was sovereign in all material respects ahad  absolute powers over  his subjects, including thepower to legislate as he wished  at his will and even at his caprice, if he so chose. Soon after the partition of India, and in particular in  the year 1948, there occurred grievous disturbances in the State which  led to what is popularly known as "police action"  on the  part  of India.  In the course  of  these  disturbances many,  grievous crimes :were committed, and  in  particular, complaints  were laid before the authorities of a series  of grave  offences  said to have been comitted on the  10th  of January,  1948.   Those are the offences with which  we  are concerned.   The first information report relating  to  them was lodged the following day. Some  eight  months later, namely on 13th  September,  1948, there came the police action.  It lasted for three days  and swift  on its conclusion a Military Governor  was  appointed for  the State of Hyderabad.  The Governor  was  immediately invested  by  the Nizam, who was still in law  the  absolute ruler  of  the State, with authority to  legislate  for  the state  way of Regulation.  In exercise of those  powers  the Military  Governor promulgated the Regulation, which is  now impugned, on 31st October, 1948. Sections  2 and 3 of the Regulation empowered  the  Military Governor  to  constitute  Special Tribunals  by  general  or special order, to direct them to try any offences or classes of  offences he chose to name and, further, to transfer  the trial  of  any particular case he liked  from  the  ordinary courts  of  the  State  to one or  other  of  these  Special

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Tribunals.    The  Regulation  also  prescribed  a   special procedure which differed from the procedure of the  ordinary courts. 616 In  pursuance of these powers the Military Governor made  an order  on  26th  June, 1949,  constituting  certain  Special Tribunals,  among them the one with which we are  concerned. Later, on 6th October, 1949, he made another order in  which he  selected the offences which the present  appellants  and their  co-accused were suspected to have committed,  namely, dacoity,  grievous hurt, wrongful confinement,  arson,  riot and destruction of evidence,he furnished particulars of time and  place  and gave a general description  of  the  victims included,  he named the appellants and others as accused  in relation  to  these specific occurrences and  directed  that they be tried by the Special Tribunal for these offenses. I  am not able to regard this as a general  order  directing that  all offenses of dacoity, grievous hurt,  arson,  riot, etc., by whomsoever committed, shall be tried by the Special Tribunal.   The  order, in my opinion, is a  specific,  and, what  might call "unclassified", selection of these  special handpicked  offences  suspected to have  been  committed  by these particular accused. The trial proceeded.  The charge was framed on 5th  December 1949,  and  up  till 26th January, 1950, (the  date  of  the Constitution)   forty  witnesses  were  examined   for   the prosecution.   Of them, eighteen were cross-examined  before 26th  January,  1950,  and  twenty-two  were  cross-examined after.   The  appellants were convicted on  11th  September, 1950,  and  their convictions,were upheld on appeal  by  the High Court of Hyderabad on 13th April, 1951.  It is conceded that  the  ’ trial was valid and regular up to the  26th  of January,  1950. The question is whether it could be  validly continued by the same Tribunal and under the same procedure. after that date. This,  to my mind, involves consideration of three  distinct things:  (1) does the Regulation itself, or any part of  it, contravene  article 14 (1) ? (2) does the Order made on  the strength  of  the  Regulation  do so  ?  and  (3)  does  the procedure adopted by the Tribunal do so ? 617 As to the first, namely the Regulation itself, article 13(i) falls to be considered.  It runs: All  laws  in force in the territory  of  India  immediately before  the commencement of this Constitution, in so far  as they  are  inconsistent with the provisions  of  this  Part, shall, to the extent of such inconsistency, be void." That,  to  my mind, raises this query if this law  had  been passed  after  the Constitution and the  present  trial  had commenced after it, would either have been valid ? If not, I cannot  see  how  a  conviction  can  be  based  after   the Constitution on a procedure and on matter which is abhorrent to  its fundamental chapter however much all that  was  done may  hive been, good up to that date.  This, to my mind,  is not giving retrospective effect to the Constitution  because the  vital  part  of a trial is its conclusion.   I  am  not prepared  to  construe  these fundamental  provisions  in  a narrow  way.   Paraphrasing  them broadly,  they  breathe  a message  of  hope to those who have not known  equality’  of treat me, before, and give a guarantee of security to  those who  have,  a  guarantee which  came  into  effective  being the  moment  the  Constitution  was  born.   Assuming   this Regulation  to be a law which offends the  Constitution  and therefore which could not have been upheld after it, we have the  Constitution  saying  to every man who  can  claim  its

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protection   " You shall not be convicted, nor will  you  be sent  to  jail’, under laws which infringe  the  fundamental rights  hereby guaranteed to’ you." In my judgment, it is  a breach of this fundamental guarantee to convict on the basis of  a  law which cannot hold good after  the  ’Constitution. This,  to my mind, is the decision in Lachmandas’s  case(1). I  refer  in  particular to the following  passages  in  the majority judgment : "As the Act was valid in its entirety before the date of the Constitution, that part of the proceeding before the Special Judge,  which,. up to that date, had been regulated by  this special procedure cannot be (1)  [1952] S.C.R. 710. 618 questioned, however discriminatory it may have been, but  if the discriminatory procedure is continued after the date  of the   Constitution,   surely   the   accused-   person   may legitimately ask: ’Why am I today being treated  differently from other persons accused of similar offences in respect of procedure?’ it is therefore clear............ that such continuation  of the  application  of the discriminatory procedure  to  their cases  after  the  date of the  Constitution  constituted  a breach  of their fundamental right guaranteed by article  14 and being inconsistent with the’ provisions of that  article the   special   procedure   became   void   under    article 13............ Their complaint is not for something that had happened   before   26th   January,   1950,   but   is   for unconstitutional  discrimination  shown against  them  since that date. Therefore,  the  continuation of the trial after  that  date according  to  the discriminate my  procedure  resulting  in their  conviction and sentence cannot be supported.   Indeed in a sense the Special Judge’s jurisdiction came to an  end, for he was enjoined to proceed only according to the special procedure  and that procedure having become void  as  stated above,  he could not proceed at all as a Judge of a  Special Court constituted under the impugned Act." I now proceed to consider whether this Regulation could have been upheld as good law if it had been promulgated after the Constitution; and here it is necessary to emphasise that  in testing  the validity of a law it is irrelevant to  consider what   has  been  done  under  it,  for  a  law  is   either constitutional  or not and its validity or otherwise  cannot depend upon what has been accomplished under its provisions. That,  to  my mind, is self-evident, but it  also  seems  to follow  from that portion of the, majority decision  in  the West Bengal case(1) which is summarised in headnote (ii)  at page 285 and head note (v) at page 286. (1)[1952] S.C.R. 284. 619 Now in Lachmandas’s case(I)there is this important  passage at page 733: "  Further,  the supposed basis of  the  alleged  classifi- cation,  namely the fact of reference, to the Special  Court before the Constitution came into effect, has no  reasonable relation to the objects Bought to be achieved by the Act." This,  in my opinion shows that the majority  considered  it relevant and important to determine the  post-constitutional validity of’ an enactment which was valid up ’to the date of the  Constitution by the application of  post-constitutional standards and tests. In  the present case , the impugned Regulation does not  set out  any  objects.  I do not think that is fatal  but  I  do think that when that is the case, the Courts are called upon

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to  determine what the objects are from the Act  itself  and the surrounding circumstances, as best they may, and if  the objects  so determined cannot be reasonably related  to  the basis  of  the classification, the Regulation must,  on  the authority  of  Lachmandas’s  case(1),  be  considered  post- constitutionally improper. Now, looking to the surrounding circumstances, I can   only conceive of two objects (1) speedier trials.(2)   more convenient disposal of certain unspecified cases.  The first has  been  condemned as discriminatory in  the  West  Bengal case(2) in the following words: "Assuming that the preamble throws any light on the section, the necessity of speedier trial is too vague, uncertain  and elusive   a   criterion  to  form  a  rational   basis   for discrimination." By   parity   of   reasoning  the  second   is   even   more objectionable. The  next point on which the West Bengal Special Courts  Act was  considered objectionable by at least four of the  seven Judges  was  that  the Act did not lay down  any  basis  for classification of the cases (1) [1952] S.C.R. 710, (2) 1952] S.C.R. 284. 620 which  could be sent to the Special Court for trial under  a procedure  which  varied-  substantially from  that  of  the Criminal  Procedure Code and that it left ’the selection  of the offences and the cases to the uncontrolled discretion of the State Government. In  the Saurashtra case(1) the majority of the  Judges  held that  the  mere  fact  that  an’  Act  authorises  a   State Government to direct that offences or classes of offences or classes of cases are to be tried by a special court does not off end article 14.  Reading this with the earlier judgment, I  conclude  that the true principle is that it is  not  the setting up of special courts which matters, unless of course their composition is objectionable, but the procedure  which they  are  directed to follow.  If the  special  judges  are selected  from a class of judicially qualified  and  experi- enced  men of recognised impartiality and they are  enjoined to  follow a procedure which does not  differ  substantially from that of the ordinary courts, there can be no reasonable objection,  but  if the procedure deprives  the  accused  of substantial advantages which other accused similarly placed, can, demand, then article 14 comes into play. The impugned Regulation in the present case Rulers from  the same defects.  Under it the Military Governor is  authorised to  direct  that, any offences whether committed  before  on after  the commencement of the Regulation, or any  class  of offences,  shall  be  tried  by a  Special  Court,  also  to transfer  any  particular,case from  the  ordinary  criminal courts to a Special Tribunal.  His discretion is  unfettered and absolute. So  far as the special procedure is concerned, three of  its features  have been considered in one or other of the  three earlier decisions and criticised as abhorrent to article 14. Those features are (1) an absence of committal  proceedings, (2)  deprivation of the right of (a) revision, (b)  transfer and  (o) of the right to .demand a do novo trial in  certain circumstances, and (1)  [1952]S.C.R. 435 621 (3)  the  right of the Special Tribunal to adopt  a  summary procedure  in  cases  where that  would  not  ordinarily  be permissible.

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In  the present case, the question of a de novo  trial  is not  only linked up with the absence of a right of  transfer but  with  the fact that even when the constitution  of  the Special  Bench is changed by an alteration of its  personnel there is no right to demand a de novo trial,  In  addition to these, there are certain features of  dis- crimination   in  the  Regulation  which  are  Peculiar   to Hyderabad,  namely  the elimination of  the  Urdu  language, which  in practice is the language of the Courts there,  and the right to have certain sentences confirmed.  The  Hyderabad High Court made an attempt to out out those objectionable  portions and rewrite the  Regulation  Without them  in  Abdur Rahim & others V. Joseph A. Pinto  &  others (1),  but that can only be done if it is possible -to  sever the  bad from the good in such a way as to leave the  Act  a workable whole so that on a fair review of the whole  matter it  can be assumed that the legislature would  have  enacted what survives without enacting the part that is ultra  vires at all.  That is the test accepted in The State of Bombay v. F. N. Balsara(2).      It is however difficult to see how this cutting out process  could be made to work.  Consider but one  feature. The  Regulation  prescribes  that  the  proceedings  are  to be,summary,  though for special reasons (to be  recorded  in writing)  the warrant procedure may be followed.   Which  of these two is to be struck out as bad?  Until an actual  case arises  and  is sent to the Special Tribunal  for  trial  it would  be impossible to say.  Further, if we strike out  the portion  relating  to the summary procedure, then  cases  of simple  hurt  would have to be tried by  the  more  cumbrous warrant  procedure; on the other hand, if we strike out  the clause  which covers the warrant procedure then we will  get serious offences which would (1) A.I.R. 1951 Hyd.  II,   (2) [1951] S.C R. 682 at 727, 81 622 normally be committed to sessions tried summarily.  I cannot see  how  the  good can be separated from the  bad  in  this particular case and the Regulation still be left workable.    However,  all  that  is  based  on  the   classification hypothesis  of which I am not enamoured.  I prefer to  found on  the narrower issue, namely, was there discrimination  in fact  and  did it continue after the Constitution  The  most glaring  instance  of  this  lies  in  the  fact  ’that  the proceedings  were conducted in the English language  whereas Urdu is the language of the courts in Hyderabad, at any rate in  practice.   One of the appellants knows English  but  at least  one  does  not  and a third  has  only  a  smattering knowledge  of it.  That course would not have mattered  much had  the  court language in that area been English,  for  in that  event  there would have been  no  discrimination.   It would  only have been one of the accidents of fortune  which befall  many. an accused who is tried in an area  where  the court  language  is one which he does not  understand.   But when  the de facto language of the courts is his own  mother tongue  and all other Urdu knowing persons in that area  are tried  in the language which they and he understand  and  he alone is discriminated against by being pent for trial to  a court whose proceedings are conducted in a language which he does not know, or, at best, understands but imperfectly, the matter assumes a very different hue.   In  Hyderabad the court language in practice is Urdu  and so  great  is  the importance attached to  it  that  neither judges  nor counsel are permitted to function there   unless they know that language.  Indeed, the matter was carried  to

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such  length is that’ one of the appellant was  refused  the services  of an eminent King’s Counsel from England  on  the ground that the latter did not know the court language Urdu. But at the same time the appellants were tried in a language which  the gentleman in question did know and which was  the language  of  the  Special Tribunal.  And  an  even  greater anomaly, the President of the Tribunal himself did not  know Urdu.  I am -unable to brush this 623 aside  as  a  matter of no consequence.  It is  to  my  mind material and vital and cuts at the root of this,, trial.   I find  it impossible to say that this is  not  discrimination within  the meaning of article 14 and it is patent that  the discrimination continued after the Constitution.    I  still prefer to base broadly on what I called, in  an earlier   case,  the  social  conscience  of   a   sovereign democratic  republic  as seen through Indian  eyes  and  as, reflected  in the Constitution of India.  The judges of  the land  are  the keepers and interpreters of  that  conscience even as the Lord Chancellor was, and in theory still is, the keeper  of the King’s conscience in England.  I can find  no more difficulty in determining a case along these lines than do  judges  and  juries who are called  upon  to  apply  the standards of a reasonable man to a given base where that  is required.   In  my view, there  is  something  fundamentally wrong in guaranteeing a man equality before the law with one hand   and   with   the  other   permitting   an   arbitrary discrimination  which could not have been  supported,  after the  Constitution to continue after it just because  it  had commenced at an earlier date.  There is to my mind something grotesquely  fantastic in insisting on Urdu knowing  counsel in  a  tribunal  whose proceedings are to  be  conducted  in English  and at the same time rigidly excluding counsel  who do  not know Urdu and who do know English.  It may  be  that these  are the rules of the Hyderabad Bar but that is  based on the assumption that the language of the courts is Urdu If the  one rule can be waived or relaxed or altered,  so  also can the other.  To apply both at the same time makes, in  my judgment,  for the type of discrimination which  article  14 forbids,  for either Urdu has special significance  in  this area  or it is an unimportant fact.  If it is  material  and important, then we have grave discrimination.  If it is not, then again there is grave discrimination in not allowing the accused  counsel  of  his  choice  which  others   similarly situated  could claim, on the sole. ground that the  counsel chosen knows 624    the  language  in  which  the,  proceedings  are  to  be conducted  and does not know another language which  is  not the court language for the purposes of this special trial.   I must not be understood to say that the appellants  were treated unfairly by the Tribunal.  As far as I can see, much was stretched in their favour, and in the matter of  counsel to defend them funds were provided and spent by the State on a lavish-scale.  I have little doubt that the conduct of the appellants in discharging those counsel after they had  been generously  paid by the State evidences their bad faith  and their  desire  to thwart a fair and proper trial,  fair  and proper  that  is to say before the  Constitution.   But  the issue  before us is not fairness but  discrimination  within the  meaning of article 14.  The money and time which  would be  wasted were my view to prevail would be unfortunate  but all that is part of the price to be paid for the maintenance of the principles which our Constitution guaranteed part  of the price of democracy.

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 As  regards the question of revision and confirmation  of sentences  and  transfer and bail, it is in  my  opinion  no answer to say that the sentences imposed would not have been subject  to confirmation even in an ordinary court and  that there were no applications for transfer or revision or  bail after  the Constitution.  The point is that  the  Regulation forbids  all  this  and,  therefore, in  the  words  of  the majority  decision  in  Lachmandas’s  case(1),  the  Special Judge’s  jurisdiction  came to an end.   The  discrimination lies in the trial itself, or the continuation of it, and the accused  does  not have to wait till its conclusion  on  the ground  that  he might after all be acquitted or  granted  a nonappealable  sentence.   His  right is to  complain  of  a trial,  or  a material portion of it, by a  tribunal  which, according to the decision in Lachmandas’s case(1), ceases to have jurisdiction after the Constitution.   In my opinion, all these convictions should be set  aside and a fresh trial in accordance with the (1)  [1952] S.C.R. 710. 625 normal  procedure  of  the  State in  that  area  should  be ordered.    GHULAM HASAN J.-The question which is  canvassed  before us  on behalf of the petitioner Syed Qasim Razvi raises  the constitutional point whether his trial and conviction by the Special  Tribunal  IV  at  Trimulgherry,  Secunderabad,   in respect  of certain offences alleged to have been  committed by him are void as being in contravention of articles 14 and 21,  read with article 13 of the Constitution.  The  Special Tribunal  consisting  of  a President and  two  members  was constituted  by  the Military Governor  of  Hyderabad  under section 3 of the Special Tribunal Regulation v of 1358-Fasli It is common knowledge that the police action took place  in Hyderabad on September 13, 1948.  The Regulation in question was  promulgated  by the Military Governor  on  October  30, 1948.    An  armed  dacoity was committed on  January  10,  1948, between  5 p.m. and 7-30 p.m., at Bibinagar village and  its Railway  Station,  about 21 miles from Hyderabad,  and  Syed Qasim  Razvi  and  his  co-accused  were  charged  with  the offences  of rioting, rioting with deadly weapons,  dacoity, arson,  causing grievous injuries to persons and  destroying evidence of the crime.  The First Information Report of  the occurrence was made on the following day but the chargesheet was  not submitted to the Special Tribunal till  August  28, 1949,  as  some  of  the accused  were  absconding  and  the investigation   had  to  be  carried  out  under   difficult circumstances.   On  October 6, 1949 the  Military  Governor acting  under section 3 of the Regulation directed that  the Tribunal  shall try the offences specified as Serial No.1  & 2.  Serial  No.1  mentioned the offence  of  murder  of  one Shoebulla.   Khan  alleged to have been  committed  by  Syed Qasim Razvi and his co-accused and Serial No,. 2 referred to the  offences  in respect of the Bibinagar  dacoity  against Syed Qasim Razvi and 20 other persons.  We are not concerned with the first incident 626 and we understand that Razvi was acquitted of the charge  of murder.    In  the  second case forty  prosecution  witnesses  were examined-in-chief  up  to November 21, 1949,  eighteen  were cross-examined  between this date and January 26, 1950,  and 22 were cross-examined after that date.  Razvi was  examined on  November 29, 1949, and again on February 26, 1950.   The charges  were framed on December 5, 1949.  He was  convicted

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on  September  11,  1950,  and was  sentenced  to  7  years’ rigorous  imprisonment  under section 330 of  the  Hyderabad Penal code, corresponding to section 395 of the Indian Penal Code,  and 2 years’ rigorous imprisonment under each of  the following  sections,  section 124 corresponding  to  section 148, Indian Penal Code, section 177 corresponding to section 201, Indian Penal Code, and section 177/66 corresponding  to Section  109,  Indian  Penal  Code,  the  sentences  to  run concurrently.  Similar sentences were passed against the co- accused.   Their convictions and sentences we Ire upheld  on appeal  by the High Court at Hyderabad on, April  13,  1951. In August, 1951, they obtained leave to appeal to this court under articles 132 and 134 of the Constitution.    While  these appeals were pending and the record was  in course of preparation, Razvi filed a petition under  article 32  of the Constitution praying for the issue of a  writ  of certiorari  calling  for the record of the  High  Court  and quashing the orders dated September 11, 1950, and April  13, 1951,  and  ordering his release.  The  petition  challenges Regulation V of 1358-Fasli, as having become void after  the 26th  of  January, 1950, as the procedure laid down  by  the Regulation  is  discriminatory against  the  petitioner  and violates  his  fundamental  right under article  14  of  the Constitution.  The petition also challenges the continuation of the trial of the petitioner under the provisions of,  the said Regulation after the 26th of January, 1950, as being an infringement  of his rights under articles 14 and 21 of  the Constitution.  The conviction and sentence are sought to  be set 627 aside  as  being  illegal and  without  jurisdiction.   This contention is also raised in the appeal but as the appeal is not ready, we were invited by Mr. Peerbhoy, counsel for  the petitioner,  to decide the question of the validity  of  the impugned Regulation without waiting for the printing of  the record.   Accordingly  we decided to hear  the  question  of jurisdiction as a preliminary point in the appeal.   Mr. Peerbhoy counsel for the petitioner, before giving us a  detailed  list  of the  discriminatory  features  in  the impugned Regulation attacked the Regulation as being without a preamble specifying the objects of the Regulation such  as promotion  of  speedy trial, maintenance  of  public  order, safety  of  the State etc. which form a  common  feature  of Security  Acts  and Regulations.  This defect  need  not  be fatal,  for  it  is possible to gather  the  object  of  the Regulation  from its provisions considered in the  light  of the  surrounding circumstances.  There is little doubt  that in view of the disturbed conditions prevailing in the  State at  the  time, the commission of numerous offences  and  the threat  to  commit further acts of  violence,  the  Military Governor may well have been advised to simplify and  shorten the procedure for trial of offenders so as to bring them  to speedy  justice.   The  appointment  of  Special  Judges  or Special Tribunals was conceived in the same spirit, i.e., to expedite the disposal of cases, so that justice may not be delayed.   By  section 3 of the Regulation it was provided that  the Military  Governor " may by general or special order  direct that  the  special Tribunal shall try  any  offence  whether committed   before   or  After   the-commencement   of   the Regulation,  or  any class of offences and may by  any  such order  direct  the  transfer to a special  Tribunal  of  any particular  case  from any other - special Tribunal  or  any other  Criminal Court or direct the transfer from a  special Tribunal  of  any  particular case  to  any  other  Criminal

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Court.’   It  is  contended  not  without  force   that   no notification was issued in pursuance of section 3 as to what offence or 628 class  of  offences  shall be tried by  the  Tribunal.   The petitioner,It  is urged, would have  had,no grievance  if  a certain, class of offences in the State or in any particular portion  thereof, committed by all and sundry, were  with  a view  to expeditious disposal tried by a  Special  Tribunal, but the perticular case of the petitioner was alone  singled out  for trial by the Special Tribunal, while all  offences, irrespective  of  their  nature  or  gravity  committed   in Bibinagar village before or after the occurrence, were tried in  the ordinary courts according to the  normal  procedure, laid  down in the Hyderabad Criminal Procedure Code.   There was  no  basis,  much  less  any  rational  basis  for   the exceptional  treatment.  The trial of the petitioner by  the Tribunal,  according  to a special procedure,  was,  it  was contended,  discriminatory,  and  took  away  his  right  of equality  before the law.  It is further objected  that  the Regulation  prescribed no qualifications for the me  members of  the  Tribunal  and their appointment  was  left  to  the unfettered   discretion  of  the  Military   Governor.    No procedure  requiring any academic qualifications  and  legal training has been referred to and this point may be regarded as unsubstantial.  The Tribunal constitute for the trial  of the  present case may not perhaps be open to  the  criticism that  fit and proper persons were not appointed  except  the fact  that  the  President  was  not  acquainted  with   the language  of the accused, but there was nothing  to  prevent the  Military  Governor from appointing any one  who  lacked proper  qualifications.   His power of appointment  was  not circumscribed by any restrictions and it would be Po  answer to say that he did not abuse this power.   Mr.  Peerbhoy  attacked the following provisions  of  the Regulation as discriminatory.  1. The right of the Special Tribunal to take cognizance of offences  without  the  accused being committed  to  it  for trial.   2.     There is no provision that the trial shall be held with the aid of jury or with assessors 629 3.   English shall be the language of the Tribunal. 4.  Evidence shall not be taken down at length, but only  a memorandum  of  the  substance  of  the  evidence  shall  be prepared. 5.   The Tribunal shall not be bound to adjourn the case. 6.   There is no provision for a de novo trial by reason  of change in personnel. 7.   A.  Special  Tribunal  is entitled  to  follow  summary procedure but it may follow the procedure prescribed for the trial of warrant cases. 8.   Trial is permitted in the absence of the accused  where such absence is due to his behaviour in or outside court for the purpose of impeding the course of  justice. 9.   Right to bail or habeas corpus is taken away. 10.  There is no right to re-cross-examine  the  prosecution witnesses before the accused opens his defence. 11.  The Special Tribunal is treated under the Regulation as a Court of Sessions exercising original jurisdiction,  hence there is only one right of appeal to the High Court.  If the case  had been tried by a Magistrate of the 1st Class  or  a District  Magistrate,  a  second  appeal  would  have   been competent where the sentence did not exceed four years. 12.  There is no right of transfer.

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13.  There is no right of revision. 14.  There is no right of confirmation of sentence which existed under the Hyderabad Code in favour of the High Court, the Government and the Nizam in certain cases.   Without   minimizing   the  importance   of   the   other provisions,  I  shall  prefer to deal  with  the  more  sub. stantial ones given as Nos. 1, 2, 3, 4, 6, 9, 12, 13 and 14. 1.   The  relevant  provision  of  the  Hyderabad   Criminal Procedure Code hereinafter called the Code 82 630 is  section 267A, which unlike Chapter XVIII of  the  Indian Code does not make it obligatory that every case triable  by a  Court  of  Sessions  should  be  committed  to  it  by  a Magistrate.   Direct  commitment to the Sessions  without  a preliminary  inquiry  is,  however,  permissible  where  the accused  himself does not want such an inquiry, or where  on being  questioned,  he  admits  facts  which  constitute  an offence fit to be tried by a Sessions Court.  Barring  these two  cases the Magistrate without recording any evidence  or after  recording  some  portion  of  the  evidence  may,  if satisfied, that there are sufficient grounds for  committing the  case to the Sessions, commit the accused Section 4  (1) of   the  Regulation  definitely  excludes  the   commitment proceedings.   2.     Section 414 of the Code empowers the Government by a notification to direct that any particular class of  cases shall be tried in the High Court by Jury and in any Court of Sessions either by Jury or with the aid of assessors.   This power is absent in the Regulation.  It is true that there is no  general  procedure of trial by Jury or with the  aid  of assessors in the State, but it is open to the Government  to exercise its powers and direct that any particular class  of cases shall be so tried.  3. By  section  286  the evidence of witnesses  is  to  be recorded  in the language of the court and by  sections  294 and  295  the  judgment of the court shall  be  written  and pronounced  in  the  language of the  court.  Neither  party referred  to any provision of the Code showing what was  the language  of the court, but Mr. Peerbhoy stated that  it  is Urdu.  He said that the State laws are enacted in Urdu,  the arguments are addressed in Urdu, judgments are given in Urdu and  the  reports of decisions are also published  in  Urdu. The  Code which was referred to us was in Urdu but the  only section  which  specifically refers to Urdu is  section  230 which  requires that every charge which is framed  shall  be written  in  Urdu.   It is not  improbable  that  the  court language is Urdu which was the language of the ruling class, though 631 it  may not be spoken by the majority of the people  in  the State.   4.Section  286 of the Code requires that the evidence  of each  witness  shall be taken down in the  language  of  the court in the form of a continuous statement, whereas section 4, sub-section (2) of the Regulation states that the Special Tribunal  need not take down the evidence at length  but  it shall take down the substance of what each witness  deposes. Power  is,  however,  given to the  Tribunal  to  direct  in respect  of any trial that the evidence shall be taken  down at  length.   It is obvious that while the  Code  lays  down peremptorily that the evidence shall be recorded at  length, the  Regulation  provides  to  the  contrary  and  makes  it directory in respect of certain trials  only.

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6. Section 281 of the Code corresponding to section  350 of the Indian Code provides for the right of a de novo trial at  the  instance  of  the  accused,  in  cases  where   the Magistrate  having heard and recorded the whole or any  part of the evidence, in any case ceases to exercise jurisdiction therein  and  is  succeeded  by  another  Magistrate.    The Magistrate  has,  however,  got  the  power  to  reject  the accused’s demand either wholly or partly but in that case he is.  bound to record reasons.  It is true that the right  to demand a de novo trial is subject to the Magistrate’s  power of  refusal, coupled with the obligation to record  reasons, but the language of the Code appears to suggest that such  a refusal should be an exception rather than the rule.  It  is pointed  out by the learned Advocate-General for  the  State that the question of a de novo trial did not arise in  point of  fact but the possibility of a vacancy arising by  reason of circumstances beyond human control could not be  elimina- ted.  9.  Under section 468 of the Code any person accused of  a non-bailable  offence may be released on bail, unless  there appears  reasonable  ground for believing that he  has  been guilty of an offence punishable with death or transportation for life.  The right to ask for bail is excluded by section 6, subsection (2)  of the Regulation which clearly- says that no court shall  have any  jurisdiction of any kind in respect of any  proceedings before a Special Tribunal.    12.  Chapter XXXVIII of the Code deals with the power of transfer and section 494 confers a wide power upon the  High Court  to transfer cases from one court to another,  whereas under  section  3 of the Regulation, the  Military  Governor alone  has  got  the  power  of  transfer.   That  power  is apparently  to be exercised suo motu, but an accused has  no right to move for transfer.  13. Section 360 of the Code confers the power of  revision upon the High Court, the Court of Sessions and the  District Magistrate against the orders of the subordinate courts, but section  7, sub-section (2) of the Regulation  excludes  the right of revision.   14.Section  20  of the Code lays down  that  no  sentence passed  by a Sessions Judge shall be enforced, unless it  is confirmed   (a)  in the case of a sentence of imprisonment  exceeding ten years, by the High Court;   (b)  in the case of life imprisonment, by the  Government and (c)in the case of death by his Exalted Highness the Nizam Section  7, sub-section (2) of the Regulation, excludes  the power of confirmation by any authority whatsoever.  Mr. Peerbhoy, counsel for the petitioner, strongly  relies upon  the case of Lachmandas Kewalram Ahuja v. The State  of Bombay  (1) in support of his contention that  the  impugned Regulation  is  void under article 14 and submits  that  the case  should  be decided in accordance with  the  principles laid down by the majority in that case.  Fortunately for  me it  is  not  necessary  to  attempt  an  exposition  of  the principles which should regulate the decision of a case like the (1)  (1952] S.C.R. 710. 633 present, as the matter has been exhaustively dealt  with  in The  State of West Bengal v. Anwar Ali It  Sarkar (1)  where my  Lord the Chief Justice and my other learned brothers  in this Bench have expressed views separately and  collectively on  the exact meaning and scope of article 14.  So far as  I

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am concerned, the majority view expressed by Mr. Justice Das in  the  Bombay case with  which  Mukherjea,  Chandrasekhara Aiyar  and  Bose JJ. concurred, ray Lord the  Chief  Justice dissenting, is conclusive.   I  shall take up Lachmandas’s case(2) first.  It  appears that  a  broad daylight robbery took place at  Ahmedabad  in which  a  driver and a peon of the  Central Bank  were  shot dead on May 26th, 1949, while they were carrying bank  money in  a motorvan.  By section 12 of the Bombay  Public  Safety Measures Act, 1947, which was in the same terms as section 5 (1) of the West Bengal Act and section 11 of the  Saurashtra Ordinance  it was provided that "a Special Judge  shall  try such offences or class of offences or such cases or class of cases as the Provincial Government may by general or special order   in  writing  direct."  Section  10   empowered   the Government  by  notification  in  the  Official  Gazette  to constitute special courts of criminal jurisdiction for  such areas as may be specified in the notification.   Accordingly by  a  notification  issued in August, 1949,  the  State  of Bombay  exercising its power under section 11 appointed  the District  and  Sessions Judge of Ahmedabad  as  the  Special Judge  to try the accused.  The charges against the  accused were  framed on January 13, 1950, without any  committal  by the   Magistrate.   Seventeen  prosecution  witnesses   were examined  before January 26, 1950, and 45 after  that  date. The accused were convicted on March 30, 1950, and  sentenced to  death,  Their appeal was dismissed by  the  Bombay  High Court,  but  they  preferred appeals  to  this  court  after obtaining  a  certificate  under  article  132  (1)  of  the Constitution.   The question which arose  for  consideration was whether (1) [1952] S.C.R. 284.  (2) [1952] S.C.R. 710.   the  Bombay  Act  or  that  part  of  section  12   which authorises the State Government to direct specific cases  to be tried by a Special Judge appointed under that Act offends against the equal-protection of law guaranteed by article 14 of the Constitution, and is as such void under article 13 on the  principles  laid  down by this court  in  two  previous cases, The State of West Bengal v. Anwar Ali Sarkar (1)  and Kathi  Raning  Rawat  v. The State  of  Saurashtra  (2)  Mr. Justice  Das who delivered the judgment of the  majority  in which  Mahajan,  Mukherjea  and  Chandrasekhara  Aiyar,  JJ. concurred answered the question in ,the affirmative and held that the accused are entitled after the Constitution not  to be discriminated against in the matter of procedure and  are entitled  to  be  tried according to the  ordinary  law.   A retrial thereupon was ordered.  Mr. Justice Das examined the provisions of the Act in detail, summarising the position at page 726 as follows:-   "Thus  besides  providing  for  enhanced  punishment  and whipping  the  Act  eliminates  the  committal   proceedings (section 13 (1)), permits the Special Judge to record only a memorandum of the evidence, confers on him a larger power to refuse to summon a defence witness than what is conferred on a court by section 257 (1) of the Code of Criminal Procedure and  also deprives the accused of his right to apply  for  a transfer  or for revision.  That these departures  from  the ordinary  law  cause prejudice to persons subjected  to  the procedure  prescribed  by  the Act cannot for  a  moment  be denied.   This court has, by its decisions in the  State  of West Bengal v. Anwar Ali Sarkar(1) and in Kathi Raning Rawat v.  The State of Saurashtra (2), recognized that article  14 condemns  discrimination not only by a substantive  law  but also by a law of procedure and that the procedure prescribed by  the corresponding provisions in the West Bengal  Special

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Courts  Act  and the Saurashtra Ordinance  which  introduced similar  departures  from  the  ordinary  law  of  procedure constituted (1) [1952] S.C.R. 284.   (2) (1952) S.C.R. 435. 635 a discrimination against persons tried by the Special  Judge according  to  procedure  prescribed  -by  those  pieces  of legislation and finally that, in any event, section 5 (1) of the  West  Bengal  Act and section  11  of  the  Saurashtra, Ordinance,  both of which corresponded to section 12 of  the Bombay  Public  Security  Measures Act, in so  far  as  they authorised the Government to direct specific and  particular ’cases’   to   be   tried  by   the   Special   Judge,   was unconstitutional  and void.  In view of the departures  from the  ordinary law brought about by the Bombay Public  Safety Measures Act, 1947, which are noted above, it cannot but  be held, on a parity of reasoning, that at any rate section  12 of  the  Act, in so far as it authorises the  Government  to direct particular ’cases’ to be tried by a Special Judge, is also unconstitutional."  Dealing  with  the  argument that  the  special  procedure prescribed by the impugned Act constitutes a departure  from the  ordinary law of procedure and is, in some  ,  important respects,  detrimental  to  the  interest  of  the   persons subjected to it and as such is discriminatory he observed:-   "The  discrimination  does  not end with  the  taking  of cognizance of the case by the Special Judge without the case being  committed  to him but continues  even  in  subsequent stages of the proceedings in that the person subjected to it cannot, even at those subsequent stages, have the benefit of having the evidence for or against him recorded in  extenso, may  not get summons for all witnesses he wishes to  examine in  defence only on the ground that the Special  Judge  does not consider that such evidence will be material and  cannot exercise his right to apply to a superior court for transfer of  the  case even though the Special  Judge  has  exhibited gross bias against him or to apply for revision of any order made  by  the Special Judge.  As the Act was  valid  in  its entirety  before the date of the Constitution, that part  of the  proceeding before the Special Judge, which, up to  that date, had been regulated by this special procedure cannot be questioned, however discriminatory it may 636 have been, but if the discriminatory procedure is  continued after  the  date  of the Constitution,  surely  the  accused person  may legitimately ask: Why am I to-day being  treated differently  from other persons accused of similar  offences in respect of procedure ?"   After holding that there was no nexus which connected the basis on which the supposed classification was founded  with the objects of the Act he went on to observe :-  "In the absence of a rational basis of classification,  as explained  above, there can be no justification,  after  the advent of the Constitution, for depriving the appellants  of the right to move the Court for transfer or for revision  or to obtain process for the attendance of defence witnesses or of  having the evidence of the witnesses recorded as  in  an ordinary trial ’Which is available to other persons  accused of similar offences and prosecuted according to the ordinary procedure  laid down in the Code of Criminal Procedure.   It is,  therefore, clear that in this case  the  discrimination continued  after the Constitution came into force  and  such continuation  of  the  application  of  the   discriminatory procedure to their cases after the date of the  Constitution constituted  a breach of their fundamental right  guaranteed

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by article 14 and being inconsistent with the provisions  of that article the special procedure became void under article 13  and as there is no vested right or liability in  matters of  procedure,  the  appellants are  entitled  to  be  tried according  to the ordinary procedure after the date  of  the Constitution.  Their complaint is not for something that had happened  before 26th January, 1950, but is for  unconstitu- tional discrimination shown against them since that date.   Indeed  in a sense the Special Judge’s jurisdiction  came to an end, for he was enjoined to proceed only according  to the  special  procedure, and that procedure,  having  become void as stated I above he could not 637 proceed  at  all as a Judge of a Special  Court  constituted under the impugned Act....... The point for decision now  is whether the continuation of -the procedure by the Act  after the  Constitution came into force operates to the  prejudice of the appellants and, as such, offends against their  newly acquired  fundamental  right  of  equal  protection  of  law guaranteed   by  article  14.   The  Constitution   has   no retrospective  operation  to  invalidate that  part  of  the proceedings  that  has  already been gone  through  but  the Constitution does not permit the special procedure to  stand in  the  way  of the exercise  or  enjoyment  of  post-cons- titutional  rights  and  must, therefore,  strike  down  the discriminatory procedure if it is sought to be adopted after the Constitution came into operation."   The view taken by my Lord the Chief Justice was that  the provisions  of  the  Constitution  relating  to  fundamental rights  have no retrospective operation and, do  not  affect the  criminal prosecution commenced before the  Constitution came into: force even though section 12 of the Bombay Act is held to be discriminatory and void.   I  have given not without reluctance  copious  quotations from the majority judgment because its meaning has been  the subject  of much controversy before us.  While on’  the  one hand,  Mr. Peerbhoy contends that the Act was  condemned  as bad by the majority because of the discriminatory provisions appearing  on the face of it and the question  whether  such provisions were applied in fact to the accused of that  case after  the  coming  into  force  of  the  Constitution   was considered entirely irrelevant the learned  Advocate-General urges that the court did not apply its mind to the  question whether  the  Act  should be declared  void  even  when  the discriminatory provisions are not applied.  The whole  trend and  the reasoning of the judgment to my mind point to.  the conclusion  that the court did not consider it necessary  to go  into the question whether the discriminatory  provisions were  applied  as th at question was irrelevant in  view  of their finding that the Act became 638 void after the coming into force of the Constitution on  the simple ground that it contained discriminatory provisions on the  face of it-.  There were four identical features  which are  common  in the two cases, namely absence  of  committal proceedings,  power  to  record only  a  memorandum  of  the evidence,  absence of a right to apply for transfer  or  for revision.  It is not easy to see how the right to apply  for a  transfer  or for revision could be  exercised  under  the Regulation after the 26th of January.  During the course  of cross-examination of 22 witnesses if the Tribunal  overruled the  objection of the accused or passed any  adverse  order, the  accused could not challenge it by way of revision,  nor if  it  showed any bias in the recording  of  the  evidence, could  the  accused  apply for transfer.   Indeed  there  is

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evidence  that  an order of the Tribunal dated the  15th  of December,  1949, was carried in revision to the High  Court, but  the revision was dismissed on February 27,  1950.   The office, it appears, noted that under section 7, clause 2  of the  Regulation  there  could not be any  revision  but  the learned  Chief  Justice in rejecting the  revision  petition merely  said  that be saw no reason to  interfere  "at  this stage".   I do not think that the order of  rejection  meant that the stage of interference was not appropriate and  that he  would have the right to interfere at a later stage,  say at the time of the appeal.  The learned Chief Justice  could not  have  been  unaware of the fact that  no  revision  was competent  against  an  order  of  the  Tribunal  under  the Regulation.   It is significant that this order  was  passed after the coming into force of the Constitution.   Similarly if  the  accused  had  asked  for  bail,  and  it  had  been refused,he could    not have been able successfully to  move the High  Court in revision against the order of refusal. It is  obvious therefore that just as in Lachmandas’s case  (1) the  procedure under the Regulation could not  be  continued without  eliminating the right to apply for transfer or  for revision, in the same (1)  [1952] S.C.R. 284. 639 way  the  trial of the petitioner could not  go  on  without these  discriminatory provisions after the 26th of  January. Again  the right to confirmation of the sentences passed  by the Tribunal could not be given effect to as the  Regulation definitely  negatived such a right.  Whether in  the  events that happened the question of confirmation did not arise  is besides the point.  It could well have arisen if a  sentence exceeding ten years bad been passed by the Tribunal.  I  can see no real ground for any distinction between  Lachmandas’s case(1)  and  the  present case.  My  learned  brothers  are certainly in a better position to interpret the decision  in Lachmandas’s case (1) and to say whether their intention was not   to   declare  the  Act  bad,  whether   or   not   its discriminatory  provisions  were  applied in  fact.   It  is impossible for me to go behind the actual words used in  the decision  and  my  conclusion is  based  entirely  upon  the language and the reasoning adopted in that case.  The  conclusion  I  have arrived at is  fortified  by  the observations of Mr. Justice Mukherjes in Anwar Ali  Sarkar’s case("), at page 331, " but when the statute itself makes  a discrimination  without any proper or reasonable basis,  the statute would be invalidated for being in conflict with  the equal  protection clause, and the question as to how  it  is actually  worked out may not necessarily be a material  fact for consideration." My learned brother Mr. Justice  Chandra- sekhara  Aiyar  also  emphasised in that  case  "  that  the question  which falls to be considered under article  14  is whether the legislation is discriminatory in its nature  and this  has  to be determined not so much by  its  purpose  or objects but by its effects" (page 349).  It will be convenient to refer to the West Bengal  case(") at  this stage.  In this case the accused who  were  charged with various offences committed by them in the course of  an armed  raid on the Jessop Factory at Dum Dum were  convicted by a Special Court appointed under section 5 (1) of the West Bengal (1) [1952] S.C.R. 710.   (2) [1952] S.C.R. 284. 640 Special  Courts  Act No. X of 1950.  The Full Bench  of  the Calcutta  High  Court which was moved by the  accused  under article  226 for the issue of a writ of certiorari to  quash

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the conviction and the sentence held that the Special  Court had no jurisdiction to try the case, as section 5 (1) of the Act  was void under article 32, as it denied to the  accused the equal protection of the laws enjoined by article 14.  On appeal  by the State the majority of six learned  Judges  of this  court  upheld  the view, my  Lord  the  Chief  Justice dissenting.    The  observations  of  the   learned   Judges constituting   the  majority  deal  effectively   with   the contentions  raised  in  the present case and  may  best  be reproduced in their own words:-  " Mahajan J -That the Special Act lays down  substantially different  rules for trial of offences and cases  than  laid down  in  the  general law of the land, i.e.,  the  Code  of Criminal  Procedure, cannot be seriously denied.  It  short- circuits that procedure in material particulars..........  Not  only  does  the  special  law  deprive  them  of  the safeguard  of the committal procedure and of the trial  with the help of jury or assessors, but it also deprives them  of the  right of a de novo trial in case of transfer and  makes them liable for conviction and punishment for major offences other  than  those for which they may have been  charged  or tried.......  To a certain extent the ’remedies to which  an accused person is entitled for redress in the higher  courts have been cut down.  Even if it be said that the statute  on the face of it is not discriminatory, it is so in its effect and  operation,  inasmuch  as  it  vests  in  the  executive government  unregulated official discretion,  and  therefore has to be adjudged unconstitutional."  ‘‘ Mukherjea J.-I agree with the Attorney-General that  if the  differences  are  not material, there may  not  be  any discrimination  in  the proper sense of the word  and  minor deviations  from  the general standard might not  amount  to denial of equal rights.  I find 641 it  difficult, however, to hold that the difference in  the procedure  that  has  been introduced  by  the  West  Bengal Special Courts Act is of a minor or unsubstantial  character which has not - prejudiced the interest of the accused.   The first difference is that made in section 6 of the Act which  lays down that the Special Court may take  cognizance of an offence without the accused being committed to it  for trial,  and that in trying the accused it has to follow  the procedure for trial) of warrant cases by Magistrates.  It is urged  by the Attorney-General that the elimination  of  the committal proceedings is a matter of no importance and  that the  warrant procedure, which the Special Court has  got  to follow,  affords a scope f or a. preliminary examination  of the  evidence  against  the  accused  before  a  charge   is framed.......    Under section 350 of the Criminal Procedure Code, when a case  after  being heard in part goes  for  disposal  before another  Magistrate,  the accused has the right  to  demand, before the second Magistrate commences the proceedings, that the witnesses already examined should be re-examined and re- heard.   This right has been taken away from the accused  in cases *here a case is transferred from one Special Court  to another  under  the provision of section 7  of  the  Special Courts Act.  Further the right of revision to the High Court does not exist at all under the new procedure, although  the rights under the Constitution of India are retained.  It has been pointed out and quite  correctly by one of the  learned counsel for respondents that an application for bail  cannot be made before the High Court on behalf of an accused  after the  Special  Court  has  refused  bail.   These  and  other provisions  of the Act make it clear that the rights of  the

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accused  have been curtailed in a substantial manner by  the impugned legislation ; and if the rights are curtailed  only in  certain  cases  and  not  in  others,  even  though  the circumstances   in   the  latter  cases.,  are   the   same, &,,question of discrimination may certainly arise.......  As I have said already 642 in the present case the discrimination &rises on the  terms of  the  Act itself.  The fact that  it  gives  unrestrained power to the State Government to select in any way it  likes the  particular  cases  or offences which  should  go  to  a Special  Tribunal and withdraw in such cases the  protection which  the accused normally enjoy under the criminal law  of the country, is on the face of it discriminatory."  "Das  J.-The elimination of the committal proceedings  and of  trial by jury (section 6), the taking away of the  right to  a de novo trial on transfer (section 7), the vesting  of discretion  in  the Special Court to  refuse to )  summon  a defence  witness if it be satisfied that his  evidence  will not  be material (section 8), the liability to be  convicted of  an  offence higher than that for which the  accused  was sent up for trial under the Act (section 13), the  exclusion of  interference  of  other-courts by  way  of  revision  or transfer  or under section 491 of the Code (section 16)  &re some of the glaring instances of inequality brought about by the impugned Act. "   Chandrasekhara  Aiyar  J.-Preliminary   inquiry   before committal to the sessions, trial by jury or with the aid  of assessors,  the  right of a de novo trial on transfer  of  a case  from one court to another, have been taken  away  from the accused who are to be tried by a Special Court."  "Bose J.-We find men accused of heinous crimes called upon to  answer  for  their lives and liberties.   We  find  them picked  out  from their fellows, and however  much  the  new procedure  may give them a few crumbs of advantage,  in  the bulk   they  are  deprived  of  substantial   and   valuable privileges  of defence which, others similarly charged,  are able to claim".  I  do  not  propose  to go into  the  question  that  dis- criminatory provisions were not as a matter of fact  applied to  the  petitioner’s case as contended for by  the  learned Advocate-General  for  the State.  I have  already  observed that the discriminatory provisions 643 stood  in the way of the petitioner even after the  26th  of January and prevented him from exercising the right to apply for  bail,  for  transfer or for ’revision and  this  in  my opinion is quite sufficient for holding that the  Regulation violates  article 14 and is, therefore, void  under  article 13.  I  do  not think that the  discriminatory  provisions  are severable  from  the rest of the Regulation.  Indeed  it  is doubtful   whether   the  Military   Governor   would   have promulgated  the Regulation in the truncated form  if  these provisions  are  taken  out.  For us to do so  would  be  to assume the power to legislate and to frame a new  Regulation in  place of the one promulgated by the  Military  Governor. Having  regard  to  the scheme and  objects  underlying  the Regulation,  a  severance of the  discriminatory  provisions would  affect the integrity of the Regulation  itself.   The object   of  expediting the trial will be  defeated  if  the discriminatory  provisions are eliminated.   The  Regulation stands  as  a  whole  and  falls  if  those  provisions  are eliminated.   In Attorney-General,for Alberta  v.  Attorney- General for Canada(1) the Privy Council had to deal with two

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parts  of the Act of the Alberta Bill of Rights  Act,  1946, Part I of which declared certain existing rights of  Alberta citizenship described therein and Part II provided a  method of  making effective the provisions of Part I by  conferring certain  powers on the province.  It was held that  Part  II was  ultra vires being beyond the powers of  the  provincial legislature  to  enact;  that  Part I of  the  Act  was  not severable,  that the whole Act hung together  and  therefore the whole was invalid.  I  hold that the trial held under the Regulation  is  void under  article  13,  read with articles 14  and  21  of  the Constitution,  and  the  conviction  and  sentence  of   the petitioner should be set aside.  Following the view taken in Lachmandas’s  case(1) I direct that the petitioner shall  be tried according to law.  This  order will govern petition No. 368 relating  to  the other petitioners. (1)  [1947] A.C. 503.    (2) [1952] S.C.R 710.                            644                           ORDER. BY  THE COURT:-As the Constitutional issues. raised  in  the petitions have also been raised in the appeals preferred  by the petitioners they have been dealt with in the appeals  by consent  of parties, and the petitions are  dismissed.   The constitutional  points  in the appeals having  been  decided against the appellant,; by the majority the appeals will  be heard  on  other  points  when the  appeals  are  ready  for hearing.                                   Petitions dismissed. Agent for the petitioners/appellants: Rajinder Narain. Agent for the respondent,: G. H. Rajadhyaksha.