AIR 1951 SC 124 : (1950) SCR 940 : (1951) CriLJ SC 391
(SUPREME COURT OF INDIA)
Janardhan Reddy and others Appellant
Versus
The State OF Hyderabad Respondent
(Before : M. H. Kania, C.J.I., Saiyid Fazl Ali, M. Patanjali Sastri, B. K. Mukherjea, S. R. Das And N. Chandrasekhara Aiyar, JJ.)
Criminal Misc. Petn. Nos. 71 to 73 of 1950,
Decided on : 14-12-1950.
Special Leave Petition—Scope of jurisdiction—Judgement passed by High Court of Hyderabad under the rule of H.E.H. Nizam of Hyderabad which was not part of territory of India before adoption of the Constitution of India—Supreme Court has no jurisdiction to entertain Special Leave Petition against the order of High Court of Hyderabad.
Counsel for the Parties:
Shri D. N. Print, Senior Advocate, (Shri K. B. Asthana, ,Shri Danial Latifi, Bhawa Shiv Charan Singh and Shri A. S. R. Chari:Advocates, with him), Instructed by Shri I. N. Shroff, Advocate for Petitioners
Shri M. C. Setalvad, Attorney General for India, and Shri Rama Raja Iyer, Advocate-General, Hyderabad (Shri G.N. Joshi, Advocate, with them), instructed by Shri P.A. Mehta, Agent-for the State.
JUDGMENT
Kania, C. J—These are three crimisc petns. asking for special leave to appeal to the S. C. under Art. 136, Const. Ind.
2. All the accused were charged with being members of the Communist Party wedded to the policy of overthrowing the existing Govt. at Hyderabad by violence and establishing in its place a communist regime. It is alleged that they demanded subscriptions towards their communist organization and some of the villagers who did not meet their demands were abducted on 21-9-1948 and murdered. They were charged with various offences including murder before a special tribunal established under the regulations promulgated by the Military Governor under the authority of H. E. 11. the Nizam and convicted and sentenced to death on the 9th, 13th and 14th of August 1949 by separate judgments. The pettioners appealed from these judgments, to the Hyderabad H. C. and the H. C. by its judgments dated the 12th, 13th and 14th December, 1949, respectively, dismissed the appeals. The pettioners applied to the H. C. for a certificate to appeal to the Judicial Committee of the Hyderabad State on 21-1-1950. It appears that H. E. H. the Nizam issued a firman on 23 -11-1949 stating that the proposed Const. Ind. was suitable for the Government of Hyderabad and he accepted it as the Const. of the Hyderabad State as one of the States of part B in Sch. 1. On 26-1-1950 Const. Ind. became applicable to the Union of India and the Part B States. The petn. originally filed for and certificate for leave to appeal to the Judicial Committee of the P. C. of the Hyderabad State was, by leave of the Ct., amended, and made into a petn. under Art. 134, const. Ind. A D. B. of the H. C. at Hyderabad considered the petns. and dismissed them on the ground that no such petns, lay under Art. 134 and they also declared that on the merits no case was made out for and certificate as asked by the pettioners The petnrs, have now filed their petns. to this Ct. under Art. 136, Const. Ind. for special leave to appeal from the judgments of the H. C. dated the 12th, 13th and 14th of December 1949.
3. Two questions arise for consideration. The first is, whether any appln, under Art,136, under the circumstances of the case, can be made to the S. C. and, the second is, whether on a consideration of the facts; if it has jurisdiction to entertain the petns., the Ct. should grant special leave. The first question depends on the construction of the relevant Articles in Const. Ind. Under Art. 374 (4), on and from the commencement of this Const:the jurisdiction of the authority functioning as P. C. in a State specified in Part B to Sch. 1, to entertain and dispose of appeals and petns. from or in respect of any judgment, decree or order of any Ct. within that State ceased, and all appeals and other proceedings pending before the said authority at such commencement stand transferred to and have to be disposed of by the S C. This sub-clause thus abolishes the jurisdiction of the P. O. of the Hyderabad State and after the Const. Ind. came into force that body and its jurisdiction altogether ceased. On the facts before us, it is clear that as no proceeding or appeal in respect of these judgments of the Hyderabad H. O. was pending before the Hyderabad P. O. before its abolition, nothing got transferred to the S. C. by operation of this sub-clause.
4. It was argued on behalf of the petrs. that on 16-1-1950 they had a right to move the H. O. at Hyderabad for a certificate granting them leave to appeal to the P. C. of the Hyderabad State. In fact such petns were pending on that day. It was, therefore, urged that a right to appeal which existed on 25-1-1950 cannot be impliedly taken away by the Const. Ind. being made to the State of Hyderabad. It was pointed out that in respect of convictions all persons who had rights of appeal, or who had time to file their appls. for a certificate, as also persons whose petns. were pending before the Hyderabad H. C. asking for such certificates and which had not been disposed of because of the congestion of work in the H. C. would lose their right to appeal to the higher Ct. if Art. 136 is not construed so as to give a right of appeal to the S. C. of India. It was pointed out by the Attorney-General, appearing on behalf of the State, that if a wide construction is given to Art.136 it will not only permit persons who are stated to be under such hardship to apply for leave under Art. 136 but several other rights will be created. Such rights will arise not only in criminal cases but in civil cases also and they can be exercised without any limitation as to the period within which the appln. has to be made, with the result that the old judgments may also be called into question. Moreover, on the wider construction of Art 136, judgments which had become final in those States in which there existed no Ct. like the P. C. to whom appeals could lie from the judgments of their H. Cs. will be subject to appeal though no such appeal lay before. It was, therefore, argued that on the ground of convenience the balance, if at all, is against the argument advanced by the pettioners It was strenuously urged that this is a wrong approach to the question altogether. Articles of the Constitution have to be construed according to their plain natural meaning and cases of hardship should not be brought to bear on the natural construction. Hard cases should not be permitted to make bad law. In our opinion, this argument of the Attorney-General is sound. The question of hardship cannot be and should not be allowed to affect the true meaning of the words used in the Constitution. It is, therefore, proper to approach the Articles irrespective of considerations of hardship.
5. In order to decide whether on the facts of this case, the S. C. has jurisdiction to grant special leave, it is necessary only to consider Arts. 133, 134, 135 and 136, Const. Ind. Article 133, in substance, retains the old provisions of C. P. C., in respect of appeals to P. C., from H. Cs. in civil matters. Under Art.134, it is provided that an appeal shall lie to S. C. from any judgment, final order or sentence in a criminal proceeding of a H. C. in the territory of India if the H. C, . . . (then follow three contingencies under which such appeals can lie). In Art.133 also the words “in the territory of India” are used. Article 135 provides for matters to which the provisions of Art. 133 or 134 do not apply. It is there provided that until Parliament by law otherwise provides, the S. C. shall also have jurisdiction and powers with respect to any matter to which the provisions of Art. 133 or 134 do not apply, if jurisdiction and powers in relation to that matter were exercisable by the F. C. immediately before the commencement of this Constitution under any existing law. This Article was included in the Constitution to enable the S. C. to exercise jurisdiction in cases which were not covered by Arts.133 and 134, in respect of matters where the F. C. had jurisdiction to entertain appeals etc. from the H. Cs. under the previously existing law. This is obviously a provision to vest in the S. C. the jurisdiction enjoyed by the F. C., under the Abolition of Privy Council Jurisdiction Act, 1949. It may be mentioned that the jurisdiction of the P. C., to entertain appeals from H. Cs. except those which were already pending before it on 10-10-1949, was taken away by this Act. Provision had, therefore, to be made in respect of appeals which were already pending or which were not covered by the provisions of Arts. 133 and 134. Article 136, Const. Ind. is in these terms:
“136. (1) “Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India”.
(2) . .. . ..”
The expression “territory of India” is defined in Art. 1 in these terms:
1. “The territory of India shall comprise
(a) the territories of the States (meaning the States mentioned in Parts A, B and C of the First Schedule),
(b) the territories specified in Part D of the First Schedule, viz. The Andaman and Nicobar Islands) and
(c) such other territories as may be acquired.”
6. The question for consideration is whether on the facts of the present case the S. C. can grant special leave to appeal from a judgment, sentence or order which was passed and made by the Hyderabad H. C. before 26-1-1950. The important fact to be borne in mind is that the Hyderabad Cts. were not Cts. within the territory of India when they pronounced their judgments on the12th, 13th and 14th of Decr. 1949. It is urged on behalf of the pettioners that as a narrow construction will take away the valuable rights of appeal which had existed in persons in the position of pettioners when the Const. Ind. was directed by H. E.H. the Nizam by his firman to be applicable to the Hyderabad State on 26-1- 1950, it should be held that as no substantive right was provided in the Constitution separately, the words of Art. 136 were wide enough to give such right to the petrs. On the other hand, it has been argued by the learned Attorney-General that every legislation is primarily prospective and not retrospective. A right of appeal has to be given specifically by a statute and it is not merely a procedural right. If, therefore, there exists no right of appeal under the Constitution such right cannot be inferentially held to come into being on the application of the Constitution to the Hyderabad State. For this, reliance was placed on the decision of the P. C. in Delhi Cloth and General Mills Ltd. v. Income-tax Commissioner, Delhi, 54. I. A. 421 and Colonial Sugar- Refining Co. Ltd. v. Irving, (1905) A. C. 369, (74 L. J. P. C. 77).
7. In our opinion, the contention of the Attorney- General on this point is correct. There appears no reason why in the present case the normal mode of interpreting a legislation as prospective only should be departed from. It was contended by Mr. Pritt that the interpretation sought to be put by the State on Art. 136 will require the insertion of the word ‘hereafter’ in the clause, for which there was no justification. We are unable to accept this contention because prima facie, every legislation is prospective and even without the use of the word ‘hereafter’ the language of Art. 136 conveys the same meaning. It should be noticed in this case that before 26-1-1950 the Govt. of H. E. H. the Nizam was an independent State in the sense that no Ct. in India or the Judicial Committee of the P. C. in London had any jurisdiction over the decision of the Hyderabad State Cts. To give the S. C. of India jurisdiction over the decisions of Cts. of such a State, one requires specific provisions or provisions which necessarily confer jurisdiction to deal, on appeal, with the decisions of such Cts. It is common ground that there is no express provision of that kind. There appear to us also no such necessary circumstances which on reasonable construction should be treated as impliedly giving such right of appeal. Indeed the words “territory of India” lead to a contrary conclusion. Under the words used in Art. 136 the Cts. which passed judgments or sentence must be Cts. within the territory of India. The territory of that Govt. of H. E. H. the Nizam was never the territory of India before 26-1-1950 and, therefore, the judgment and sentence passed by the H. C. of H. E. H. the Nizam on the 12th, 13th and 14th Decr 1949, cannot be considered as judgments and sentence ‘passed by a Court within the territory of India.’ On that short ground alone it seems that the petnrs.’ contention must fail.
8. It was argued by Mr. Pritt on behalf of the pettioners that if such construction were put, the territory of the Province of Bombay also may be excluded from the operation of Art. 136. The answer however is that a right to file an appeal from the judgments of the H. C. at Bombay in both civil and criminal matters existed under the Civil P. C., Criminal P. C. and the Letters Patent of the H. C. before 26-1-1950. Such right of appeal to the Judicial Committee of the P. C. which previously existed, was transferred to the F. C. by the appropriate legislation and eventually by Art. 135 to the S. C. Therefore by the interpretation, which we think is the proper interpretation of Art. 136, Const. Ind. the right of appeal from the judgment of the Bombay H. C. is not taken away. It is true that having regard to the words used in Art. 136 which can bear a wider meaning a right to apply for leave to appeal to the S. C. is given in respect of decisions not only of’ H. Cts. but of other tribunals also. That larged right, if it did not exist before 26-1-1950, can be legitimately construed as newly conferred by Art. 136 and such construction does not give rise to any anomaly. In our opinion, therefore, as the judgments were pronounced and sentences were passed in all these matters before us by the H. C. of Hyderabad, which was in the territory of H. E H. the Nizam and which territory was not the territory of India before 26-1-1950, and as those judgments were passed before the Constitution come into force they do not fall within the class of judgments against which special leave to appeal to the S. Ct. can be asked for under Art. 136, It is obvious that such judgments are not covered under Art. 135 Const. Ind.
9. In our opinion, this Ct. has therefore, no jurisdiction to entertain these petns. for special leave to appeal against such judgments of the H. C. of Hyderabad under Art. 136 of the Constitution, Cases like those of the petrs. are thus not covered by Art.134,135 or 136 and therefore the S. C. in the present state of the legislation is unable to render any assistance to them. An omission to provide for such relief in the Constitution cannot be remedied by the S. C. and assumption of jurisdiction which is not warranted by the clear words of Arts.134, 135 or136 will be tantamount to making legislation by the S. C. which it is never its function to do.
10. The petns. under the circumstances, are rejected.
