LexJANARDAN REDDY AND OTHERS versus THE STATE OF HYDERABAD AND OTHERS
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1961 March 16. 344 SUPREME COURT REPORTS JANARDAN REDDY AND OTHERS V. [1951] THE STA TE OF HYDERABAD AND OTHERS. KULLURI YELLADU AND OTHERS v. THE STATE OF HYDERABAD AND OTHERS. MUNGALA SAMUEL AND OTHERS V. THE STATE OF HYDERABAD AND OTHERS. [SAIYID FAzL Au. MEHR CHAND MAHAJAN, :MUKHERJEA, DAS and (HANDRASEKHARA AIYAR JJ.] Constitution of India, Art. 32-Special Tribunals Regulation (Hyderabad), ss. 2, 7-Conviction and death sentence by Special Tribunal-Confirmation by High Court before 26th January, 1950- App!ication under Art. 32 for writs of prohibition, certiorari and habeas corpus-Maintainability-Detention under conviction by criminal court-Applicatio1t for habeas corpus-Jurisdiction of con- victing court, whether can be gone into-Effect of confirmation of conviction on appcal-Misjoinder of charges-Omission to provide counsel for accused-Validity of conviction-Interference under Art. 32. There is a basic difference between want of juri<diction and an illegal or irregular exercise of jurisdiction, and mere non-com- pliance with rules. of procedure (e. g., misjoinder of charges) cannot be made a ground for granting a writ under Art. 32 of the Constitution. The defect, if any, can, according to the procedure established by law, be corrected only by a court of appeal or revision, and if the appellate court which was competent to deal with the matter has considered the matter and pronounced its judgment, it cannot be reopened in a proceeding under Art. 32 of the Constitution. Where, some time after the pronouncement of a sentence of death by hanging by a Special Tribunal of the Hyderabad State and pending confirmation of the sentence by the High Court of Hyderabad, a Regulation was passed to the effect that notwith- standing anything contained in any law for the time being in force any sentence of death passed by a Special , Tribunal shall be carried into execution by hanging: Held, that the Regulation S.C.R. SUPREME COURT REPORTS 345 must be taken to have retrospective t'ffect, as the mode of execu- l!l51 tion of a sentence cannot be regarded as a matter of substantive law, and. the sentence for hanging cannot be held to l>e illegal Janardan Redd.I/ even assuming that under the law which was in force in Hyderabad and Othera at the time the sentence was passed by the Special Tribunal, v. sentences to death could be carried out only by decapitation. ~n The State of any event, as the Hi.E(h Court which upheld the conviction had Hydembrrd and the power to impose the sentence of death by hanging under the Otoo·s. Regulation, no relief could be granted to the accused under Art. 32 of the Constitution. Section 7(2) of the Special Tribunals Regulation passed by the Military Governor of Hyderabad covered all those cases where manzuri and tashih were contemplated under the old law arid sentences of death passed by a Special Tribunal could therefore be executed without the assent or approval of H.E. H. the Nizam. The result of s. 271 of the Hyderabad Criminal Procedure Code, (which corresponds to s.340 of the Indian Criminal Procedure Code) read along with the Rules and Circular Orders issued by the Hyderabad High Court is : (i) that it cannot be laid down as a rule of law that in every capital sentence where the accused is unrepresented the trial should be held to be vitiated; and (ii) that a court of appeal or revision is not powerless to interfere if it is found that the accused was so handicapped for want of legal aid that the proceedings against him may be said to amount to negation of a fair trial. The writs referred to in Art. 32 must obviously be correlated to one or more of the fundamental rights conferred by Part III of the Constitution and can be made only for the enforcement of such rights. The petitioners who were convicted by a Special Tribunal of Hyderabad of murder and other offences and sentenced to death by hanging and whose convictions and sentences had been con- firmed by the Hy'derabad High, Court before the 26th January, 1950, applied to the Supreme Court under Art. 32 of the new Constitution for the following reliefs: (i) a writ ih 'the nature of certiorari calling upon the Government of Hyderabad and the Special Judge to produce the records of the case and show cause why the convictions and sentences should not be quashed, (ii) for a writ of prohibition directing the Government and Special Judge not to execute the petitio
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