- (1.) Syed Qasim Razvi, the appellant in this appeal, was one of the accused in what is 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, Secundarabad against the appellant and six other persons. The Tribunal was constituted in accordance with the provisions of the Special Tribunal Regulation (Regulation V of 1358F) and as provided for in Sec. 2 of the Regulation, it consisted of three members appointed by the Military Governor. Under Sec. 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 6-10-1949; but as the charge-sheet had been submitted on a previous date, another order was passed on 8-10-1949 validating the presentation of the charge-sheet. The trial commenced before the Special Tribunal on 24-10-1949 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 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 22-11-1949. On 29-11-1949 the accused was examined under S. 273, Hyderabad Criminal P.C. which corresponds to S. 342, Indian Criminal P.C., and on5th of December following charges were framed against him under Ss. 123, 124, 330 and 177 read with S. 66, Hyderabad Penal Code. The cross-examination of 18 prosecution witnesses was finished before 26-1-1959, and the rest of the witnesses were cross-examined after that date. The accused was examined again on 26-2-1950.
(2.) By their judgment dated 11-9-1950, the Special Tribunal convicted the appellant on all the charges mentioned above and sentenced him to 2 years' rigorous imprisonment under each of the Ss. 123, 124 and 177 read with S. 66 and to 7 years' rigorous imprisonment under S. 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 13-4-1951 allowed the appeal to this extent only, namely, that it acquitted the accused of the charge under S. 123 of the Hyderabad Code, but otherwise dismissed the appeal and affirmed the conviction and sentence passed by the Special Tribunal. On 6-8-1951 the High Court gave leave to the accused to appeal to this Court under Arts. 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 Art. 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 referred to above and for releasing him on the ground that the proceedings before the Special Tribunal became void after 26-1-1950 as they conflicted with the provisions of Arts. 14 and 21 of the Constitution. As the trial became bad in law after 26-1-1950, the resulting conviction and sentence were, it is said, illegal also, and the appellant is entitled to be released from his imprisonment.
(3.) 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 Art. 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.;