Judgment Fazl Ali J. - These are six petitions which have been presented so this Court on behalf of three groups of persons in the following circumstances. 2. On 30-10-1948, the Military Governor of Hyderabad by virtue of the powers delegated to him by H. E. H. the Nizam enacted the Special Tribunals Regulation (No. 5 [V] of 1358-F), which was amended by several later Regulations issued on 22-5-1949, 10-7-1949, 23rd July & 30-10-1949. The Regulation provided among other things that the Military Governor may constitute & Special Tribunal or Tribunals, each consisting of 3 members appointed by him, & that he may by general or special order direct that these Tribunals shall try any offence, whether committed before or after the commencement of the Regulation, or any class of offences. Section 8 of the Regulation empowered the Military Governor to direct, by order, that in such circumstances & under such conditions, if any, as may be specified in the direction, any power or duty conferred or imposed upon him by the Regulation may be exercised or discharged by any other authority. In accordance with the Regulation, certain Tribunals were constituted, & one of the Tribunals Tribunal A for Nalgonda dist.- proceeded to try certain cases made over to it by the Civil Administrator of Nalgonda under the powers vested in him by the Military Governor. Among the cases tried by this Tribunal were also three cases in which the petnrs. were concerned, these being regd. as criminal cases Nos. 14, 17 & 18 of 1949. These cases were based on three charge-sheets submitted by one Mr. Hanumantha Naidu, a senior police officer of Nalgonda dist., one of which was No.14 dated 7-4-1949, & the Other two were Nos. 14 & 15 dated 20-7-1949. In these charge-sheets, the accused were generally refd. to as "Communists wedded to the policy of overthrowing the Govt. by violence & setting up in its place Communist Raj." & the specific cases made out against them were briefly as follows. In the first case (criminal case No. 14 of 1949), the charge-sheet stated that the accused went to a certain village in Nalgonda dist. to as "Communists wedded to the policy of overthrowing the Govt. by violence & setting up in its place Communist Raj." & the specific cases made out against them were briefly as follows. In the first case (criminal case No. 14 of 1949), the charge-sheet stated that the accused went to a certain village in Nalgonda dist. on 21-9-1948 "in khaki uniform & holding unnotified firearms," caught hold of four persons as they bad not paid the full subscription demanded of them, decoyed to the outskrits of the village & then "killed them by cutting their throats." In the second case (Criminal Case No. 17), it was stated that on 6-4-1949, at about 9 A.M, two of the accused came to a certain village & began to fire their guns, but when "the public" approached them asking them to surrender they ran away & joined the other persons accused in the case. Later on, all the accused "marched on the villagers" & opened fire at them indiscriminately with the result that one of them received an injury in his right thigh which subsequently proved fatal, & another received a minor injury on his left hand. The version given at the trial in this case was slightly different & shows that the two accused who had visited the village were chased by 50 or 100 persons to a place called Madireddychelka where the other accused joined them, & after parleying with the chasers, accused 4 fired & hit one of the villagers on the thigh & the latter died. Thereupon the accused chased the remaining villagers, firing their guns, & one of the bullets grazed the middle finger of one of the villagers & caused a slight injury to it. In the third case (criminal case No. 18), the facts were stated to be these: On the 15th May, at about midnight, the accused visited Kasthala village, carrying firearms & dressed in khaki uniform. They got upon the terrace of one Kankayya where one Natala Rama Reddy was sleeping, caught hold of him & took him forcibly to the outskirts of the village in spite of the protests of a number of villagers who had followed, & "killed him by firing gunshots at him." 3. Upon these facts, the trial of the petnrs. They got upon the terrace of one Kankayya where one Natala Rama Reddy was sleeping, caught hold of him & took him forcibly to the outskirts of the village in spite of the protests of a number of villagers who had followed, & "killed him by firing gunshots at him." 3. Upon these facts, the trial of the petnrs. proceeded, & they were ultimately convicted of murder & sentenced to death, & also convicted of certain other offences including the offence of carrying firearms without licenses & sentenced to various terms of imprisonment. After their conviction, the petnrs. appealed to the Hyderabad H. C., but their convictions & sentences were confirmed. Thereafter, they tried to obtain the leave of the H. C. for appealing to the Judicial Committee of Hyderabad, but, while their applns. were still pending, the Const. Ind. came into force & since the Judicial Committee ceased to function under the new Constitution they amended their original appln. by asking for leave to appeal to this Ct. under Art.134 (c) of the Constitution. This appln. being unsuccessful, they applied to this Ct. for special leave to appeal, but that appln. was dismissed on the ground that this Ct. had no jurisdiction under Art. 186 of the Constitution to hear an appeal from a judgment delivered by the H. C. at Hyderabad before 26-1-1950, since that Ct. was not within the territory of India. The petnrs. then made applns. to the H. C. under Art. 226 of the Constitution & those applns. having been rejected, they filed two sets of petns. in this Ct. one under Art. 82 of the Constitution, & the other for special leave to appeal against the order of the H. C. refusing to grant them relief under Art. 226. 4. The main points urged by Mr. Pritt, who appealed before us on behalf of the petnrs., were as follows: (1) The trial of the petnrs. by the Special Tribunal was without jurisdiction. (2) In criminal cases Nos. 17 & 18 of 1949, there was no fair trial, inasmuch as the persons accused in those cases were not afforded any opportunity to instruct counsel & they had remained undefended throughout the trial. (3) The trials in question were illegal by reason of misjoinder of charges. by the Special Tribunal was without jurisdiction. (2) In criminal cases Nos. 17 & 18 of 1949, there was no fair trial, inasmuch as the persons accused in those cases were not afforded any opportunity to instruct counsel & they had remained undefended throughout the trial. (3) The trials in question were illegal by reason of misjoinder of charges. (4) At the time of the passing of the sentence, the sentence of death could be lawfully executed by decapitation only & not by hanging & hence the sentence of death by hanging passed upon the accused in the first case was illegal. (5) The sentence of death could not be executed without the assent or the approval at H. E. H. the Nizam which had not yet been obtained. 5. The last 3 points seem to us to have very little substance & may be shortly disposed of. 6. It appears that in all the three cases, besides being charged with murder, noting & certain other cognate offences, which on the face of the record appear to have been committed in the course of the same transaction, the petnrs. were also charged with carrying unlicensed firearms. It was contended on behalf of the petnrs. that the offence of carrying unlicensed firearms was wholly unconnected with the other offences & could not be said to have been committed in the course of the same transaction. It seems that this very point was raised in the H. C., but it was negatived, firstly on the ground that there was no misjoinder of charges & no violation of the provisions of the Cr. P. C., secondly, on the ground that no prejudice had been caused by the so-called misjoinder. The entire argument on behalf of the petnrs. was based on the case of Subrahmanya Iver v. King-Emperor, 28 I. A. 257. That case had somewhat peculiar features, because the accused was tried for no less than separate offences in contravention of the provisions of S. 934, Cr. The entire argument on behalf of the petnrs. was based on the case of Subrahmanya Iver v. King-Emperor, 28 I. A. 257. That case had somewhat peculiar features, because the accused was tried for no less than separate offences in contravention of the provisions of S. 934, Cr. P. C. & in these circumstances it was observed by the P. C. that the mischief sought to be avoided by the section having been committed, "the effect of the multitude of charges before the jury had not been averted by dissecting the verdict afterwards & appropriating the finding of guilt only to such parts of the written accusation as ought to have been submitted to the jury. " The case has been discussed, explained & distinguished in a number of cases, & it must be read with the subsequent decisions of the P. C, in Abdul Rahman v. King-Emperor, 641. A. 96 & in Bala Lal v. Emperor, 39 Cr. L. J. 452, which have been understood by some of the Indian Cts. to have greatly modified & restricted the very broad rule which at one time there was a tendency to deduce from certain general observations made by the P. C. It may be that on a more appropriate occasion we may have to review the code law on the subject & lay down the true scope of the pronouncements made by the P. C. in the case refd. to above & the effect which in law the misjoinder of charges would have upon the trial. But, for the purpose of the present case, it is sufficient to point out that even if we assume that there was some defect in the procedure folld. at the trial, it does not follow that the trial Ct. acted without jurisdiction. There is a basic difference between want of jurisdiction & an illegal or irregular exercise of jurisdiction, & our attention has not been drawn to any authority in which mere non-compliance with the rules of procedure has been made a ground for granting one of the write prayed for. In either case, the defect, if any, can according to the procedure established by law be corrected only by a Ct. of appeal or revn. Here, the appellate Ct. which was competent to deal with the matter has pronounced its judgment against the petnrs. In either case, the defect, if any, can according to the procedure established by law be corrected only by a Ct. of appeal or revn. Here, the appellate Ct. which was competent to deal with the matter has pronounced its judgment against the petnrs. & the manner having been finally decided is not one to be reopened in a proceeding under Art. 32 of the Constitution. 7. The fourth point raised on behalf of the petnrs. is not only a highly technical one but is also entirely devoid of merit. A reference to the Hyderabad Penal Code shows that in S. 243, which deals with the offence of murder, all that is stated is that death is one of the penalties. That section does not state how the sentence of death is to be executed. When the turn to the Hyderabad Cr. P. C. we find that S. 311, which it the relevant section, runs as follows "When an order of death sentence or any other sentence has been submitted to the H. C. for ratification (tashih) the Sessions Ct. shall, on receiving the order of ratification or other order of the H.C. thereon, cause such order to be carried into effect by issuing & warrant or taking such other steps as may be necessary or expedient." In this section also, no mention is made as to how the sentence of death is to be executed, but in Sch. IV of the Code, in the form prescribed for the warrant of execution of a death sentence (Form No. 99) the concluding sentence runs as follows ; ".. .. . you shall hand over the accused . . . . to the executioner so that the latter may separate the head from the body of the said prisoner in such a way that his life may be extinct & that the execution of this order may be reported to the H. C." In the first case (criminal case No. 14 of 1949), the sentence was "death by hanging," but in the other two class the accused were simply sentenced to death, without any indication as to how the sentence was to be executed. It has been argued that in view of the provisions of the Hyderabad Cr. P. C., the sentence of death by hanging was not strictly appropriate. It has been argued that in view of the provisions of the Hyderabad Cr. P. C., the sentence of death by hanging was not strictly appropriate. But, however, that may be, we find that on 30-10-1949, i.e., sometime after the pronouncement of the sentences by the Special Tribunal & before they were confirmed by the H. C., the Special Tribunals Regulation was amended & a specific provision was made to the following affect : "2-B. Notwithstanding anything contained in any law for the time being in force. (i) any sentence of death passed by & Special Tribunal shall be carried into execution by causing the person sentenced to be hanged by the neak until he is dead, (ii) warrants of commitments under sentence of death, warrants of execution of a sentence of death & any other instruments issued by a Special Tribunal. . . . . .shall be issued in such form as the Special Tribunal thinks fit." Apparently, these provisions applied to all sentences which had remained unexecuted or were to be executed at the data of the amending Regulation, & therefore they should govern the case of the petnrs. also. In our opinion, they must be taken to have retrospective effect, because the made of the execution of a sentence can hardly be regarded as a matter of substantive law or something which would affect any substantive rights. In any event, the H. C., which upheld the conviction, had the power to inflict the sentence of death by hanging under the amended Regulation, therefore this point does not properly arise in a matter involving the question whether any relief under Art. 32 of of the Constitution should be granted. 8. The fifth paint also does not appear to us to have much merit. The determination of this point is said to rest upon the proper interpretation of the word "manzuri," which is used in Ss. 20, 302, 307 & 309 of the Hyderabad Cr. P. C. S. 20, which is the most important section, runs as follows : "Every Sss. The fifth paint also does not appear to us to have much merit. The determination of this point is said to rest upon the proper interpretation of the word "manzuri," which is used in Ss. 20, 302, 307 & 309 of the Hyderabad Cr. P. C. S. 20, which is the most important section, runs as follows : "Every Sss. J. may pass any sentence authoried by law but such sentence shall not he carried into effect until (1) in the case of a sentence of ten years imprisonment or more the appropriate Bench of the H. C. (2) in the case of life imprisonment the Govt., & (3) in the case of death sentence H. E. H. the Nizam shall have assented thereto (given manzuri))." S. 302 (1) states that in certain cases, execution of sentence shall be stayed until manzuri in accordance with S. 20 is given. S. 307 deals with cases where the H. C. affirms a death sentence or a sentence of life imprisonment & provides that after such confirmation, the opinion of the H. C. together with the file of the case shall be forwarded for tashih (rectification or ratification) to the Govt. within one week & the sentence shall not be carried into effect until manzuri is obtained as provided in S. 20. S. 308 runs as follows : "When the H. C. thus forwards any file for ratification (tashih) H. E. H. the Nizam or the Govt. as the case may be shall be empowered (a) to uphold the sentence of the H. C. (b) to substitute any other penalty for the same, (c) to set the prisoner at liberty, (d) to maks any other appropriate order." S. 309 provides that after the manzuri is obtained in the manner already stated the Registrar of the H. C. shall send a copy of the order to the Sessions Ct. for carrying it into effect. It will be noticed that there are two different wards used in these sections, viz., manzuri & tashih. Manzuri literally means approval or acceptance, but, in the context in which it occurs, confirmation would seem to convey adequately the sense underlying it. Tashih means rectification or correction, & conveys the sense that the superior authority named in S. 308 may either uphold the sentence or revise it in the manner stated therein. 9. Manzuri literally means approval or acceptance, but, in the context in which it occurs, confirmation would seem to convey adequately the sense underlying it. Tashih means rectification or correction, & conveys the sense that the superior authority named in S. 308 may either uphold the sentence or revise it in the manner stated therein. 9. Now, the important point to be considered is in what way the provisions to which reference had been made, have been affected by the Regulations issued by the Military Governor. A reference to these Regulations will show that in S. 7 of the original Regulation, the following words have been substituted : "7 (2) . . . . . no sentence of a Special Tribunal shall be subject to confirmation (tausiq is the vernacular expression used here.) (3) The Military Governor may on such conditions, if any, as he thinks fit, suspend, remit, reduce, or alter the nature of, any sentence passed by a Special Tribunal, or any sentence substituted by the H. C. on an appeal under sub-s. (2) for any sentence so passed." It was contended by the learned Attorney-General that these provisions cover all those cases where manzuri tashih were contemplated under the old law. On the other hand, it was contended on behalf of the petnrs. that manzuri was a peculiarly apt expression when used with reference to a ruler, & the primary sense conveyed by it was that no sentence was & good sentence without the approval or sanction of the monarch. A mere reference to s. 20 will show that the word manzuri has not been used with reference only to H. E. H, the Nizam, but it has also been used with reference to the H. C. & the Govt. & therefore it is difficult to hold that the word bears the special meaning attributed to it on behalf of the petnrs. In the context in which it is used, it has no other meaning than the act of confirmation, & the new word, tausiq, which has been used in the Regulation, & which literally means confirmation, appears to convey the same sense as the word manzuri. It was also contended on behalf of the petnrs. that the use of the word hakim in connection with confirmation in one of the amending Regulations could not have been intended to cover confirmation by H. E. H, the Nizam. It was also contended on behalf of the petnrs. that the use of the word hakim in connection with confirmation in one of the amending Regulations could not have been intended to cover confirmation by H. E. H, the Nizam. But since hakim literally means a ruler or an authority, we are not inclined to attach much importance to the distinction sought to be drawn between hakim & ruler. It is quite plain that one of the objects of the Regulations was to simplify procedure & expedite trials, & the interpretation which is suggested by the learned Attorney-General seems to be in conformity with those objects. 10. Having dealt with these minor points, we shall now advert to the first & second points, which appear to us to be the only serious points urged in this case. In urging the second point, which arises only in criminal cases Nos.17 & 18 (covered by petns. Nos. 13 & 14 under Art. 32), it is contended on behalf of the petnrs. that the whole trial in these cases was bad, because the accused were denied the right of being defended by a pleader. The petns. with which we are dealing, do not recite any. facts to support this point. There are however the following allegations made in paras. 2 & 4 of the affidavits filed on behalf of the petnrs : "2. All this time I was not allowed to communicate with my relations & friends. Before I was brought before the Special Tribunal on 3-8-49, during the trial or afterwards I never saw any of my friends or relations, whether in the lookup, the Ct. or in the jail due to circumstances best known to the police. * * * * * 4. The Ct. never offered to facilitate my communication with my relations & friends or to adjourn the case or to appoint counsel at State expense for my defence, In fact they said they would not adjourn the case under any circumstances. Being ignorant I did not know that I had any right to ask for any of these things." 11. In arguing this part of the case, Mr. Pritt relied on certain American cases, especially on Powell v. Alabama, 287 U. S. 45, in which the S. C. of America in reported to have observed as follows : "In a capital case where the deft. In arguing this part of the case, Mr. Pritt relied on certain American cases, especially on Powell v. Alabama, 287 U. S. 45, in which the S. C. of America in reported to have observed as follows : "In a capital case where the deft. is unable to employ counsel, & is incapable of adequately making his own defence because of ignorance, feeblemindedness, illiteracy or the like, it is the duty of the Ct. whether requested or not, to assign a counsel for him as a necessary requisite of due process of law. " 12. That the assignment of a counsel in the circumstances mentioned in the passage is highly desirable, cannot be disputed. But the question raised before us is whether in law non-assignment of a counsel would vitiate the trial. It seems to us that in dealing with the point, we cannot rest our judgment wholly on American precedents, which are based on the doctrine of due process of law, which is peculiar to the American Constitution, & also on Certain specific provisions bearing on the right of representation in a criminal proceeding. The provision which is material to the contention raised before us is S. 271 of the Hyderabad Cri. P. C., which corresponds to S. 340, Cri. P. C., which runs as follows : "Any person accused of an offence before a criminal Ct. or against whom proceedings are instituted under this Code in any such Ct. may of right be defended by a pleader." 13. This provision must undoubtedly be construed liberally in favour of the accused & must be read along with the rules made by the H. Cts. & the circular orders issued by them enjoining that where in capitol cases the accused has no means to defend himself, a counsel should be provided to defend him. The proper view seems to us to be : (1) that it cannot be laid down as a rule of law that in every capital case where the accused is unrepresented, the trial should be held to be vitiated ; & (2) that a Ct. of appeal or revn- 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. 14. of appeal or revn- 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. 14. Passing now to the facts of the cases before us, it appears that in criminal case No.14, the accused persons concerned were defended by a pleader, but those concerned in cases Nos. 17 & 18 were not represented at all by any 1awyer. Further a reference to the docket-sheets in case No. 17 Shows that the accused in case No. 17 were brought into Ct. on 3-8-1949, & they were informed on that day that the case would be heard on 6-8-1949, & that they must get ready with their defence lawyers & witnesses on that date. On the 6th August, the case was adjourned because none of the prosecution witnesses was present & the trial commenced on the 7th August, i. e., next day. In case No. 18, an Order simi1alr to the one passed in case No. 17 was passed on the 3rd August, but the hearing was fixed for the 7th August. The docketsheets also show that the trial was concluded in case No. 17 on the 14th August & in case No. 18 on the 13th August. As to the circumstances under which the accused were non represented by a lawyer, we have been refd. to a counter affidavit filed by Mr. Hanumantha Naidu, who investigated the case, in which the following statement occurs : "4. Regarding the means of accused Hanumantha enquiries were made by the Tribunal & it was found that he had enough means to engage a lawyer. He owned lands & house property. But he, however, did not want to engage a lawyer & this is noted in docket-sheet of criminal case No. 14/49 by the President of the Tribunal.Facilities were given to the accused to engage lawyers for their defence. In cases in which the accused had no means to engage pleaders for their defence & applied to the Tribunal for appointment of pleaders at Govt. cost, this was done. In some cases, the accused declined to accept the pleaders appointed by the Tribunal for their defence. Some engaged pleaders of their choice at their cost. 5. The allegations in para. cost, this was done. In some cases, the accused declined to accept the pleaders appointed by the Tribunal for their defence. Some engaged pleaders of their choice at their cost. 5. The allegations in para. 5 of the affidavit that lawyers were afraid to come forward & defend the accused, that they were afraid of incurring the displeasure of the police & the Administration & that they were unwilling to appear before the Special Tribunal, are not true. Lawyers were willing to appear & defend the aroused if they were engaged, & in criminal case No. 14/49, Ramireddy, Pleader, appeared for A.4, A-7 & A-8 & conducted their defence. Mr. Ramareddy also offered to defend the other accused, but they declined to have him & stated that they did not want any lawyer to defend them. In Nalgonda, there are about 40 practicing pleaders out of whom about half a dozen are B. A. LL.Bs. well conversant with English & able to conduct cases in English." 15. It was contended on behalf of the petnrs. that this affidavit concerns the petnrs. in case No. 14 of 1949 only, & this contention does receive some apparent support from the fact that in the earlier part of para. 4 reference is made to the means of one of the accused in case No. 14 & there is also a direct reference to that case later. But, on a careful reading of the affidavit as a whole, it seems to us that the affidavit was intended to cover the allegations of the petnrs. in all the three cases. We also find that the point raised before us was also urged before the H. C. when the petnrs. appld. for leave to appeal against their conviction, & it was dealt with somewhat elaborately by two learned Judges in separate judgments, & they have expresed the view that the contention that the Tribunal did not give the accused an adequate opportunity to engage lawyers is not well founded. Sripat Rao J., who delivered the leading judgment, after dealing with the various facts, observed as follows :- "It was not contended before us in appeal that they were not afforded such an opportunity by the special Tribunal. Sripat Rao J., who delivered the leading judgment, after dealing with the various facts, observed as follows :- "It was not contended before us in appeal that they were not afforded such an opportunity by the special Tribunal. In fact, in appeal No. 1385 of 1358-F, proceedings dated 29- 2-58F show that the H. C also wanted them to be represented by lawyers for which time was allowed, but on the next hearing they stated that they do not wish to engage any lawyer on their behalf & that the H. C. need not engage any lawyer for them. This shows that the accused for reasons best known to themselves did not avail of the opportunity of engaging lawyers. This was also the case regarding appeals No., 1379 to1384 of 1358-F in which H, C s- proceedings dated 29-2-59F show that the accused neither wanted to engage any lawyer on their behalf nor did they wish the H. C. should engage any one for them. In view of this, the plea that opportunity was not given to the accused to engage lawyers & therefore, the trial was vitiated, in our opinion, fails." 16. It appears to us on the materials before us that we cannot altogether rule out the suggestion of the H. C. that the curious attitude adopted by the accused, to whatever cause it may have bean due, to some extent accounts for their not being represented by a lawyer. In the course of the arguments, our attention was drawn to the fact that some of the relations of the accused in the first case (case No. 14), were present at the trial, & some of the accused in that case were in fact defended by a pleader, & it was contended that this fact lent support to the conclusion expressed by the H. O., because if the accused in the first case were not denied access to their relations & lawyers, there was no reason why the accused in the other cases should have been denied such access. Therefore, in the state of evidence before us, the position is hardly clear enough to justify the conclusion which the petnrs. ask us to draw in these patns. Therefore, in the state of evidence before us, the position is hardly clear enough to justify the conclusion which the petnrs. ask us to draw in these patns. But we must state that throughout the arguments on this point, we could not help feeling that the Special Tribunal should have taken some positive steps to assign a lawyer to aid the accused in their defence. 17. We will now deal with the first point which relates to the jurisdiction of the special Tribunal by which the accused have been tried & convicted. The general ground urged to make good this point is that the order made by the Civil Administrator purporting to confer jurisdiction on the Special Tribunal to try the petnrs did not indicate with sufficient certainty that the petnrs. were the persons whose cases were to be tried by that Tribunal, & hence there was no proper order to enable the Tribunal to take cognizance of the petnrs , cases. It was contended that under the ordinary law, the cases of the petnrs. would have been placed in the first instance before a Mag. for holding an enquiry before commitment & thereafter they would have been tried by a Ses. J. This procedure, it is argued, could have been dispensed with only if a proper order had been made under the Regulation by the Civil Administrator, & in the absence of such an order, the trial was null &void. This point was also raised by the petnrs, in their appln, to the H. C. for leave to appeal to this Ct. & the H. C. in negativing it reld. on the orders made by the Civil Administrator in two letters produced before it, viz., (1) letter No.3176/49.ST., dated 7-4-1949, by which criminal cases covered by charge Sheet Nos.1 to 14 were ordered to be tried by the Special Tribunal at Nalgonda; (2) letter No. 4234/49 ST., dated 23-7-1949, by which cases covered by charge-sheets Nos. 15 to 40 were made over to the same Tribunal for trial. The statement made in the judgment of the H. C is confirmed by an affidavit filed before us on behalf of the resps. It was contended on behalf of the petnrs. 15 to 40 were made over to the same Tribunal for trial. The statement made in the judgment of the H. C is confirmed by an affidavit filed before us on behalf of the resps. It was contended on behalf of the petnrs. that a mere reference to the number of the charge-sheet is too vague a description to satisfy the requirements of law & that the Civil Administrator making over the cases should have stated the names of the accused & other necessary particulars. We think, however, that the reference to the charge sheet numbers was in the circumstances of the case sufficient to particularize the cases which were being made over to the Special Tribunal, especially as the charge-sheets contained the names of the accused as well as other details necessary to identify the cases made over to the Tribunal. The general argument, therefore, necessarily fails. But, on a careful scrutiny of the record as it stand before us, we are unable to find any specific order of the Civil Administrator making over the case covered by the charge-Sheet No. 14 dated 20-7-1949 to the Tribunal. It will be recalled that there were two charge-sheets numbered 14 one of which was submitted by the Investigating Officer on 7-4-1949 & the other 20-7-1949. The first letter of the Civil Administrator, which was written on 7-4-1949, covered one of the charge-sheets numbered 14 (the earlier one), but it cannot be held to cover the second charge-sheet bearing the same number (No. 14), which came into existence on 20-7-1949, i.e., nearly 3 months after that letter was despatched. The second letter does not refer to any charge-sheet numbered 14. Therefore, the charge sheet No. 14 of the 20th July, which we will for the sake of brevity describe as 14 (2), is not covered by any written order made by the Civil Administrator. Prima facie, therefore, these is room for the argument that owe No. 17, which is affected by this charge-sheet (No. 14 (2)), was never properly made over to the Tribunal & the trial of the accused in that case was, therefore, without jurisdiction. 18. In the course of the arguments, the learned Attorney-General refd. to the affidavit of Mr. Prima facie, therefore, these is room for the argument that owe No. 17, which is affected by this charge-sheet (No. 14 (2)), was never properly made over to the Tribunal & the trial of the accused in that case was, therefore, without jurisdiction. 18. In the course of the arguments, the learned Attorney-General refd. to the affidavit of Mr. Hanumantha Naidu, in which it is stated that that case also was transferred by the Civil Administrator to the Tribunal for trial, & he was also prepared to file an affidavit by the Civil Administrator himself to show that the case had been validly transferred to the Tribunal. It is unfortunate that this point was neither raised nor investigated in the appeal to the H. C. but has to be dealt with in this Ct. merely upon affidavits, many of which are not properly drafted or sworn. In these circumstances, we would have been inclined to pursue the matter by further investigation had we felt that such & course would serve any useful purpose, but we think it unnecessary to do so, as we find that there are certain insuperable obstacles in the way of our granting the petnrs. any relief under Art. 32. 19. Art. 32 (2) provides that "the S. C. shall have power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto & certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (Part III)." The power given to this Court under this provision is a large one but it has to be exercised in accordance with well established principles. The writs to which reference has been made must obviously be correlated to one or more of the fundamental rights conferred by Part III of the Constitution & can be made only for the enforcement of such Rights. In the petitions before us, the petnrs, have made the following relevant prayers : "(I) that this Court may issue a writ in the nature of certiorari or a direction or order directed to resps, 1 & 9 (the Govt. Hyderabad and the Special Judge, Nalgonda) calling upon them to produce the records before it and to show cause why the convictions and sentences of the petnrs. Hyderabad and the Special Judge, Nalgonda) calling upon them to produce the records before it and to show cause why the convictions and sentences of the petnrs. should not be quashed ; (2) that this Court may issue a writ of prohibition or a direction or order directed to resps, 1 and 2 (the Govt.of Hyderabad & the Superintendent of the Jail requiring them not to execute the petitioners." At a late stage of the hearing of the case, an application was made on behalf of the petnrs to allow them to amend their pain, so as to include a further prayer for a writ of habeas corpus, and this was done. 20. The question to be decided now is whether any of these prayers can be granted. The writs of certiorari and prohibition are hardly appropriate remedies in this case, because they are usually directed to an inferior Court, but at the date when the H. C. dealt with these oases and confirmed the convictions and sentences of the petrns. this Court was not in existence, and at that point of time, by no stretch of reasoning, the H. C. can be said to have been subordinate to this Court. The prayer for the issue of a writ of habeas corpus is however said to stand clear of this difficulty, on the ground that the detention of the petnrs. would be illegal from day to day, if it is held to be based on an order made without jurisdiction which is therefore liable to be ignored as a nullity. 21. The matter is, however, not so simple as it may appear at the first sight. There is a long line of cases relating to the habeas corpus writs, in which it has been held that when the return states that the party who is alleged to be unlawfully detained, is detained in execution of a sentence on indictment on a criminal charge, the return cannot be controverted: See R. v. Suddis, (1801) 1 East 306, Carus Wilson s case, (1845) 7 Q. B. 984 at p. 1008; Ex parte Lees, (1858) El. Bl. & El, 828. In some cases, however, the question arose as to whether affidavits would be admissible to show that there was no jurisdiction in the Court by which the prisoner was convicted. Bl. & El, 828. In some cases, however, the question arose as to whether affidavits would be admissible to show that there was no jurisdiction in the Court by which the prisoner was convicted. On this point, there are three cases in which it was held that such an affidavit would be admissible. The most important of these cases is In re Authers, (1889) 22 Q. B. D. 345 at p. 350, on which very great reliance has been placed by Mr. Pritt. In that case, the manager of a club was convicted under a certain statute of selling beer by retail without having an excise retail licence, Subsequently, he was convicted of selling intoxicating liquor, viz., beer, without a licence under another statute, Upon the hearing of the latter charge, the Magistrate treated it as a second offence; and imposed the full penalty authorized in the case of "the second offence" by the latter statute. His appeal to the Quarter Sessions having been dismissed, he applied for a writ of habeas corpus and it was granted by the Queen s Bench Division on the ground that the Magistrate could not treat the later offence as a second offence, because it was not a second offence under the Act under which he was convicted for the second time. Hawkins J. in dealing with the case observed as follows : "I have had many doubts whether it was competent for us to go behind a conviction which had not been quashed upon certiorari or by any other process of law ; but I have satisfied myself that we can go behind this conviction upon affidavits. There are two authorities, in the Queen s Bench and Exchequer respectively, which seem to be conclusive. They were two cases of prosecution of workmen for neglecting their duty to their employers, and in each of them there was a summary conviction ; upon the argument of a rule for a writ of habeas corpus it was allowed to be proved by affidavits. that the men were, as a fact, not in that particular employment, and, therefore, not subject to the jurisdiction of the justices, the ground of admission of the affidavits being that there was no evidence before the justices to justify a conviction. that the men were, as a fact, not in that particular employment, and, therefore, not subject to the jurisdiction of the justices, the ground of admission of the affidavits being that there was no evidence before the justices to justify a conviction. So, in the present case, the Court is at liberty to go, behind the conviction and to receive affidavits, it not being a case of conflicting testimony but one in which the Magistrate had found a previous conviction, when, in point of fact, there was none. For them reasons, I think, that the prisoner is entitled to be discharged." Referring to the appeal of the prisoner to the Quarter Sessions, the learned Judge observed : "This is true as a fact, but it puts the prosecution in no better position, for it the Magistrate had no power to give himself jurisdiction by finding that there had been , first offence where there had been none, the justices could not give it to him." In his judgment, the learned Judge did not refer to the previous precedents on which he relied but it has been generally assumed that he intended to refer to In re Bailey, (1854) 3 El. & Bl. 607 and In re Baker, (1857) 2 H. & N. 219 : (26 L, J. M. C. 155). 22. As against these cases, there are a number of cases in which a different view has been taken and which cannot be easily reconciled with them. The leading case on the other side of the line is In re Newton, (1855)139 E. R. 692, Where it was held that "the Queen s Bench Division had no power to grant, habeas corpus to bring up a prisoner who had been convicted at the Central Criminal Court on the ground that the offence charged was committed at a place out of the jurisdiction of that Court. " In dealing with the case, Jervis C.J. observed as follows : "The question raised in this case is undoubtedly one of very great importance. No authority has been found to warrant it. The point, it would seem, therefore, had never before been raised,-it may be because it is so plain that there is nothing in it. The state of things is this :Mr. No authority has been found to warrant it. The point, it would seem, therefore, had never before been raised,-it may be because it is so plain that there is nothing in it. The state of things is this :Mr. Newton has been tried and convicted on an indict meat alleging that the offence charged was committed; within the jurisdiction at the Central Criminal Court. Either that was traversed, or the jurisdiction was admitted by pleading over. If it were traversed, the finding of the jury is that the prisoner committed the offence within the jurisdiction of the Court as alleged. He now seeks to impeach that finding on the ground that the place where the offence was actually committed is more than one thousand yards distant from the boundary of the parish, in which the record alleges it to have been committed. That is not to be governed by the inquiry whether the fact be indisputable or otherwise. It we could entertain the application because the boundary is clearly ascertained, we should be equally bound to entertain disputes of the most refined and minute character. The inconvenience of this is manifest. The truth is that the remedy is not by an application of this sort." 23. Another learned Judge agreeing with the view of the Chief Justice, observed as follows : Ordinarily upon criminal trials, the jurisdiction of the Court over the place where the offence is allege to have been committed is assumed. And here, no doubt, the trial proceeded upon the assumption that Beulah Spa was within the jurisdiction of the Central Criminal Court. Whether it was so or not was as much a matter of fact to be proved (or admitted) as any other fact alleged in the indictment, in order to establish the conviction." 24. The view expressed in this case has been taken in several other cases also, and in Greene v. Secretary of State for Home Affairs, (1942) A. C. 284, Viscount Maugham seems to have thrown the weight of his authority in favour of that view. A Bench of the Calcutta High Court has also supported that view in In re Bonomally Gupta, 44 Cal. 723. A Bench of the Calcutta High Court has also supported that view in In re Bonomally Gupta, 44 Cal. 723. The trend of decisions thus seems to be in favour of the view that if it should appear on the face of the return that a person is in detention in execution of a sentence on indictment on a criminal charge, that would be a sufficient answer to an application for a writ of habeas corpus. Assuming, however, that it is open even in such cases to investigate the question of jurisdiction, as was held in In re Authers, (1889) 22 Q.,B. D. 345 (supra), it appears to us that the learned Judges who decided that case went too far in holding that notwithstanding the fact that the conviction and sentence had been upheld on appeal by a Ct. of competent jurisdiction the mere fact that the trial Ct. had acted without jurisdiction to justify interference treating the appellate order also as a nullity. Evidently, the appellate Ct. in a case which properly comes before it on appeal, is fully competent to decide whether the trial was with or without jurisdiction, & it has jurisdiction to decide the matter rightly as well as wrongly. If it affirms the conviction & thereby decides wrongly that the trial Ct. had the jurisdiction to try & convict it cannot be said to have acted without jurisdiction & its order cannot be treated as a nullity. It is true that there is no such thing as the principle of constructive res judicata in a criminal case, but there is such a principle as finality of judgments which applies to criminal as well as civil cases & is implicit in every system, wherein provisions are to be found for correcting errors in appeal or in revn. S. 430, Criminal P. C. & S. 355 of the Hyderabad Cri. P. C. have given express recognition to this principle of finality by providing that "judgments & orders passed by an Appellate Ct. upon appeal shall be final, except in cases provided for in S. 417 & Chap. XXXII. 26. It is well settled that if a Ct. acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e., an appeal would lie to the Ct. upon appeal shall be final, except in cases provided for in S. 417 & Chap. XXXII. 26. It is well settled that if a Ct. acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e., an appeal would lie to the Ct. to which it would lie if its order was with jurisdiction. (See Ranjit Misser v. Ramudar Singh, 16 C. L. J. 77 : (16 1. C. 940), Bandiram v. Purna Chandra, 45 Cal. 926 at p. 919, Wajuddi Pramanik v. Md Bolaki Morul, 30 C. W. N. 63 at p. 64 and Kalipada v. Sekher Bashini Dasya, 24 C. L. J. 235, Therefore, the H. C. at Hyderabad had jurisdiction to hear & decide the appeal in this case. In view of this foot the deprivation of life or liberty, upon which the case of the deprivation is founded, has been brought about in accordance with a procedure established by law & their present detention cannot be held to be invalid. 27. There is also another difficulty in the way of the petnrs, which may be briefly stated. From the facts already narrated, it should be clear that the judgment of the H. C, affirming the convictions & sentences of the petnrs. had acquired finality in the fullest sense of the term before 26-1-1950, & by reasons of this no one could question the validity of the convictions at the date when the Constitution came into force. Can then a new law or a change in the old law entitle us to reopen a transaction which has become closed & final ? It is common ground that the provisions of the Constitution which are invoked here ware not intended to operate retrospectively & therefore something which was legally good on 25-1-1950, cannot be held to have become bad on 26-1-1950. If we had no jurisdiction to sit in appeal over the judgment of the Hyderabad H. C. can we not reinvestigate the cases & pass orders which cannot be passed without virtually setting aside the judgments of the H. C. which have become final. Can we in other words, do indirectly what we refused to do directly ? It is argued that we are asked not to reopen a past transaction but to, deal with the present detention of the petnrs. Can we in other words, do indirectly what we refused to do directly ? It is argued that we are asked not to reopen a past transaction but to, deal with the present detention of the petnrs. i. e. their detention at this moment. But, how can we hold the present detention to be invalid unless we reopen what could not be reopened prior to 16-l -1950. This is, in our opinion, one of the greatest difficulties which the petnrs. have to face, & it rests not merely on technical grounds but on sound legal principles which have always been & should be respected. 28. The learned counsel for the petnrs. tried to make much of the fact that the petnrs. had lost their right to appeal by a sudden change in the law & by the delay on the part of the H. C. in the disposal of their appln. for leave to appeal to the Judicial Committee of Hyderabad. That may be unfortunate but there can be no justification for widening the scope of the existing remedial laws beyond legitimate bounds. A similar argument was addressed in Ex parte Lees (1858-El. Bl. & El. 828 ; 113 R. R. 911) (supra), & Lord Campbell C. J. met it with these observations : "it is alleged, on the part of the prisoner, that the proceedings were upon a repealed statute & that there were errors in the judgment & hardships & irregularities in the proceedings. If such allegations are well founded & obstacles are found to prevent any remedy by appeal to the P. C. or by writ of error to this Ct. we apprehend that the advisers of the Crown will take the matter into their consideration, & form their judgment with respect to any alleged error wrong or hardship which may be brought before them ; & if any such be established to their satisfaction will advise the crown to give the relief to which. they may think the appct, entitled by pardon or mitigation of punishment. We have no authority to interfere." All that we can say is that the petnrs. they may think the appct, entitled by pardon or mitigation of punishment. We have no authority to interfere." All that we can say is that the petnrs. accused in criminal case No, 17 of 1949 have made out a prima facie case that there was no specific order of the Civil Administrator directing the case to be tried by a Special Tribunal & they have shown that in that ease one of the three members of the Tribunal gave a dissenting judgment which is more favourable to the accused than the majority judgment. While the facts were being analysed before us, it was brought to our notice that there were altogether six accused in case No. 17, out of which five have been convicted & sentenced to death in case No. 18 also. The remaining accused Kallur Gowndla Elladu, is thus the only person to be affected by the arguments relating to the trial being without jurisdiction & a further point in his favour is that the fatal blow on which the charge of murder is based is not attributed to him but to another person & no definite overt acts are ascribed to him. We have no doubt that these facts will receive due consideration at the hands of the executive authorities. 29..As the points involved in the petns for special leave to appeal to this Ct. against the order of the H. C. refusing to grant relief under Art. 226 of the Constitution are the same as those involved in the petns. under Art. 32, all the six petns are dismissed. It may however be observed that in this case we have not considered it necessary to decide whether an appln. under Art. 32 is maintainable after a similar appln, under Art. 226 is dismissed by the H. C. & we reserve our opinion on that question. Petitions dismissed. For Citation : AIR 1951 SC 217 =1951 SCJ320=1951 SCR 341=52 Cr. L.J. 736. Vikas Info Solutions Pvt. Ltd.