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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Mr. P.V. Rajamannar, Chief Justice, Mr. Justice Horwill and Mr. Justice Rajagopalan,JJ.
S.M. Nathaniel, In re. .....In Re.
Crl.Appeals Nos. 169, 182 and 183 of 1948.
Decided On : 12 November 1948
Appeals - Criminal Procedure - Act XXVI of 1943 - Section 411-A, Section 449 - The court discussed the validity of Act XXVI of 1943, which inserted section 411-A into the Code of Criminal Procedure, providing for appeals against convictions and acquittals on trials held by a High Court in the exercise of its original criminal jurisdiction. The court interpreted the legislative powers of the Central and Provincial Legislatures under the Government of India Act, 1935, and determined that the subject matter of Act XXVI of 1943 fell within the Concurrent Legislative List, giving the Central Legislature the power to make laws affecting the jurisdiction and powers of Courts with respect to criminal procedure, including the right of appeal. The court also considered the special provision in section 103 of the Government of India Act, which allowed the Federal Legislature to pass an Act for regulating matters enumerated in the Provincial Legislative List if resolutions to that effect were passed by all the Chambers of those Provincial Legislatures. The court found that the condition laid down in section 103 was satisfied, as the Governor had assumed to himself all the powers vested in the Legislatures, and the Act was designed to give effect to the conclusions which had emerged from a collection of opinions expressed by the various authorities consulted. The court concluded that Act XXVI of 1943 was a valid enactment of the Central Legislature, and the appeals were therefore maintainable.
Fact of the Case:
The appellants were accused in Case 10 of 1948 at the first Criminal Sessions of the Court in the year 1948. They were found guilty of conspiracy to murder and the murder of Dr. Habibulla. The appeals were preferred under section 411-A of the Code of Criminal Procedure, which had been added to the Code by Act XXVI of 1943, with the leave of the appellate Court on matters of law and fact.
Finding of the Court:
The court found that Act XXVI of 1943 was a valid enactment of the Central Legislature, and the appeals were therefore maintainable.
Issues: The issues involved the validity of Act XXVI of 1943, the interpretation of the legislative powers of the Central and Provincial Legislatures under the Government of India Act, 1935, and the satisfaction of the condition laid down in section 103 of the Government of India Act for the Federal Legislature to pass an Act for regulating matters enumerated in the Provincial Legislative List.
Ratio Decidendi: The court interpreted the legislative powers of the Central and Provincial Legislatures under the Government of India Act, 1935, and determined that the subject matter of Act XXVI of 1943 fell within the Concurrent Legislative List, giving the Central Legislature the power to make laws affecting the jurisdiction and powers of Courts with respect to criminal procedure, including the right of appeal. The court also considered the special provision in section 103 of the Government of India Act, which allowed the Federal Legislature to pass an Act for regulating matters enumerated in the Provincial Legislative List if resolutions to that effect were passed by all the Chambers of those Provincial Legislatures. The court found that the condition laid down in section 103 was satisfied, as the Governor had assumed to himself all the powers vested in the Legislatures, and the Act was designed to give effect to the conclusions which had emerged from a collection of opinions expressed by the various authorities consulted.
Final Decision: The court concluded that Act XXVI of 1943 was a valid enactment of the Central Legislature, and the appeals were therefore maintainable.
The Chief Justice.-The appellants in the above appeals were accused 1 to 4. in Case 10 of 1948 at the first Criminal Sessions of this Court in the year 1948. All the four appellants were found guilty by a majority of the jury of the offence of conspiracy to murder the late Dr. Habibulla. The appellants in Criminal Appeal No.183 of 1948 were found also guilty of murdering him, while the appellants in Criminal Appeals Nos.169 and 182 of 1948 were found guilty of abetting the murder. The majority verdicts of the jury were accepted by Bell, J. who tried the case, and they were sentenced to death. The appeals were preferred under section 411-A of the Code of Criminal Procedure which had been added to the Code by Act XXVI of 1943, with the leave of the appellate Court on matters of law and fact. The appeals came up for hearing before Horwill and Govinda Menon, JJ. The learned Public Prosecutor raised a preliminary objection that the appeals were not maintainable because Act XXVI of 1943 was invalid as being ultra vires of the Central Legislature, which had enacted it. As the learned Judges felt that it was desirable that the preliminary objection should be considered by a Full Bench, the papers were placed before me, and this Full Bench was constituted to hear the preliminary objection. At the hearing before us, the learned Advocate-General appeared on behalf of the Provincial Government and argued in support of the preliminary objection.
Before the passing of Act XXVI of 1943, the provisions of law relating to the conviction and sentence or acquittal by the High Court at its Criminal Sessions were as follows: Under section 25 of the Letters Patent there was no appeal to the High Court from any sentence or order passed or made in any criminal trial before the Courts of Original Criminal Jurisdiction which may be constituted by one or more Judges of the said Court. But it was in the discretion of any such Court to reserve any point or points of law for the opinion of the High Court. When such point or points of law were so reserved, or, if it was certified by the Advocate-General that, in his judgment, there was an error in the decision of a point or points of law decided by the Court of Original Criminal Jurisdiction or that a point or points of law which has or have been decided by the said Court should be further considered, the High Court had full power and authority to review the case, or such part of it as may be necessary, and finally determine such points of law, and thereupon to alter the sentence passed by the Court of original jurisdiction, and to pass such judgment and sentence as may seem fit. The Code of Criminal Procedure did not contain any provision conferring a right of appeal from a sentence or order passed by the High Court in exercise of its original jurisdiction except in cases specified in section 449 which ran thus:
“Where-
(a) a case is tried by jury in a High Court or Court of Session under the provisions of this Chapter, or
(b) a case which would otherwise have been tried under the provisions of this Chapter is under this Code committed to or transferred to the High Court and is tried by jury in the High Court, or
(c) a case is tried by jury in the High Court in a Presidency-town and the High Court grants leave to appeal on the ground that the case would, if it had been tried outside a Presidency-town, have been triable under the provisions of this Chapter, then, notwithstanding anything contained in section 418 or section 423, sub-section (2) or in the Letters Patent of any High Court, an appeal may lie to the High Court on a matter of fact as well as on a matter of law.
(2) Notwithstanding anything contained in the Letters Patent of any High Court, the Provincial Government may direct the Public Prosecutor to present an appeal to the High Court from an original order of acquittal passed by the High Court in any such trial as is referred to in sub-section (1).
(3) An appeal under sub-section (1) or sub-se
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