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Phylwan Abdul Khader And Others v. State Of Mysore .
Factual and Procedural Background
The appeal arises from four criminal cases tried under the Special Criminal Courts Act, 1942. Special leave to appeal was granted by the Supreme Court of India, limited to challenging the validity of that Act. Leave was confined to five petitioners—specifically the first, second, third, eleventh, and fourteenth.
The second appellant, Nalband Abdul Rahiman, faced two separate trials:
- In Criminal Case No. 1 of 1948-49 he was convicted under Sections 302/304 of the Indian Penal Code (IPC) and sentenced to death, and further convicted under Sections 333/34 and 326 IPC with a sentence of ten years’ rigorous imprisonment.
- In Criminal Case No. 2 of 1948-49 he was sentenced to transportation for life under Section 302 and to lesser terms under other sections.
The first appellant, Phylwan Abdul Khader, although acquitted of murder, received sentences of transportation for life and other lesser terms in the same two cases. All other appellants received sentences of transportation or imprisonment but not death.
Convictions were recorded on 5 October 1949. Under Section 7 of the Act the cases were automatically sent for review to the Chief Justice of the Mysore High Court. While the review was pending, the Constitution of India came into force on 26 January 1950. The death sentence was confirmed on 31 March 1951. The present judgment, delivered in April 1953, considers whether Article 14 of the Constitution (equality before the law) is offended and whether the Special Criminal Courts Act is valid in this context.
Legal Issues Presented
- Whether convictions obtained under the Special Criminal Courts Act, 1942, violate Article 14 of the Constitution of India.
- In the case of the second appellant’s death sentence, whether confirmation by a single High Court Judge (as provided in Section 7 of the Act) constitutes unconstitutional discrimination when compared with the confirmation procedure of Section 374 of the Criminal Procedure Code, which requires two Judges.
Arguments of the Parties
Appellants' Arguments
- The trial, including the statutory review, must be treated as a single continuing proceeding; because the sentence could not take effect until confirmed, Article 14 applies to the entire process which extended beyond 26 January 1950.
- Reliance was placed on Piare Dusadh & Others v. The King Emperor (1944 FCR 61) to argue that proceedings remain pending until final confirmation, thereby attracting constitutional scrutiny.
- For the death sentence, appellants contended that requiring confirmation by only one Judge amounts to unequal treatment vis-à-vis similarly situated convicts tried under ordinary criminal procedure who receive confirmation by a Division Bench of two Judges.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Piare Dusadh & Others v. The King Emperor, 1944 FCR 61 | Proceedings are regarded as continuing until the sentence is finally confirmed. | Cited by appellants to bring the review stage within the ambit of Article 14; the Court noted the citation but held that even if accepted, it would not benefit appellants whose ordinary right of appeal had already lapsed. |
Court's Reasoning and Analysis
Non-death sentence cases. The Court assumed, without deciding, that post-Constitution trials before a Special Court might be invalid. It held, however, that:
- The trials and convictions occurred on 5 October 1949, prior to the Constitution; hence Article 14 has no retrospective application.
- Section 25 of the Special Criminal Courts Act extinguishes all rights of appeal or revision except the statutory review under Section 7. By 26 January 1950 the ordinary 60-day window for appeal had expired, so no constitutional right could revive.
- Even if the statutory review after 26 January 1950 were ultra vires, setting it aside would leave the original convictions untouched because the appellants had no extant right of appeal.
Death sentence case. The Court acknowledged a potential disparity: under the Criminal Procedure Code a death sentence requires confirmation by two High Court Judges, while the Act allows confirmation by one. This could constitute “substantial discrimination.” Nevertheless, the Court found it unnecessary to decide the constitutional question because:
- If the appellant succeeded, the conviction would be set aside, but he would still face multiple sentences of transportation and imprisonment.
- Regardless of the constitutional issue, the Court deemed a reduction of sentence appropriate owing to the exceptional delay—over three and a half years—between conviction and confirmation, none of which was attributable to the appellant.
Holding and Implications
DISMISSAL OF APPEALS: The appeals of all appellants are dismissed on the merits.
MODIFICATION OF SENTENCE: For the second appellant, Nalband Abdul Rahiman, the death sentence is commuted to transportation for life; all other convictions and sentences remain undisturbed.
Implications are confined to the parties: the convictions obtained under the Special Criminal Courts Act stand, while the lone death sentence is reduced in view of delay. The Court deliberately refrained from ruling on the broader constitutional validity of the Act or the applicability of Article 14, thereby setting no new precedent on those questions.
The Judgment of the Court was delivered by
Vivian Bose, J.— This is an appeal arising out of convictions in four criminal cases which were tried under the Special Criminal Courts Act, 1942 (Act 24 of 1942). Special leave to appeal was granted by this Court but the leave was confined to the question of the validity of the Act and leave was only granted to the first, second, third, eleventh and fourteenth petitioners.
2. Now that we have heard counsel on both sides at length we consider it unnecessary to decide the constitutional points raised. We are of opinion that the convictions in which sentences for transportation and under have been awarded must in any event stand. That narrows the matter down to the second appellant's case, for he is the only one now under sentence of death.
3. The second appellant Nalband Abdul Rahiman was prosecuted in two cases. In one (Criminal Case No. 1 of 1948-49) he was convicted under Sections 302/304 IPC and was sentenced to death. He was also convicted in the same case under Sections 333/34 and 326 IPC and sentenced to ten years' rigorous imprisonment. On a reference to the Chief Justice of Mysore under Section 7 of the Act these convictions and sentences were upheld. In another case (Criminal Case No. 2 of 1948-49) he was convicted under Section 302 on one count and sentenced to transportation for life and was convicted under Section 148 on another count and sentenced to three years. These convictions and sentences were also upheld on review.
4. The first appellant Phylwan Abdul Khader was also sentenced to by the Special Judge in Criminal Case No. 1 of 1948-49 but he was acquitted of the murder charge by the learned reviewing Judge. He was however sentenced to transportation for life in Criminal Case No. 2 of 1948-49 and that was upheld. He was also sentenced to ten years in Case No. 1 on charges under Sections 333/34 and 326 and in Case No. 2 to seven years under Section 304(1), to seven years under Section 326 and to three years under Section 148. These were upheld on review.
5. We need not set out the convictions and sentences of the remaining appellants. It is enough to say that none of them has been sentenced to death.
6. We will first consider the cases of all the appellants (including the second) except where the second appellant has been sentenced to death in Criminal Case No. 1 of 1948-49, that is to say, we will take up all those cases in which no, sentence of death is outstanding.
7. The only question we have to decide is whether these convictions offend Article 14 of the Constitution.
8. The Act under which these trials were held empowered the constitution of Special Courts. It is not necessary for us to decide whether those trials would have been illegal after the Constitution. We will assume for the purposes of those cases, without deciding the point, that they would. But there is no doubt that the trials were valid before the Constitution and that the convictions in all those cases, which were decided on 5-10-49, were good in law.
9. Section 25 of the Act expressly takes away all rights of appeal and revision and states that:
“...save as aforesaid, no court shall have authority to revise such order or sentence ... or have any jurisdiction of any kind in respect of any proceedings of any such court.”
10. The provisions “aforesaid” referred to are, so far as these cases are concerned, contained in Section 7(a)
“If in any proceedings before a Special Judge—
(a) a person convicted is sentenced to death or to transporation life, or to imprisonment for a term of seven years or more….
the proceedings shall be submitted for review by a person nominated in this behalf by the Government, which person shall be chosen from the Judges of the High Court, and the decision of that person shall be final.”
11. The cases were submitted at once, namely, on 5-10-1949, the date of the convictions. The reviewing Judge was the Chief Justice of the Mysore High Court.
12. While the matters were still pending before the learned Chief Justice, Constitution came into force. On that date, 26-1-1950, the sixty days allowed for appeal in ordinary criminal cases had elapsed. Therefore, but for this section the matter would have been finally concluded and no question about the applicability of Article 14 could have arisen because the Article has no retrospective effect.
13. The argument however is that the trial must be regarded as a whole that as the sentences of the Special Judge could not be given effect to until confirmed by the reviewing Judge, the proceedings must be taken to have continued. Reliance was placed upon Piare Dusadh v. King-Emperor 1944 FCR 61 at 111.
14. If this contention is correct, then the only conclusion which follows from it is that the proceedings before the reviewing Judge are ultra vires and may be ignored, but that would not confer any advantage upon the appellants as their right of appeal, if any, against the convictions and sentences of transportation for life and less had already become barred before the Constitution came into force and this right could not be revived after the Constitution.
15. We turn next to the case in which the second appellant has been sentenced to death. This is sought to be placed on a different footing because it is said even if it be granted that there was no right of appeal at the date of the Constitution others under sentence of death could claim confirmation of their sentence by two High Court Judges because of Section 374 of the Criminal Procedure Code. Under Section 5(2) of the Act the Special Judge is deemed to be a Court of Session, therefore looking to the substance of the position we have here a man who has been sentenced to death by a court which was equivalent to a Court of Session. Under the general law no such sentence can be carried out till it is confirmed in the manner laid down by Section 374. Under Section 7(a) of the Act the sentence of death passed by the trial Judge is no more final than it is under the Criminal Procedure Code. It requires confirmation on review. Therefore, insofar as the second appellant has been sentenced to death by a court which is, for all practical purposes, equivalent to a Court of Session, and his sentence has been confirmed after the Constitution by only one Judge instead of two, there has been substantial discrimination.
16. We do not intend to decide this point because on the view we take it becomes academic whichever way the matter is viewed. If the appellant is right, his sentence and conviction would be set aside, but that would not entitle him to release because he has sentences of transportation and three years in one case and a sentence of ten years in another outstanding against him. On the other hand, if he were to fail in his contention, we would in any event reduce the sentence to transportation for life because of the three and a half years which have elapsed since his conviction. He was sentenced to death on 5-10-1949 and the sentence was not confirmed till 31-3-1951 and it is now April 1953. The appellant was in no way responsible for the long delay while the matter was awaiting review nor has he been responsible for the delay which has since occurred. In the circumstances, even if he were to uphold the conviction we would have reduced the sentence. But that would not have given him his liberty. In the circumstances we do not intend to interfere with the conviction but will reduce the sentence of death without going into the constitutional points which were raised.
17. The appeal is dismissed as regards all the appellants but in the case of the second appellant Nalband Abdul Rahiman the sentence of death is reduced to one of transportation for life.
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