The Judgment of the Court was delivered by

Koshi, J.:— These are two applications for leave to appeal to the Supreme Court against the judgment of this Court in Cri. Apps. nos. 192 and 193 of 1224. The petitioner in Cri. M.P 67 was the appellant in Cri. App. no. 192 and the petitioner in Cri. M. p. 68, the appellant in Cri. App. No. 193, They were accused 1 and 2 respectively in Sessions Casa No. 20 of 1124 on the file of the Alleppey Sessions Court. The main charge against them was one of murder. The case was that on the night of 18-12-1122 they strangled one Damodaran to death while asleep by tying a rope round his neck and tightening the noose by pulling the two ends of the rope in opposite directions. His dead body was afterwards secretly disposed of by depositing the same in the depths of the Vembanad lake, close to accused 2's residence. At the conclusion of the trial the learned Sessions Judge found both the accused guilty of the said offence and sentenced each of them to undergo rigorous imprisonment for life. According to the law in Travancore, a sentence of imprisonment for life passed by a Sessions Judge has to be submitted for confirmation by the High Court. The reference for confirmation and the appeals preferred by the accused against their conviction and sentence came up for hearing before a Division Bench consisting of the present Chief Justice and myself. The case was heard for two days, 13th and 14th February and when the hearing concluded, His Lordship the Chief Justice delivered the judgment of the Court extempore confirming the conviction and sentence passed by the learned Sessions Judge. Tea days later, on 24-2-1950, these petitions were filed to obtain certificates under Articles 132(1) and 134(1)(c) of the Constitution of India to prefer appeals to the Supreme Court. The grounds taken in these applications for leave are mainly two and they are, to state briefly, (1) that the Bench which heard and disposed of the appeals was not properly constituted and was therefore incompetent to hear or decide the case and (2) that on the merits the decision confirming the conviction and sentence is wrong and unsustainable in law. Notice was duly given to the State on these applications and at the hearing before the present Bench the learned Advocate-General for the State appeared and opposed these applications. The petitioners were represented by Mr. K.G Kunjukrishna Pillai and Mr. N. Padmanabha Panicker.

2. The applications before us set out the first ground of objection to the validity of the judgment of this Court in the following terms:

“Their Lordships who constituted the Bench that heard and decided this case have no right or competency to pronounce a judgment in law. A Judge of the High Court whose appointment is in contravention of the provisions contained in enactments such as, Indian Constitution Act, Travancore Public Service Commission Ordinance and Indian Public Service Commission Act, is incompetent in law to pronounce judgment in this case,”

3. At the hearing it was urged on behalf of the petitioners that the Chief Justice's appointment was made in such disregard of statutory provisions as to make that appointment ineffectual in law and that as a consequence thereof a Bench consisting of the learned Chief Justice and another Judge had no jurisdiction to exercise the powers conferred upon a Bench of this Court by the Travancore-Cochin High Court Act, 1125. The petitioners contended that the Chief Justice's appointment contravened the provisions of sub-s. (5) of s. 3, Travancore-Cochin Public Service Commission Ordinance, 1124 read with the Travancore-Cochin Public Service Commission (Continuance) Act, 1950 which makes the Chair, man and other members of the Public Service Commission ineligible for further employment under the Government of the Travancore-Cochin State and the provisions of Section 9(1) of the High Court Act, which according to them, fix an age limit of sixty for persons to be chosen for appointment as Judges of the High Court.

4. Before he was appointed the Chief Justice of this Court on 20th January this year, His Lordship was the Chairman of the Travancore-Cochin Public Service Commission to which place His Highness The Raj Pramukh appointed, him on 14-7-1949. That office he resigned before he was appointed to the Chief Justiceship. Before his appointment as Chairman of the Public Service Commission His Lordship the Chief Justice had held the office of a Judge of the Madras High Court and from that office he retired on his attaining the age of sixty. The appointment to the Chairmanship of the Commission was made more than one year after the retirement from the Judgeship of the Madras High Court. The contention raised is these facts make his Lordship's appointment as Chief Justice contravene sub-s. (5) of 8.3, Public Service Commission Ordinance and Section 9(1) of the High Court Act. According to the petitioners these are mandatory provisions and a non-compliance of them in making the appointment would render the appointment invalid and the appointee's acts in that office void.

5. Another provision of law which has to be referred to in this context is Article 376(2), Indian Constitution Act, which reads as follows:

“The Judges of a High Court in any Indian State corresponding to any late specified in Part B of the First Schedule holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the High Court in the State so specified and shall, notwithstanding anything in clauses (1) and (2) of Article 217 but subject to the proviso to clause (I) of that article, continue to hold office until the expiration of such period as the President may by order determine.”

6. In pursuance of the provisions of the above clause the Honourable the President passed an order on 26-1-1950 itself in these words:

“In pursuance of the provisions of clause (2) of Article 376 of the Constitution, I hereby determine that Shri C. Kunhi Raman Chief Justice of the High Court in the State of Travancore-Cochin shall, notwithstanding anything contained in cls. (1) and (2) of Article 217 but subject to the proviso to clause (1) of that Article continue to hold office until and including 25-1-1952,”

7. Regarding this order it was common ground that it was not an order of appointment but an order fixing the term of office as required or provided for in clause (2) of Article 376. Mr. Kunjukrisana Pillay, petitioners' learned counsel however contended that the President's order was invalid in as much as the President cannot fix any term for a Judge who has passed the age of sixty and that the President's powers thereunder were limited to fix the period of office of those Judges who were below the age of sixty. In my view that restricted construction sought to be put on the clause is not warranted by the words

“and shall, notwithstanding anything in cls. (1) and (2) of Article 217.……continue to hold office until the expiration of such period as the President may by order determine”

employed therein.

8. The grounds on which the petitioners sought to base their argument as to the invalidity of the Chief Justice's appointment and the objection to his continuance in the office of the Chief Justiceship having been set out, I shall now state the grounds on which the learned Advocate-General tried to meet them. It was first said that under Article 13 of the Covenant entered into by the Rulers of Travancore and Cochin for the formation of the Travancore-Cochin State, until a Constitution framed or adopted by the Legislature came into operation. His Highness the Raj Parmukh and the Council of Ministers were bound to comply with such directions as the Government of India might from time to time choose to give and that the Chief Justice's appointment took place in compliance with a direction issued by the Government of India under the powers reserved by the said Article and that fact would cure all defects or grounds of invalidity, if any, the appointment would otherwise have been open to. The relevant extract from a communication received from the Government of India, dated 16-1-1950 was produced in Court by the State and that clearly shows that the Chief Justice's appointment was made with the full consent and approval of the Government of India if not, as per their direction. Mr. Kunjukrishna Pillar's reply to this may immediately be stated and it was that it did not give the Government of India a right to ask His Highness the Raj Pramukh or the Council of Ministers to do any act in contravention of the statutory provisions in force in the State or cast a duty on the authorities here to blindly carry out the directions whether they be within or outside the law.

9. The second point raised by the learned Advocate-General was that in appointing the present Chief Justice to the office which His Lordship now holds there was no contravention of sub-s. (5) of Section 3 of the Public Service Commission Ordinance or of Section 9 of the Travancore-Cochin High Court Act. It was said that sub-s. (5) of S. 3, Public Service Commission Ordinance only made the Chairman and other members of the Public Service Commission ineligible for further employment under the Government of Travancore-Cochin State and that a Judgeship of the Travancore-Cochin High Court was not employment under the Government of Travancore-Cochin State. I may make it clear that this contention was raised not with reference to the state of things that have coma into existence after 26-1-1950 The argument was that under Section 9(1) of the High Court Act it was the Raj Pramukh that had to make the appointment and that the present Chief Justice was so appointed. The Advocate General's contention was that it is only an employment under the Government of Travancore-Cochin State and not an appointment by the Raj Pramukh that is prohibited under the said sub-section. The petitioner's reply was that the Raj Pramukh appoints Judges of the High Court as the head of the State and such appointment will constitute employment under the Government of Travancore-Cochin State within the meaning of sub-s. (5) of S. 3, Public Service Commission Ordinance.

10. As for the provision in Section 9(1) of the High Court Act that every permanent Judge shall hold office until he attains the age of sixty years, the learned Advocate General's argument was that it did not prevent the appointing authority to appoint to the office of Judgeship a person above the age of sixty years, that a person to be appointed Judge should be below sixty years, is not one of the qualifications mentioned in 9(2), or as he put it in another form, that being above the age of sixty years is no disqualification under s. 9(2) and that the provision in S. 9(1) only gave a guarantee of service till that age to those appointed Judges while under sixty years of age. The petitioners sought to controvert this argument by stating that the provisions in s. 9(1) by necessary implication prohibited the appointment of a person above the age of sixty to the office of a Judge of the High Court.

11. The learned Advocate-General further contended that the provisions in sub-s. (5) of Section 3 of the Public Service Commission Ordinance and S. 9(1), High Court Act were not of a mandatory nature but merely directory and that their contravention would not make the appointment invalid or the appointee's actions null and void. It was also urged that the objection to the constitution of the Bench is an after-thought and that no objection having been raised when the appeals were heard the petitioners should not be allowed to rake it now and that having chosen to argue the case and to take a decision on the merits they must he deemed to have waived the objection, assuming that it was open to them to raise it at all. It was pointed out that even in the affidavits they filed in support of the present applications the petitioners do not say that they were not then aware of the circumstances or facts on which this objection is grounded. But if the validity of the decision Bought to be impugned could not otherwise be supported no question of estoppel or waiver may really arise.

12. Whatever that be, in my view to give a decision on these petitions it is unnecessary to pronounce upon whether the appointment has been in contravention of the law or it can be held to be perfectly within its bounds. Assuming that the Chief Justice's appointment has not been constitutionally correct, in view of events that had become accomplished facts when the decision in the case was given and in the light of the law to be referred to presently I cannot persuade myself to hold that this is a fit case for the issue of a certificate either under Article 182(1) or under Article 131(1)(c) of the Constitution Act. The Court is concerned with the legal consequences of accomplished facts or events. His Lordship the Chief Justice was appointed, the Chief Justice of this Honourable Court by His Highness the Raj Pramukh, on 20th January this year, and as disclosed by the papers produced before us that appointment was made on the recommendation or direction, as the case may be, of the Government of India. His Lord, ship took charge of the office on 20th January itself and since then he has been discharging the judicial and administrative duties pertaining to the office of the Chief Justice with public acquiescence and the unstinted co-operation of all concerned. Some of the authorities the learned Advocate-General cited at the Bar clearly show that in such circumstances even on the assumption I made above the Chief Justice's right to hold office is not open to question nor is his jurisdiction subject to attack in cases that come before him for decision or in a proceeding of the kind that 3 before me now.

13. The decision most apposite here is a decision of the Appellate Division of the Ontario Supreme Court by a Bench of five Judges reported in Re Toronto Rly. Co. v. City of Toronto, (1919) 46 (Canadian) D.L.R 517. That was an appeal against a decision imposing a penalty on the appellants by a Tribunal constituted under the Ontario Railway Act and the question arose whether regard being had to the constitution of the Tribunal and the nature of its functions that Tribunal was properly appointed. The appellants' contention was that under Section 96 of the British North American Act, the Tribunal ought to have been appointed by the Governor-General and not by the Lieutenant-Governor in Council as was actually done. By reason of this alleged error, it was contended by counsel for the appellants that the order of the Tribunal imposing penalty had no validity and that its members, not having been appointed by the Governor-General had no jurisdiction to exercise the powers conferred upon it by the Act by which it was created. In repelling this argument Meredith, C.J remarked that there was insuperable difficulty in the way of the appellants' success on this branch of the case and observed as follows at p. 551 of the report:

“That It is not open to attack, in a collateral proceeding, the status of a de facto Judge, having at least a colourable title to the office, and that his acts are valid, is clear, I think, on principle and authority..’

14. Later it is seen observed that the rule is founded on good sense; for that it would be an intolerable state of things if all the acts that the Tribunal did were to be treated as invalid because its members were appointed by the Lieutenant-Governor in Council and not by the Governor-General. After these prefatory remarks the learned Chief Justice referred to a number of decisions by different Supreme Courts of the States in the United States and concluded his judgment on this part of the case thus;

“There are numerous other cases in the Courts of the United States of America to the same effect as those which I have mentioned. The rule to be deduced from the cases in the United States is stated in 23 Cyc. 621 as follows; ‘The right of a de facto Judge to hold his office is not open to question, nor are his acts subject to attack in a collateral proceeding; these being matters which can only be inquired into in a proceeding to which he is a party… Nor can his title be determined in an action tried before him, nor in certiorari proceedings to review a conviction had before him, nor on an appeal by a person who has been tried and convicted before him;’ and cases are referred to which support each of the propositions stated,

I refer also to the same volume, under the heading ‘De facto Judges’, pp. 618, 619, and 620, and also to what is said on pp. 512 and 513 under sub-head C of division 5, under the heading, ‘Proceedings to Test Right to Office’,”

15. Unfortunately the ??? of Law and Procedure wherefrom quotation is made in the above extract or the reports of cases referred to and followed in the judgment are not available here and I therefore feel obliged to take the liberty of quoting the earlier portion of the judgment which contains reference to decided cases.

16. At p. 652 of the report begins the learned Chief Justice's reference to the decisions of the Supreme Courts of the various States in the United States and I shall begin the quotation from there.

“In The Peop'e v. Bangs, (1860), 21, III, 184 which was the case of an information in the nature of a quowarranto to try the right of Mark Bangs, who had been elected to the office of Judge of the twenty third Judicial circuit of the State of Illinois, to hold that office, it was held by the Supreme Court that the Act of the State Legislature by virtue of which Bangs claimed to hold the office was unconstitutional.

17. In delivering the judgment of the Court, the Chief Justice, referring to the Act, said (p. 187);

‘It gave Judge Bangs Colour of office, no doubt, and acting as he did under colour of office, his acts were as valid, of course, as if the law had been constitutional.

In Campbell v. Commonwealth, (1880) 96 Penn. St. 344 the question was raised an to the validity of a conviction for arson made by a Court consisting of the President Judge of the Courts of Fayette county and two persons who claimed to be Associate Judges but whose election was alleged to be invalid on the ground that the people who elected them had no power to elect Associate Judges in that County.

It was held by the Supreme Court of the State that these two persons were Judges de facto, and as against all parties but the Commonwealth they were Judges de jure and, having at least a colourable title to those offices, their title to them could not be questioned in any other form than by quo warranto at the suit of the Commonwealth.

In that case the Court followed a decision of the Federal District Court of Oregon in In re Ah Lee, (1880), 5 Fed Rep. 899, in which it was held that ‘a person in office by colour of right is an officer de facto and his acts as such are valid and binding as to third persons; and an unconstitutional act is sufficient to give such colour to an appointment to office thereunder.

The question there was as to the constitutionality of an Act of the State Legislature, under the authority of which the Judges of the Court, before whom a prisoner had been tried, were appointed, and the question arose on his application for a writ of habeas corpus.

In Ceasar Griffin's case, (1889), Chase's Decisions (Johnson's Rep.) 364, the same conclusion was reached by Chief Justice, Chase, sitting in the Federal Circuit Court for the District of Virginia.

Burt v. Winona and St. Oeter R. Co., (1884) 31 Minn. 472, is a decision to the same effect, by the Supreme Court of Minnesota.

The same ruling was made by the Supreme Court of Errors of the State of Connecticut in Brown v. O'Connell, (1870) 36 Conn. 432, and it was held by the Court that to constitute an officer de facto it is not necessary that he has colour of appointment from some power having actual authority to make the appointment, but it is sufficient that he has had appointment from some power having colour of authority to make it.

The question in that case arose in an action on a recognizance entered into by the defendant before the person acting as Judge of a Police Court, the validity of whose appointment was attacked.

18. In stating his opinion, Butler, J., said (p. 449):

‘It is easy to suppose cases where an officer may be appointed by a body who suppose they have a right to appoint him, when in law they have not, and yet the officer will be such de facto and his acts cannot be collaterally impeached.’

This case is referred to in Brice on Ultra Vires, 3rd Edn p. 614, as authority for the proposition that a ‘Judicial officer appointed by the common council of a city in pursuance of an Act of the Legislature afterwards declared unconstitutional is an officer de facto, and a recognizance entered into before him is valid.”

19. When I am placing so much reliance on the decision reported in Toronto Ry Co. v. City of Toronto, (1919) 46 (Canadian) D.L.R 547, I should not omit to mention that case went up in appeal to the Privy Council and that the decision of the Ontario Supreme Court confirming the penalty imposed on the appellants before them was reversed by their Lordships of the Judicial Committee, but on grounds absolutely unconnected with the point we are concerned with here. See Toronto Ry. Co v. City of Toronto, (1920) 51 (Canadian) D.L.R 69. In view of their Lordships decision on other points in the case it become unnecessary for them to pronounce upon this point. Viscount Cave who delivered the judgment of the Board observed thus in the penultimate para of the judgment:

“The fourth point raised on behalf of the appellants was that having regard to the powers conferred by statute on the Railway and Municipal Board, that body must be regarded an a “Superior Court” within the meaning of Section 96 of the B.N.A Act, and accordingly that the members of the Board should have been appointed by the Governor-General and not (aa provided) by Section 5 of the Railway and Municipal Board Act of Ontario, Rs. O. 1914, Ch. 186, by the Lieutenant-Governor in Council). This question was fully considered by the Supreme Court and was decided by that Court against the appellants. But in consequence of the view taken by their Lordships on other points in the case it became unnecessary for them to consider it; and accordingly the point was not argued before the Board, and their Lordships express no opinion upon it.”

20. The law on the subject is expounded much in the same way as it was enunciated in Toronto Ry. Co. v. City of Toronto, (1919) 46 (Canadian) D.L.R 547 in Cooley's Constitutional Limitations, 8th Edn. In the last line of the text at p. 1355, Vol. II the learned author begins an enumeration of the circumstances as to how a de facto officer's right may come. It is said:’

“His color of right may come from an election or appointment made by some officer or body having colorable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law or made to fill the place of an officer illegally removed; or made in favour of a party not having the legal qualifications; or it may come from public acquiercence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be.”

21. The learned Advocate General placed great reliance on the succeeding para in that book beginning at p. 1357 and that para reads;

“…. But for the sake of order and regularity and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally.”

22. At the Bar there was serious controversy whether to raise the competency of the Chief Justice to hear and decide the appeals when they were taken up for hearing or in the present proceeding or in the appeal before the Supreme Court would amount to collateral attack, but the above quotation and the relevant passages extracted from the decision in Toronto Ry Co. v. City of Toronto, (1919) 46 (Canadian) D.L.R 647, must dispel all doubts that any such challenge would and do constitute a collateral attack which the law does not permit.

23. Certain observations in the case reported in Queen-Empress v. Ganga Ram, 16 All. 136 : (1894 A.W.N 39) may perhaps support the argument that the judgment would be invalid in case the appointment was constitutionally improper, but the actual decision was in favour of the validity of the appointment. That decision does not consider whether a collateral attack is permissible in law. The question there was whether the appointment of Burkitt, J., to act as a Judge of the Allahabad High Court had not been made in due time, under the High Court Act, 1861, with the result that there was no Court properly constituted to hear and decide cases. The same question of the validity of Mr. Justice Burkitt's appointment was raised before the Privy Council in Balwant Singh v. Rani Kishori, 20 ALL. 267 : (25 I.A.J 54). Lord Hob house who pronounced the judgment of the Board said that their Lordships cannot discover any ground for the objection, and that under the High Court Act it was left to the discretion of the appointing authority within what time the appointment shall be made and that it was not competent to a Court of Law to invent a re-striction not contemplated by the Legislature. The doubts the learned Judges of the Allahabad High Court raised in Queen-Empress v. Ganga Ram, 16 ALL. 136 : (1894 A.W.N 39), about the validity of the appointment and the observations they made regarding the validity of the judgment and orders pronounced by Burkitt, J., were made on the assumption that the appointment ought to have been made within a reasonable time after the happening of the vacancy. The Privy Council decision shows that assumption was unwarranted.

24. On the authorities referred to earlier in this order I would therefore hold that there is no substance in the first ground urged in support of these applications for leave to appeal. It was urged that this Court in granting leave need not proceed to actually decide the issue. No doubt that is true, but there is high authority of the Privy Council that even when a question of the present nature is raised if the contention is without foundation it would be idle to allow an appeal to argue about it. See Bhagat Singh v. Emperor, A.I.R (18) 1931 P.C 111 : (32 Cr. L.J 727). There special leave was sought on the ground that the constitution of a special Tribunal for the trial of the offenders who were convicted in that case was ultra vires the Government of India Act. Lord Dunedin's judgment in that case opens with the following observations:

“This case does not fall within the strict rule that has been again and again laid down that this Board does not and will not act as a tribunal of criminal appeal, because here the objection, if it were good, would go to the root of the jurisdiction. But it is subject to the ordinary criterion which is applied to all petitions for special leave to appeal, to wit, that leave will not be granted where upon the face of the application it is plain that on the merits it is bound to fail.”

25. The authorities cited embolden me to take the, view that the question is devoid of merit and I decline to grant leave on this ground.

26. From the standpoint of the approach that I have made to these petitions it is only Article 376(2) of the Constitution of India that comes up for construction. That occurs in, part XXI. Temporary and Transitional Provisions, and on the language of the clause quoted elsewhere in this order I am not inclined to think that a substantial question of law as to the interpretation of the Constitution within the meaning of Article 132(1) is involved here.

27. The next question is whether there is anything in the merits of the case to warrant a certification that this is a fit case for appeal. The grounds urged before us in Support of that ground merely involved the question of the appreciation of the approver's evidence and the form of the judgment. It was contended that this Court had not independently applied its mind to the questions involved in the case. The judgment speaks just the other way and the argument that the judgment does not satisfy the requirement of law is puerile. As for the question whether the Court went wrong in I placing reliance upon the approver's evidence I should say it is hardly a matter that could be made the subject of an appeal to the Supreme Court.

28. In a recent decision of the Federal Court of India, pronounced on 24-1-1950, his Lordship Mahajan, J. observed that though the Federal Court was no longer bound by Privy Council practice and precedents the Court saw no reason to depart from the principles which have been laid down by the Privy Council defining the limits within which interference with the course of criminal justice dispensed in the subordinate Courts is warranted See Kapildeo Singh v. The King, A.I.R (37) 1950 F.C 80 : (51 Cr. L.J 1057). His Lordship then proceeded to refer to a number of Privy Council decisions bearing on the subject and quotes from some of them. From the decisions in Dal Singh v. Emperor, 44 Cal. 876 : A.I.R (4) 1917 P.C 25 : 18 Cr. L.J 471 the following quotation is made:

“According to the practice of the Judicial Committee in dealing with an appeal in a criminal case, the general principle is established that the Sovereign in Council does not act in the exercise of the prerogative right to review the course of justice in criminal cases in the free fashion of a fully constituted Court of Criminal Appeal. The exercise of the prerogative takes place only where it is shown that injustice of a serious and substantial character has occurred. A mere mistake on the part of the Courts below, as for example, in the admission of improper evidence, will not suffice if it has not led to injustice of a grave character. Nor do the Judicial Committee advise interference merely because they themselves would have taken a different view of evidence admitted. Such questions are, as a general rule, treated as being for the final decision of the Courts below.”

29. Referring to Otto George Gfeller v. The King, A.I.R (30) 1943 P.C 211 : 45 Cr. L.J 241 it is observed:

“Sir George Rankin pointed out that for them to interfere with a criminal sentence there must be something so irregular or go outrageous as to shook the very basis of justice and that misdirection as such, even irregularity as such, will not suffice and that there must be something which in the particular case deprives the accused of the substance of fair trial and the protection of the law.”

30. Ibrahim v. The King, (1914) A.C 599 : A.I.R (1) 1914 P.C 155 : 15 Cr. L.J 326 is one of the cases referred to in Kapildeo Singh v. The King, A.I.R (37) 1950 P.C 80 : (51 Cr. L.J 1057) and there Lord Sumner defined the practice as to the grant of leave to appeal in the following words:

“Their Lordships' practice has been repeatedly defined. Leave to appeal is not granted except where some clear departure from the requirements of Justice exists, Riel v. Reg., (1885) 10 A.C 675 : (55 L.J.P.C 28), nor unless by a disregard of the forms of legal process, or by some violation of the principles of natural justice or otherwise substantial and grave injustice has been dons, Dillet's case, (1887) 12 A.C 459 : (36 W.R 81). It is true that these are cases of applications for special leave to appeal, but the Board has repeatedly treated applications for leave to appeal and the hearing of criminal appeals as being upon the same footing, Riel v. reg, (1885) 10 A.C 675 : (55 L.J.P.C 28). The Board cannot give leave to appeal where the grounds suggested could not sustain the appeal itself and conversely would have sufficed for the grant of permission to bring it,”

31. The sole question is whether any ground mentioned in these cases as would constitute a proper ground for granting leave to appeal has been made out. I should think one such ground has not even been stated at the Bar in support of these applications. The case depended mainly on the approver's testimony and circumstantial evidence. The appeal was argued elaborately for two days and the Bench found that there was material corroboration to the evidence of the approver from circumstances and from the direct testimony of P.Ws 5, 9 and 10. P.Ws 5 and 9 are the sisters of accused 2 and P.W 10 their brother. The approver is their maternal uncle.

32. Damodaran was last seen alive getting into the house of accused 2 late on the night of 18-12-1122, There is not only the evidence of the approver but also of the witnesses referred to above that both accused 1 and 2 were there during that night. Other adult persons in the house that night were only the approver and the aged and infirm parents of accused 2. Damodaran's dead body was recovered two days later from the bottom of the Vembanad lake not far away from the house of accused 2. The medical evidence fully supported the approver's story that death was caused by strangulation. When the body was taken out from the backwaters a rope was seen tied round its waist and there was a heavy stone attached to it. During the early hours of the morning of the 19th P. ws. 5, 9 and 10 awoke from their sleep by the noise and disturbance coming from the room where accused 1 and 2 were sleeping. Soon they saw the body of a person being brought out from the room and carried to the backwater side and then taken in a Canoe out into the backwaters by the two accused persons and the approver. Soon after they returned without the body. There was no explanation from the side of the defence as to what happened to Damodaran after he arrived at the house. No doubt the defence did not admit the fact he came there that night, but that fact has been independently proved. In the trial Court's judgment was given a catalogue of the material points on which the approver's evidence stood corroborated by direct or circumstantial evidence. In my view, no conclusion other than that on which the trial Court arrived and with which the Bench that heard the appeals agreed could have been come to in the case. This ground must also therefore fail.

33. The two applications, Cri. M.P Nos. 67 and 68 will therefore stand dismissed.

Sankaran, J.:— I agree with the order proposed by my learned brother and also with the grounds stated by him in support of his conclusion. At the same time, I think it is desirable and proper that the specific points raised by the petitioners are examined on their merits also. The legality of the appointment of His Lordship Sri C. Kunhi Raman, C.J is challenged by the petitioners mainly on two grounds. The grounds of disabilities or disqualifications urged against him are (1) that prior to the date of his appointment as Chief Justice, he had completed 60 years of age and (2) that he had held office as the Chairman of the Public Service Commission in the United State of Travancore and Cochin. It has to be examined whether these are real disabilities or disqualifications which would invalidate his appointment as Chief Justice of this Court.

34. The United State of Travancore and Cochin was formed on 1-7-1949 as per the Covenant entered into by the Rulers of Travancore and Cochin with the concurrence and guarantee of the Government of India. As per Article 10 of the Covenant, a Legislative Assembly was constituted for the United State. Article 11 of the Covenant provided that

“Until a constitution framed or adopted by the Legislature comes into operation, His Highness the Raj Pramukh shall have power to make and promulgate ordinances for the peace and good government of the United State.”

35. Such Ordinances were to be in force for a period of six months. By promulgating Ordinance No. II[2] of 1124, the High Court for the United State was established. This Ordinance was replaced by the Unite State of Travancore and Cochin High Court Act, 1125 (v[5] of 1125), passed by the Legislature. This Act came into force on 28-12-1949. On 16-7-1949 His Highness the Raj Pramukh promulgated Ordinance VI[6] of 1124 for the establishment of a Public Service Commission for the United State. This Ordinance was in fores till 16-1-1950. A Public Service Commission was accordingly appointed with Sri C. Kunhi Raman as its Chairman. For the continuance of the Public Service Commission from 16-1-1949 upto 26-1-1950, Act I [1] of 1850 was passed by the Legislature, On 20-1-1960, Sri C. Kunhi Raman resigned the Chairmanship of the Public Service Commission. On the same day, his resignation was accepted, and he was appointed as Chief Justice of the this Court, by His Highness the Raj Pramukh. On the date of such appointment, he was above 60 years of age. Clause (1) of Section 9 of the High Court Act, is relied on by the petitioners in support of their contention that no person above the age of 60 can be appointed as a Judge of the High Court The clause runs as follows:

“Every Judge of the High Court shall be appointed by the Raj Pramukh by a arrant under his hand and seal and every permanent Judge shall hold office until he attains the age of 60”

36. This clause has no doubt fixed the normal retiring age of a Judge of the High Court at 60. A similar age limit is fixed by Clause (1) of Article 217 of the Indian constitution also. But the expression “every permanent Judge shall hold office until he attains the age of sixty years” in clause (1) of S. 9 cannot be construed to mean that it operates as an absolute bar against a Judge being retained in service beyond the age of sixty years or that a Judge on completing sixty years of age becomes disqualified to hold office. To sustain any such construction, the clause must be enlarged by the addition of some such expression like “and shall not hold office after the age of sixty years”. The language used in the clause in question is clear and there is nothing ambiguous about it, and hence there is no justification in attempting to enlarge the plain meaning of the clause by resorting to an unwarranted interpretation. It is one of the fundamental canons of interpretation that provisions in a Statute entailing disabilities should be strictly construed. The provision under consideration only goes to the extent of stating that a Judge shall hold office until he is sixty. To read into the clause, by way of implication, a prohibition beyond that age, would not be construing the provision, but would be altering it and enlarging still further the provision which the Legislature has thought fit to make. Such a construction is not permissible. The provision as it stands, appears to have been enacted to ensure security of tenure of office of the Judges of the High Court up to the prescribed age limit. Daring that period, they cannot be removed at the mere will of the authority concerned, but only on grounds of misbehaviour or of the infirmity of mind or body. Proviso (b) to clause (i) of Section 9 of the High Court Act, is to this effect. Article 217 of the Indian constitution also contains such a provision and the procedure to be followed has also been prescribed therein. But when the prescribed age limit is reached, a Judge can be retired without adopting such a procedure and without assigning any reason. Beyond this, the age limit as fixed in the Statute appears to have no particular significance.

37. Thera it nothing in the High Court Act or in the Indian Constitution to indicate that a person who is qualified and fit to hold office as a High Court Judge would be deemed to the disqualified and unfit for the place merely because he has passed the age of sixty ears in fact no such age limit finds a place among the qualications prescribed for a High Court Judge, in clause (2) of 8-9, High Court Act, and in clause (2) of Article 217 of the Indian constitution There is also no provision expressly prohibiting the appointment, by the competent authority, of a person who is duly qualified and fit and who is above sixty years of age. as a High Court Judge. On the other hand Article 224 of the Indian Constitution provides for entertaining the services of retired High Court Judges on the High Court Bench under certain circumstances.

38. So far as His Lordship, Sri C. Kunhi Raman C.J is concerned, the petitioners have no contention that he does not possess the qualifications prescribed by clause (2) of Section 9 of the High Court Act, or that his appointment as Chief Justice was not made by the competent authority entitled to make the appointment. The Act does not prohibit the appointing authority from appointing a duly qualified person above the age of sixty years as a Judge of this Court, nor is there anything in the Act disentitling such a person on being duly appointed as a Judge, from functioning as such. Thus, it is clear that there is no substance in the petitioner's contentions that the Chief Justice's appointment contravened and offended the provisions of the High Court Act and that the appointment is invalid for that reason. He was holding office as Chief Justice when the Indian Constitution came into force on 26-1-1950. On the same day, the President of the Indian Republic issued an order as contemplated by clause (2) of Article 376 of the Constitution, directing that Sri C. Kunhi Raman, C.J shall continue to hold office until and including 25-1-1952. No doubt it is not an order of appointment but is only an order fixing the period of service of the present Chief Justice. All the same, it is clear that the order has the effect of ratifying the initial appointment made by His Highness the Raj Pramukh and of accepting the appointment as a proper and valid one. Article 376 of the Constitution contains a temporary and transitional provision. It empowered the President to fix the period of service of those Judges of the High Courts in the States specified in Part B of sch. 1 of the Constitution, who were holding office at the commencement of the Constitution. The President could fix such period notwithstanding anything contained in cls. (1) and (2) of Article 217, but subject to the proviso to clause (1). This means that in exercising the power under clause (2) of Article 376, the President could act as if cls. (1) and (2) of Article 217 did not exist. It is in clause (1) that the age limit of 60 years is fixed. Strictly and literally construing clause (2) of art. 376, it is clear that the President could ignore Clause (1) of Article 217 and fix the retiring date of the Judges specified in clause (2) of Article 376, no matter whether that date is either above or below the age of sixty of the Judges concerned. It is not for the Court to examine the propriety or the policy underlying such a provision. It has to be remembered that it is only a temporary and transitional provision. Exigencies of service might probably have induced the Legislature to make such a provision in the Constitution. Whatever that be, the provision is there and. the President in the exercise of the power conferred by that provision has directed Sri C. Kunhi Raman, C.J to continue to hold office until and including 25-1-1952. There is nothing to doubt the validity of that order.

39. The second ground urged by the petitioners may now be considered. Clause (5) of S. 3, United State of Travancore and Cochin Public Service Commission Ordinance (vi[6] of 1124) is relied on by the petitioners in support of their contention that by reason of having been the Chairman of the Public Service Commission in the State, Sir C. Kunhi Raman had become ineligible for being appointed as Chief Justice of this Court. Clause (5) is as follows:

“On ceasing to hold office, the Chairman and other members of the Public Service Commission shall be ineligible for further employment under the Government of the United State of Travancore and Cochin.”

40. The bar imposed by the clause is against further employment under the Government. The question is whether a Judgeship of the High Court can be deemed to be an employment under Government. This question naturally and necessarily raises the further question regarding the constitutional position of the Judges of the High Court. Professor W.S Holdsworth, an eminent jurist, has contributed an article on this subject and it is published at pp. 25 to 34 of the Law Quarterly Review, Vol. XLVIII (1932). The following observations made by him while discussing the scope and limitation of the expressions ‘Persons in His Majesty's service, and ‘Officers in the service of His Majesty’, are helpful in understanding the constitutional position of the Judges of the High Courts in India.

“The expression ‘Persons in His Majesty's service’ includes only those persons who are empowered to act as His Majesty's agents or servants, and who are by virtue of this relation of service, bound to obey the orders of His Majesty as to the mode in which they carry out their duties. But the Crown's powers to act through orders given to its servants, though wide, are not unlimited. Its powers are limited by the boundaries set by the law to its prerogative. It is only within the sphere of the prerogative that the Crown can act by orders given to its servants. Therefore it would seem that the expression “persons in. His Majesty's service” must be confined to those servants of the Crown who are appointed by the Crown to act as its agents or servants in the exercise of its prerogative powers…. The test whether or not a person is a person in His Majesty's service in the strict sense, or in a loose or general sense, does not depend upon the question whether or not the person is paid by the Crown. Nor does it depend upon the question whether the person is appointed and can be dismissed by the Crown. The Justices of the Peace are appointed and can be dismissed by the Crown, but that does not make them persons in the service of the Crown, because they are not persons who act as the agents of the Crown in the exercise of its prerogative. Now, if this test be applied to the Judges of the Supreme Court of Judicature, it is quite obvious that they are not persons in His Majesty's service nor are their offices in the service of His Majesty…. It is only the officials of the executive Government, who can properly be said to be persons in His Majesty's service, or to hold offices in the service of His Majesty,”

41. It is abundantly clear from these observations that the judicial tenure is essentially different from employments under the executive government. This aspect has been elaborately dealt with by William A. Robson, another eminent jurist, in his book “Justice and Administrative Law” (2nd Ed.) The following passage found at p. 42 of that book, is very instructive:

“The Judiciary is, in effect, part of the public service of the Crown. But a Judge is not ‘employed’ in the sense that a civil servant is employed. He fills a public office, which is by no means the same thing: and part of his independence consists in the fact that no one can give him orders as to the manner in which he is to perform his work ‘Like the more fortunate practitioners in some professions, he owns no man master’. The only subordination which he knows in his official capacity is that which he owes to the existing body of legal doctrine enunciated by his brethren, past and present, on the Bench, and the Legislative enactments of the King in Parliament. The Administrator of Public Services, on the other hand, Is an employed person per excellence.”

42. The independent status of the Judges, so much emphasised in the above quotations, has been fully recognised by the Indian Constitution. The Judge's tenure of office is made secure. He can be removed from office only by an order of the President, passed after an address by each House of Parliament, supported by a majority of not less than two-thirds of the members present and voting, for such removal on the ground of proved misbehaviour or incapacity. His salary is made a charge on the Consolidated Fund of the State. Almost similar provisions are contained in the United State of Travancore and Cochin High Court Act also. Thus, under the Act, the independent status of the Judges of the High Court had been recognised even before the commencement of the Indian Constitution. The High Court itself was established by His Highness the Raj Pramukh promulgating an Ordinance as contemplated by the Covenant to which the Rulers of Travancore and Cochin and the Government of India are parties, and by which the United State was framed. Article 12 of the Covenant provided that in the event of a difficult situation arising at any time before a constitution is framed or adopted by the Legislature, the Raj Pramukh may, with the prior concurrence of the Government of India, by Proclamation, assume to himself, all or any of the powers vested in or exercisable by any authority or body within the United State. The proviso to that Article is to the following effect:

“Provided that nothing in this Articles shall authorise the Raj Pramukh to assume to himself any of the powers vested in or exercisable by a High Court or to suspend either in whole or in part the operation of any law relating to a High Court.”

43. It has to be remembered that the Government of India had concurred in this Covenant and had guaranteed all its provisions. Thus it is seen that even at the time of the formation of the United State, the independent status of the High Court was recognised. Viewed in all these aspects, it is clear that the holding of the office of a Judge of the High Court cannot be said to be an employment under the Government of the United State of Travancore and Cochin. It follows, therefore, that the ban imposed by clause (5) of 8.3, Public Service Commission Ordinance did not stand in the way of Sri C. Kunhi Raman being appointed as the Chief Justice of this Court on 20-1-1950 and that such appointment has not contravened the provision. The appointment cannot be deemed to be invalid for that reason either. Thus the second ground urged by the petitioners also fails.

44. The appointment of Sri C. Kunhi Raman as the Chief Justice of this Court is seen to have been made with the approval and as per the direction of the Government of India. A communication to that effect, dated 16-1-1950, was sent from the Government of India to the Government, of the United State. In view of Article 13 of the Covenant, the State Government was bound to carry out that direction. The Article is as follows:

“Until a constitution framed or adopted by the Legislature comes into operation, the Raj Pramukh and the Council of Ministers shall, in the exercise of their functions, comply with Bach directions, if any, as may from time to time be given by the Government of India.”

45. It was only 19-1-1950 that the State Assembly passed a resolution adopting the Indian Constitution as the Constitution for the State also. To the same effect a Proclamation was issued by the Raj Pramukh on 25-1-1950. Until that date Article 13 of the Covenant was in full force. The direction issued by the Government of India on 16-1-1950 regarding the appointment of Sri C. Kunhi Raman as the Chief Justice of the Court, was perfectly within the limits of the power reserved with them as per this Article, and such direction did not offend the provisions of any law in force in the State. The appointment having been duly made under such circumstances, its validity cannot now be called in question.

46. The grounds urged by the petitioners are devoid of any force or substance and it cannot be said that this is a fit case for appeal to the Supreme Court. The applications are therefore dismissed.

47. Applications dismissed.