The State vs Tadlapalli Kishtiah

This is a reference by the Munsiff Magistrate at Karimnagar u/s 432, Code of Criminal Procedure. He has given his opinion that Ss. 13 to 21, Hyderabad Public Security Act 12 of 1348 F. are inconsistent with the fundamental rights as mentioned under the Constitution and hence void under Article 13(2) of the Constitution. He has therefore referred the said point for our decision under the provisions of the said Section .

A careful reading of the Section 432, Criminal Procedure Code. will show that where any Court is satisfied that in a case pending before it, the determination of any constitutional point with regard to the validity of any Act, Ordinance or Regulation is necessary for the disposal of the case then only a reference can be made to a High Court under that Section . In this case a charge-sheet was filed and some evidence was recorded. At that state the case was transferred from some other Court to the Court below and an objection to the validity of the said section was raised and the Court has referred the case to us. In our opinion, the Court ought to have come to the conclusion that the determination of question of the validity of the impugned sections was necessary; otherwise the accused will be held responsible for the contravention of those sections. In this case the accused were charge-sheeted for helping the members of the Communist party by supplying to them two seers of country liquor, one pot of Sendhi and two chickens. It is alleged that by these acts, they helped the members of the Communist party which was declared unlawful. It was therefore necessary for the Magistrate, first of all, to decide whether the accused did actually supply the said articles to the members of the Communist party; and if so, whether their acts amounted to helping the activities of the Communist party so as to bring the offence within Section 13, Hyderabad Public Security Act, 1348 F. Unless the Magistrate comes to a conclusion in the affirmative on both these points, the question of contravention of the sections of the Hyderabad Public Security Act does not arise. It was therefore the duty of the Magistrate, first of all, to decide these questions and then if his decision was against the accused on those points, it is only then that it could be said the question of the validity of these Section s arises for determination. It is clear from the opinion of the Magistrate and the records of the case that the Magistrate has not reached that stage and therefore his reference is premature. We therefore reject the reference. This order will govern the connected references.