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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) Nos. 6219-6220 OF 2012
Kamlesh Kumar & Ors. … Petitioners
Versus
The State of Jharkhand & Ors. … Respondents
J U D G E M E N T
H.L. GOKHALE, J
These Special Leave Petitions (Criminal) seek to challenge the
judgment and order dated 19.7.2012, whereby a Learned Single Judge of the
Jharkhand High Court dismissed the two Writ Petitions bearing Nos. Writ
Petition Nos.95 & 112 of 2003 filed by Shri Kamlesh Kumar and three others,
all children of one Dr. K.M. Prasad who worked earlier as the Director of
Animal Husbandry department in Government of Bihar.
They are being
prosecuted under the provisions of Foreign Exchange Regulation Act, 1973
(in short FERA), and those cases have been transferred to the Special Judge hearing the Fodder scam cases.
In the above referred Criminal Writ Petitions they had challenged
the transfer of those cases to the Special Court by contending that the
transfer order was bad on various grounds,
the principal amongst them being
that the State Government had no jurisdiction to authorise the Special Judge to try these cases under FERA.
Those Criminal Writ Petitions have
been rejected, and hence these Special Leave Petitions (Criminal) have been
filed.
Facts leading this Criminal Petition are as follows:-
2. The above referred Dr. K.M. Prasad, father of the petitioners,
was working earlier as the Director of Animal Husbandry department,
Government of Bihar. He is being prosecuted along with some others by the
Central Bureau of Investigation (C.B.I.) in the Court of Special Judge at
Ranchi for conspiracy to defraud the State Government to the extent of
Rs.7,09,92,000/- during 1980-90 on the basis of fake allotment letters
purportedly issued by him for the purchase of medicines. It is claimed
that fake supplies were shown as made by the suppliers, and the money
withdrawn towards such fake allotments was misappropriated by the accused
persons.
3. During the course of investigation it was realized that the
amount involved was much more, i.e. Rs.19,81,66,460/- approximately, and
that the accused Dr. K.M. Prasad had acquired huge movable as well as
immovable assets in his own name, and in the name of his children and
others at different places.
The said Dr. K.M. Prasad and his children were
also therefore prosecuted in the case arising out of this investigation,
and charges have already been submitted by the CBI against them, and the
cases are pending in the court of Special Judge CBI at Ranchi.
4. It was further revealed during the course of investigation,
that Mr. Kamlesh Kumar and three others, children of Dr. K.M. Prasad, had
received huge amounts of Foreign Exchange over U.S. $3,15,000 and British
£1000.
It was suspected that these remittances were not actually genuine
gifts as claimed by them, but were amounts arranged by certain persons
involved in the animal husbandry scam in violation of the provisions of
FERA.
It was alleged that they had violated the provisions of Section 9(1)
(a) and (b) and 64(2) of the FERA, and rendered themselves liable to be
prosecuted under Section 56 of
the said Act.
5. The Enforcement Director accordingly filed cases against the
petitioners before the Chief Judicial Magistrate Ranchi for taking
cognizance under Section 56 of FERA.
The Enforcement Director however,
realized that many of the offenders in the FERA cases were also accused in
the cases which were pending before the Special Judge in the Fodder scam
cases, and the documents relied upon and the witnesses to be examined were
common.
The Director, therefore, wrote to the State Government on
25.1.2002 seeking to have these cases tried by the same court.
Accordingly, the Law Secretary of the Government of Jharkhand wrote to the
Registrar General of the High Court on 2.3.2002 and on 25.4.2002.
Thereafter, the full Court of Jharkhand High Court passed a resolution on
25.4.2002, to empower the Special Judge, CBI Animal Husbandry scam cases,
to try the cases of FEMA, 1999.
(This is because in the meanwhile, from
1.6.2000, FERA had been replaced by the Foreign Exchange Management Act,
1999 – FEMA for short).
Accordingly a notification was issued by the State
of Jharkhand on 17.5.2002, empowering the Special Judge CBI (AHD Scam
cases) to try the cases under FEMA. Pursuant to that notification, the
Complaint filed on 23.5.2002 before the Chief Judicial Magistrate, Ranchi
was transferred by order dated 31.5.2002, for trial to the court of the Learned Additional Judicial Commissioner cum Special Judge CBI (AHD Scam cases) Ranchi.
6. This made the petitioners file the above referred Criminal Writ
Petitions to quash the notification dated 17.5.2002. The Learned Single
Judge of the Jharkhand High Court at Ranchi dismissed the said Writ
Petitions by his judgment and order dated 19.7.2012. It is this order
which is under challenge in the present Special Leave Petitions (Criminal).
7. The notification issued by the Jharkhand Government dated
17.5.2002 reads as follows:-
“JHARKHAND GOVERNMENT
LAW (JUSTICE), DEPARTMENT
NOTIFICATION
RANCHI dated 17th May, 2002
Sr. Prabhu Tiwari, Special Judge, CBI (A.H.D Scam cases), Ranchi, is
being authorized for disposal of cases of FEMA, 1979, in addition to
his own works in the light of letter No. 3449/APPTT dated 06/05/2002
of Jharkhand High Court, Ranchi.
By the order of Governor
(Prashant Kumar) Secretary to Government
Law(Justice) Department
Jharkhand, Ranchi
Memo No. 1-A/court-Gathan-103/2001-1111/J Ranchi dated 17th May 2002
Copy to, Superintendent, State Press, Post-Doranda, Ranchi for
publishing the same in the next state gazette.
Secretary to Government
Law (Justice) Department
Jharkhand, Ranchi”
This notification had been issued in the light of letter dated 6.5.2002
from the Registrar General of the High Court of Jharkhand, which reads as
follows:-
“Office:-501449
Res:-503024
Fax No: 0651-501114
No. 3449/APPT
Dated, Ranchi 06/05/2002
IBRAR HASSAN
Registrar General High Court of Jharkhand, Ranchi
To
The Secretary to the Government
Law (Judl.) Department, Govt. of Jharkhand, Ranchi
Sir
With reference to your Letter No. 1/A/Court-Estab-103/2001 J 531
dated 02/03/2002, I am directed to say that the Court has been pleased
to resolve that Sri Prabhu Tiwary, Special Judge, C.B.I. (AHD Scam
cases) at Ranchi be vested with the Powers to try cases under Foreign
Exchange Management Act, 1999.
I am further directed to say that since the vesting of this
power has to be effective before 31st May, 2002 immediate notification
to this effect may be issued.
Yours faithfully
Registrar General
06.05.2002”
Submissions on behalf of the Petitioners:-
8. It was firstly submitted on behalf of the petitioners that the
transfer of appellants’ prosecution under FERA / FEMA from the Magistrate’s
Court to the Court of the Special Judge was unlawful, since the disputed
transfer was being made to a Court which had no jurisdiction to try the
offence.
In this context, it was submitted by learned senior counsel Mr.
Shekhar Naphade appearing for the petitioners that for the offences for
which the petitioners were being prosecuted under Section 56 of FERA, the
punishment did not exceed 7 years of imprisonment.
Since we are concerned
with sub-section (1) of Section 56, we may reproduce the said sub-section.
We may note at this stage that though FERA came to be repealed and replaced
by FEMA with effect from 1.6.2000, in view of Section 49 (4) of FEMA, all
offences committed under FERA continue to be governed by the provisions of
FERA, as if that Act had not been repealed.
This Section 56 (1) of FERA
reads as follows:-
“56. Offences and prosecution-
(1) Without prejudice to any
award of penalty by the adjudicating officer under this Act, if
any person contravenes any of the provisions of this Act [other
than section 13, clause (a) of sub-section (1) of [section 18,
section 18A], clause (a) of sub-section (1) of section 19, sub-
section (2) of section 44 and sections 57 and 58], or of any
rule, direction or order made thereunder he shall, upon
conviction by a court, be punishable-
(i) in the case of an offence the amount or value involved in
which exceeds one lakh of rupees, with imprisonment for a term
which shall not be less than six months, but which may extend to
seven years and with fine:
Provided that the court may, for any adequate and special
reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than six months;
(ii) in any other case, with imprisonment for a term which may
extend to three years or with fine or with both.”
9. It was then submitted that the punishment being less than 7
years, as provided under the second entry of Part-II of First Schedule to
Cr.P.C., the offences which are punishable with imprisonment for three
years and upwards but not more than seven years, and are cognizable and non-
bailable offences, are triable by the Magistrate of the first class.
The
State Government was therefore, not competent to transfer the prosecution
under Section 56 of FERA from the Court of Chief Judicial Magistrate to the
Court of the Special Judge.
This is because if so permitted it will result into denial of one right of appeal to the petitioner.
10. (i) Reliance was placed in support of this proposition on the
judgment of a Constitution Bench of this Court in the case of A.R.
Antulay v. R.S. Nayak and Anr. reported in 1988 (2) SCC 602, and
particularly paragraphs 55, 56, 77, 78 and 91 thereof to submit that this
transfer will reduce the right of appellants to appeal.
The transfer of the prosecution against the petitioner A.R. Antulay, from the Court of the
Special Judge to the High Court of Bombay was held to be in violation of
the Fundamental Rights of the petitioner, and therefore, without
jurisdiction and null and void. It was held that the right of the
petitioner to prefer an appeal against the decision of the Special Judge to
the High Court was taken away by such a transfer.
(ii) Reliance was also placed in this behalf on a judgment of a Division
Bench of Delhi High Court in the case of A.S. Impex Limited & Ors. v. Delhi
High Court & Ors. reported in 107 (2003) Delhi Law Times 734. In that
matter, the Court was concerned with the administrative order passed by the
High Court to transfer cases filed under Section 138 of the Negotiable
Instrument Act, 1881, from the Courts of Magistrates to the Courts of
Additional Sessions Judges. The High Court relied upon A.R. Antulay
(supra) and held that to deal with the dishonour of cheques, a special
jurisdiction was conferred on the Metropolitan Magistrates or Judicial
Magistrates First Class, to try the offences under Section 138 of the
Negotiable Instrument Act 1881, and that jurisdiction could not be taken away by transferring these matters to the Sessions Courts.
11. It was also submitted, that the transfer of the cases could not
have been effected by the High Court without following the procedure laid
down under Section 407 of the Cr.P.C., and impugned orders of transfer of
cases were therefore bad in law.
Reply on behalf of the Respondents:-
12. The arguments of the learned counsel for the petitioner were
countered by Mr. P.P. Malhotra, learned Additional Solicitor General
appearing for the respondents.
He firstly drew our attention to the fact
that in Antulay’s case, as recorded in paragraph 19 of that judgment, the
petitioner was being prosecuted under Section 7(1) of the Criminal Law
Amendment Act 1952, and Section 7(1) of the said Act specifically mandated
that offences in such cases shall be tried by a Special Judge only.
13. Mr. Malhotra submitted that when the statute made such a
specific provision, the prosecution could not be withdrawn from the
specified court and transferred even to the High Court.
It was in this
context that Shri A.R. Antulay had suffered a prejudice in as much as his
right of appeal to the High Court would get affected.
In the present
case, there was no such specific provision that the offence shall be tried
by a Magistrate only.
In support of his submissions Mr. Malhotra drew our
attention to a specific judgment of this Court in Ranvir Yadav v. State of
Bihar reported in 1995 (4) SCC 392
where the legal proposition as stated in
A.R. Antulay (supra) came to be explained in paragraph 14 thereof. In
Ranvir Yadav (supra) this Court was concerned with the administrative power
of the High Court to transfer cases.
While upholding the order of
transfer, this is what this Court observed in paragraph 14 thereof:-
“14. Coming now to A.R. Antulay case we find that the
principles of law laid down in the majority judgment, to which
Mr. Jethmalani drew our attention have no manner of application
herein. There questions arose as to
whether (i) the High Court
could transfer a case triable according to Criminal Law
Amendment Act, 1952 (“1952 Act” for short) by a Special Court
constituted thereunder to another court, which was not a Special
Court and
(ii) the earlier order of the Supreme Court
transferring the case pending before the Special Court to the
High Court was valid and proper. In answering both the questions
in the negative the learned Judges, expressing the majority
view, observed that (i) Section 7(1) of the 1952 Act created a
condition which was sine qua non for the trial of offences under
Section 6(1) of the said Act.
The condition was that
notwithstanding anything contained in the Code of Criminal
Procedure or any other law the said offence shall be triable by
Special Judges only.
By express terms therefore it took away the
right of transfer of cases contained in the Code to any other
court which was not a Special Court and this was notwithstanding
anything contained in Sections 406 and 407 of the Code and (ii)
the earlier order of the Supreme Court transferring the case to
the High Court was not authorised by law, namely, Section 7(1)
of the 1952 Act and the Supreme Court, by its direction, could
not confer jurisdiction on the High Court of Bombay to try any
case for which it did not possess such jurisdiction under the
scheme of the 1952 Act.
As in the present case the 5th Court was
competent under the Code to conduct the sessions trial, the
order of transfer conferring jurisdiction on that court and the
trial that followed cannot be said to be bad in law.”
(emphasis supplied)
14. One of the submissions for the petitioners was that since the
offences under Section 56(1) are punishable with imprisonment for a term
which may extend to seven years only, they are triable by Magistrates of
the First Class only. Mr. Malhotra, pointed out that it would be so if the
offences are cognizable as per the second entry of Part-II of First
Schedule to Cr.P.C. In the present case, the offences were non-cognizable
under Section 56 of FERA, and the petitioners were being prosecuted
thereunder. Section 62 of the FERA had made the offences punishable under
Section 56 as non-cognizable ones. Section 62 of FERA reads as follows:-
“62. Certain offences to be non-cognizable- Subject to the
provisions of section 45 and notwithstanding anything contained
in the [Code of Criminal Procedure, 1973 (2 of 1974], an offence
punishable under section 56 shall be deemed to be non-cognizable
within the meaning of that Code.”
Consideration of rival submissions
15. It had been submitted on behalf of the petitioner that one of
the submissions accepted in A.R. Antulay (supra) was that his right to file
an appeal would be affected. Mr. Malhotra pointed out that in the present
case such a situation would not arise. An appeal would lie certainly to
the High Court against the decision of the Special Judge. It would always
be argued that if the prosecution was conducted before the Court of the
Magistrate, an appeal would lie to the Court of Sessions, and then a
revision would be available to the High Court. Thus by transferring the
case from the Court of Magistrate to a Sessions Judge, the opportunity of
the petitioner to avail of a revision would be affected. Mr. Malhotra
however pointed out that there was no right to file a revision as such, as
distinguished from the right of filing an appeal to the High Court. The
petitioner can not claim to have suffered any prejudice on that count,
since there was no vested right to file a revision. In support of this
proposition he relied upon the following paragraph from the Constitution
Bench judgment of this Court in Pranab Kumar Mitra v. The State of West
Bengal and Anr. reported in 1959 Supp 1 SCR 63 at page 70:-
“In our opinion, in the absence of statutory provisions, in
terms applying to an application in revision, as there are those
in s. 431 in respect of criminal appeals, the High Court has the
power to pass such orders as to it may seem fit and proper, in
exercise of its revisional jurisdiction vested in it by s. 439
of the Code. Indeed, it is a discretionary power which has to
be exercised in aid of justice. Whether or not the High Court
will exercise its revisional jurisdiction in a given case, must
depend upon the facts and circumstances of that case. The
revisional powers of the High Court vested in it by s. 439 of
the Code, read with s. 435, do not create any right in the
litigant, but only conserve the power of the High court to see
that justice is done in accordance with the recognised rules of
Criminal Jurisprudence, and that subordinate criminal courts do
not exceed their jurisdiction, or abuse their powers vested in
them by the Code. On the other hand, as already indicated a
right of appeal is a statutory right which has got to be
recognised by the courts, and the right to appeal, where on
exists, cannot be denied in exercise of the discretionary power
even of the High Court……”
16. It was further pointed out by Mr. Malhotra that this view had
been followed by the High Courts, and for reference he referred to a
Division Bench judgment of Bombay High Court in Suraj Prakash Seth and
another v. R.K. Gurnani and another reported in 1975 Mh.L.J 588, where the
proposition laid down in P.K. Mitra (supra) had been referred to in
support. The High Court observed in paragraph 15 which reads as follows:-
“15. …. The point which we wish to emphasise, however, is
that a party to a proceeding cannot as a matter of right come to
this Court for revision of any order passed by the lower Court,
but it is a matter of practice that such applications are
entertained by this Court as a matter of expediency. But no
party has any vested right either in procedure or in practice.”
17. The First Schedule to Cr.P.C. deals with the Classification of
Offences. Part-1 thereof deals with the offences under the Indian Penal
Code, Part-II deals with classification of offences against other laws,
which would include offences under laws such as FERA. The petitioners were
being prosecuted under Section 56 of FERA, wherein the maximum punishment
that could be awarded was up to seven years. The second entry of this Part-
II laid down that such offences were triable by Magistrate of first Class,
provided those offences were cognizable offences. As noted earlier,
Section 62 of FERA made the offence under Section 56 non-cognizable.
Besides, Section 61 (1) of FERA stated that ‘it shall be lawful’ for the
Magistrate to pass the necessary sentence under Section 56. It does not
state that the Magistrate alone is empowered to pass the necessary
sentence, in which case the proceeding cannot be transferred from his
Court.
This provision is not like the one in the case of A.R. Antulay
(supra) where under Section 7(1) of Criminal Law Amendment 1952 Act, the
offence was ‘triable by special judge only’. In the instant case it was
merely lawful for the Magistrate to try the offences under Section 61, but
the Court of Magistrate was not a court of exclusive jurisdiction as in
Antulay’s case.
The offence was a non-cognizable one, and therefore it was
not mandatory that it ought to have been tried only by the Magistrate of
the First Class.
Thus the petitioner could not claim that the Magistrate
had the special jurisdiction to try the offence, and that the State could
not transfer the case to the Sessions Judge. In view of what is stated
above, it cannot be said that the Magistrate’s Court had an exclusive
jurisdiction to try the cases relating to violations of the provisions of
FERA, and those cases could not be transferred to the Special Judge.
In
the present case the accused were common, many of the witnesses would be
common, and so also their evidence.
The administrative power of the High
Court in such a situation to effect transfer has been upheld in the case of
Ranvir Yadav (supra), and there is no reason for this Court to take a
different view in the facts of the present case.
18. The petitioner had relied upon the judgment of a Division
Bench of Delhi High Court in the case of A.S. Impex Limited (supra), on the
question of transfer of a proceeding. Mr. Malhotra pointed out that
although the judgment in Ranvir Yadav (supra) was brought to the notice of
the Division Bench in that matter, the Division Bench had
erroneously held that the reliance thereon to be a ‘misplaced’ one, as can
be seen from the sentence at the end of paragraph 12 of that judgment.
This judgment has been distinguished and found to be not laying down a good
law by another Division Bench of Delhi High Court in Mahender Singh v. High
Court of Delhi and Anr. reported in 2009 (151) Company Cases 485 (Delhi).
In that matter, the Court was concerned with transfer of prosecutions under
Securities and Exchange Board Act, 1992 from the Magistrate’s Court to
Court of Sessions, and the High Court has held it to be valid and
permissible. The Division Bench in Mahender Singh (supra) has in terms
held that reliance on the judgment in A.R. Antulay (supra) to oppose such
transfer was of no help, and rightly so. There is no difficulty in stating
that A.S. Impex Limited (supra) does not lay down the correct proposition
of law.
19. The High Court does have the power to transfer the cases and
appeals under Section 407 of the Cr.P.C. which is essentially a judicial
power. Section 407 (1) (c) of Cr.P.C. lays down that, where it will tend
to the general convenience of the parties or witnesses, or where it was
expedient for the ends of justice, the High Court could transfer such a
case for trial to a Court of Sessions. That does not mean that the High Court cannot transfer cases by exercising its administrative power of superintendence which is available to it under
Article 227 of the Constitution of India. While repelling the objection to
the exercise of this power, this Court observed in paragraph 13 of Ranvir
Yadav (supra) as follows:-
“13. We are unable to share the above view of Mr.
Jethmalani. So long as power can be and is exercised purely for
administrative exigency without impinging upon and prejudicially
affecting the rights or interests of the parties to any judicial
proceeding we do not find any reason to hold that administrative
powers must yield place to judicial powers simply because in a
given circumstance they coexist……”
20. For the reasons stated above, there is no substance in the
objections raised by the petitioners.
The High Court has looked into
Section 407 of Cr.P.C., referred to Articles 227 and 235 of the
Constitution of India, and thereafter in its impugned judgment has observed
as follows:-
“Having perused Section 407 Cr.P.C. and Article 227 and
235, I have no hesitation to hold that this Court either in the
administration side or in the judicial side has absolute
jurisdiction to transfer any criminal cases pending before one
competent Court to be heard and decided by another Court within
the jurisdiction of this Court. This Court in its
administrative power can issue direction that cases of
particular nature shall be heard by particular court having
jurisdiction.”
In view of what is stated earlier, we have no reason to take a view
different from the one taken by the High Court.
21. Both the Special Leave Petitions (Crl.) are, therefore,
dismissed.
…………..……………………..J.
[ H.L. Gokhale ]
New Delhi
Dated : September 26, 2013
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NOS. 6219-6220 OF 2012
Kamlesh Kumar & Ors. … Petitioners
Versus
The State of Jharkhand & Ors. …Respondents
J U D G M E N T
MADAN B. LOKUR, J
While I endorse the views of my learned Brother Gokhale, I have
thought it appropriate to separately express my opinion in the matter.
2. The facts of the case have been succinctly brought out by my learned
Brother and it is not necessary to repeat them.
Validity of the notification of transfer
3. The notification authorizing the Special Judge to dispose of cases
under the Foreign Exchange Management Act, 1999 and thereby effectively
transferring the petitioners’ case pending before the Magistrate to the
Special Judge is said to be unlawful since the transfer is to a court
that has no
jurisdiction to try the offence.
4. Part II of the First Schedule to the Code of Criminal Procedure, 1973
(for short the Code) provides that for an offence punishable with
imprisonment for three years and upwards but not more than seven years, the
case would be triable by a Magistrate of the first class. Section 56 of the
Foreign Exchange Regulation Act, 1973 (for short the FERA) now repealed by
the Foreign Exchange Management Act, 1999 provides, inter alia, that for a
violation of its provisions, the maximum punishment would be imprisonment
which may extend to seven years and with fine. Therefore, effectively
transferring the petitioners’ case to a Special Judge (of the rank of a
Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge)
functioning under the Criminal Law Amendment Act, 1952 (for short the CLA
Act) meant its trial by a court that lacked jurisdiction over the subject
matter. In support of this contention, great reliance was placed on some
passages in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602.
5. The question in Antulay (to the extent relevant) was whether this
Court could have transferred the case against Antulay from the Special
Judge appointed under the Criminal Law Amendment Act, 1952 to the High
Court. (See R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183). This Court
answered the question in the negative and three principal reasons, relevant
to the present
case, were given for this conclusion.
6. Firstly, it was noted that Section 7 of the CLA Act gave exclusive
jurisdiction to the Special Judge to try the offences under sub-section (1)
of Section 6 of the CLA Act. Section 7 of CLA Act reads as follows:-
“Cases triable by Special Judges: - (1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1898 (5 of 1898), or in
any other law the offences specified in sub-section (1) of Section 6
shall be triable by Special Judges only.
(2) Every offence specified in sub-section (1) of Section 6 shall be
tried by the Special Judge for the area within which it was
committed, or where there are more Special Judges than one for such
area, by such one of them as may be specified in this behalf by the
State Government.
(3) When trying any case, a Special Judge may also try any offence
other than an offence specified in Section 6 with which the accused
may, under the Code of Criminal Procedure, 1898 (5 of 1898), be
charged at the same trial.”
7. This Court noted that since it is only the Special Judge who could
try offences under Section 6 of CLA Act, the case against Antulay could not
have been transferred to the High Court. It was noted that the trial by a
Special Judge is a sine qua non for the trial of offences under Section 6
of CLA Act and even this Court could not pass an order not authorized by
law.
8. Secondly, Section 7(1) of CLA Act provides for trial of the case by
the Special Judge notwithstanding anything contained in the Code.
Therefore, the statutory power available to this Court to transfer cases
under Section 406 of
the Code was statutorily taken away. Additionally, Section 406 of the Code
only enabled this Court to transfer cases and appeals from one High Court
to another High Court or from one criminal court subordinate to one High
Court to another criminal court of equal or superior jurisdiction
subordinate to another High Court. Section 406 of the Code did not empower
this Court to transfer a case from the Special Judge under the CLA Act to
the High Court and even if it did, that power was taken away by the CLA
Act. Section 406 of the Code reads as follows:-
“406. Power of Supreme Court to transfer cases and appeals:-
(1) Whenever it is made to appear to the Supreme Court
that an order under this section is expedient for the ends of
justice, it may direct that any particular case or appeal be
transferred from one High Court to another High Court or from a
Criminal Court subordinate to one High Court to another Criminal
Court of equal or superior jurisdiction subordinate to another High
Court.
(2) The Supreme Court may act under this section only on the
application of the Attorney-General of India or of a partly
interested, and every such application shall be made by motion,
which shall, except when the applicant is the Attorney-General of
India or the Advocate-General of the State, be supported by
affidavit or affirmation.
(3) Where any application for the exercise of the powers conferred
by this section is dismissed, the Supreme Court may, if it is of
opinion that the application was frivolous or vexatious, order the
applicant to pay by way of compensation to any person who has
opposed the application such sum not exceeding one thousand rupees
as it may consider appropriate in the circumstances of the case.”
9. The third reason related to the power of transfer available to this
Court under Article 142 of the Constitution. In this context, reference
was made to a
Constitution Bench decision of this Court in Prem Chand Garg v. Excise
Commissioner, 1963 Supp (1) SCR 885 wherein it was observed that:
“The powers of this Court are no doubt very wide and they are intended
to be and will always be exercised in the interest of justice. But
that is not to say that an order can be made by this Court which is
inconsistent with the fundamental rights guaranteed by Part III of the
Constitution. An order which this Court can make in order to do
complete justice between the parties, must not only be consistent with
the fundamental rights guaranteed by the Constitution, but it cannot
even be inconsistent with the substantive provisions of the relevant
statutory laws.”
10. Since the order of this Court transferring the case from the Special
Judge to the High Court was contrary to the statutory law and (as held in a
later part in Antulay) contrary to Article 14 and Article 19 of the
Constitution, the order of transfer was liable to be set aside.
11. In this context, this Court also noted that the power to create or
enlarge jurisdiction is legislative in character and no court, whether
superior or inferior or both combined, could enlarge the jurisdiction of a
court. On this basis, inter alia, this Court concluded that the transfer of
Antulay’s case from the Special Judge to the High Court was erroneous in
law.
12. Antulay subsequently came up for consideration in Ranbir Yadav v.
State of Bihar, (1995) 4 SCC 392. In paragraph 14 of the Report, it
was
noted that the express language of Section 7(1) of the CLA Act, took away
the right of transfer of cases contained in the Code to any other court
which was not a Special Court and
that this was notwithstanding anything contained in Section 406 and Section
407 of the Code. This is what was said in this regard:
“Coming now to A.R. Antulay case we find that the principles of law
laid down in the majority judgment, to which Mr. Jethmalani drew our
attention have no manner of application herein. There questions arose
as to whether (i) the High Court could transfer a case triable
according to Criminal Law Amendment Act, 1952 (“1952 Act” for short)
by a Special Court constituted thereunder to another court, which was
not a Special Court and (ii) the earlier order of the Supreme Court
transferring the case pending before the Special Court to the High
Court was valid and proper. In answering both the questions in the
negative the learned Judges, expressing the majority view, observed
that (i) Section 7(1) of the 1952 Act created a condition which was
sine qua non for the trial of offences under Section 6(1) of the said
Act. The condition was that notwithstanding anything contained in the
Code of Criminal Procedure or any other law the said offence shall be
triable by Special Judges only. By express terms therefore it took
away the right of transfer of cases contained in the Code to any other
court which was not a Special Court and this was notwithstanding
anything contained in Sections 406 and 407 of the Code and (ii) the
earlier order of the Supreme Court transferring the case to the High
Court was not authorised by law, namely, Section 7(1) of the 1952 Act
and the Supreme Court, by its direction, could not confer jurisdiction
on the High Court of Bombay to try any case for which it did not
possess such jurisdiction under the scheme of the 1952 Act.”
13. In so far as the present case is concerned, it is apparent from a
reading of Section 56 of the FERA as also Section 61 of the FERA that
exclusive jurisdiction has not been conferred on the Magistrate to try
cases relating to a violation of the provisions of the FERA. Absent
jurisdictional exclusivity, the principle of law laid down in Antulay is
not applicable and the Special Judge could have been conferred jurisdiction
to try the case against the petitioners.
Right of appeal
14. It was contended that assuming that at law the case could validly
have been transferred to the Special Judge, the petitioners are seriously
prejudiced in as much as their right of appeal from the decision of a
Magistrate to a Sessions Judge is taken away. Due to this prejudicial
action, which was taken by the High Court without hearing the petitioners,
the notification conferring power on the Special Judge to try the case
should be struck down.
15. The right of appeal available to the petitioners in the present case
is not taken away by transferring the case from the Magistrate to the
Special Judge. The petitioners continue to have the right to appeal, but
it is only the forum that has changed. They can now prefer an appeal from
the order of the Special Judge to the High Court. Therefore, it is not as
if the petitioners are denuded of any right to agitate their cause in a
superior forum by the transfer of the
case to the Special Judge.
16. It is now well settled that a litigant has neither a right to appeal
to a particular forum nor to insist on a particular procedure being
followed in his case. This was settled way back in Rao Shiv Bahadur Singh
v. State of Vindhya Pradesh, 1953 SCR 118 wherein a Constitution Bench of
this Court held:
“A person accused of the commission of an offence has no fundamental
right to trial by a particular court or by a particular
procedure, except insofar as any constitutional objection by way of
discrimination or the violation of any other fundamental right may be
involved.”
17. This dictum was followed in Union of India v. Sukumar Pyne, AIR
1966 SC 1206.
18. Similarly, In Maria Cristina De Souza Sodder v. Amria Zurana Pereira
Pinto, (1979) 1 SCC 92 it was held somewhat more elaborately:
“It is no doubt well-settled that the right of appeal is a substantive
right and it gets vested in a litigant no sooner the lis is commenced
in the Court of the first instance, and such right or any remedy in
respect thereof will not be affected by any repeal of the enactment
conferring such right unless the repealing enactment either expressly
or by necessary implication takes away such right or remedy in respect
thereof…….. This position, has also been settled by the decisions of
the Privy Council and this Court (vide Colonial Sugar Refining Company
Ltd. v. Irving, [1905] AC 369 and Garikapatti Veeraya v. N. Subbiah
Choudhury, 1957 SCR 488 but the forum where such appeal can be lodged
is indubitably a procedural matter and, therefore, the appeal, the
right to which has arisen under a repealed Act, will have to be lodged
in a forum provided for by the repealing Act.”
19. In T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177 it was observed in
paragraph 17 of the Report that a person accused of the commission of an
offence has no right to trial by a particular procedure. This view was
followed in M/s Rai Bahadur Seth Shreeram Durgaprasad v. Director of
Enforcement, (1987) 3 SCC 27.
20. Therefore, it cannot be seriously urged that the petitioners were
prejudiced by a change of the appellate forum.
Procedure for transfer:
21. Was the transfer of the case by the High Court at all permissible in
law without following the procedure laid down in Section 407 of the Code?
22. A similar question came up for consideration in Ranbir Yadav and this
Court noted the duality of power in the High Court. It was observed that
the High Court has the judicial power of transfer of a case from one court
to another under Section 407 of the Code. It also has the administrative
power to transfer a case from one court to another under Article 227 of the
Constitution.
23. In the context of Article 227 of the Constitution, this Court
observed in paragraph 12 of Ranbir Yadav that the High Court has
superintendence over all courts and tribunals throughout the territories in
relation to which it exercises jurisdiction and that in its plenary
administrative power, the High Court could transfer a case from one court
to another. It was further held that
so long as the power is exercised for administrative exigency, without
impinging upon or prejudicially affecting the rights and interests of the
parties to any judicial proceeding, there is no reason to hold that
administrative powers must yield to judicial powers simply because in a
given circumstance they coexist.
24. In the present case, the High Court could have exercised its judicial
power of transfer under Section 407 of the Code (if called upon to do so)
and it could also have exercised its administrative power of transfer under
Article 227 of the Constitution, which it did, as is evident from the
letter dated 6th May 2002 issued by the Registrar General of the High Court
of Jharkhand to the Secretary to the Government, Law (Judl.) Department,
Government of Jharkhand. The fact that for an administrative exigency, the
High Court decided to exercise its plenary administrative power does not
per se lead to the conclusion that the transfer of the case from the
Magistrate to the Special Judge was unlawful. The legality of the action
cannot be called in question in this case since no prejudice has been
caused to the petitioners by such a transfer.
Right of revision
25. Is the petitioners’ right of revision taken away if the case is
transferred from the Magistrate to the Special Judge?
26. This question proceeds on the assumption that there is a right of
revision.
A Constitution Bench of this Court in Pranab Kumar Mitra v.
State of West Bengal 1959(1) Suppl. SCR 63 set the “right” issue at rest
several decades ago.
It was held that the power to revise an order is a
discretionary power which is to be exercised in aid of justice and the
exercise of that power will depend on the facts and circumstances of a
given case.
It was held:
“The revisional powers of the High Court vested in it by Section 439
of the Code, read with Section 435, do not create any right in the
litigant, but only conserve the power of the High Court to see that
justice is done in accordance with the recognized rules of criminal
jurisprudence, and that subordinate Criminal Courts do not exceed
their jurisdiction, or abuse their powers vested in them by the Code.”
27. In Akalu Ahir v. Ramdeo Ram, (1973) 2 SCC 583
this Court once again
adverted to the power of revision invested in a superior Court and
described it as an “extraordinary discretionary power” to set right grave
injustice.
Clearly, therefore, it cannot be said that a litigant has a
“right” to have an adverse order revised by a superior court. On the
contrary, if there is any “right” to revise, it is invested in the superior
court.
28. While the revisional power of a superior court actually enables it to
correct a grave error, the existence of that power does not confer
any corresponding right on a litigant.
This is the reason why, in a given case,
a superior court may decline to exercise its power of revision, if the
facts and circumstances of the case do not warrant the exercise of its
discretion.
This is also the reason why it is felicitously stated that a
revision is not a right but only a “procedural facility” available to a
party. If the matter is looked at in this light, the transfer of a case
from a Magistrate to a Special Judge does not take away this procedural
facility available to the petitioners.
It only changes the forum and as
already held above, the petitioners have no right to choose the forum in
which to file an appeal or move a petition for revising an interlocutory
order.
29. Reliance was placed by learned counsel for the petitioners on a
Division Bench decision of the Delhi High Court in A.S. Impex Ltd. v. Delhi
High Court, 107 (2003) DLT 734.
This reliance is not only misplaced but, in
my opinion, that decision should be overruled as not laying down the
correct law.
30. In that case, the High Court administratively decided to transfer
cases filed under Section 138 of the Negotiable Instruments Act, 1881 on or
before 31st December 2001 and pending before the Magistrates to the
Additional Sessions Judges.
A notification for transfer of cases was
accordingly issued and this was struck down by the Delhi High Court by,
inter alia, relying on the law laid down in Antulay.
As already noted
above, the law laid down in
Antulay has limited application and is not relevant to cases such as the
one we are dealing with.
This was clearly explained in Ranbir Yadav but the
Delhi High Court ignored the observations of this Court without much ado by
holding:
“In that case the Court transferred the case from the Court of one
Magistrate to the Court of another Magistrate for the reason that there was
shortage of accommodation in the first Court.
That is not the case in hand.
It was not a case where the jurisdiction was transferred from the Court of
Magistrate to the Court of Sessions.”
The Delhi High Court also proceeded
on an erroneous basis that the exercise of plenary administrative power
available to the High Court to transfer cases meant the bypassing or
circumventing of statutory provisions empowering Magistrates to try
cases under Section 138 of the Negotiable Instruments Act, 1881 and
conferring that jurisdiction on Additional Sessions Judges.
The High Court
did not correctly appreciate the power available to a High Court under
Article 227 of the Constitution.
31. The error in A.S. Impex was correctly understood by the Division
Bench of the Delhi High Court in Mahender Singh v. High Court of Delhi,
(2009) 151 Comp Cas 485 (Delhi) and in N.G. Sheth v. C.B.I., 151 (2008) DLT
89.
The Division Bench in both cases took a view different from that in
A.S. Impex.
However, both decisions having been rendered by
Division Benches, A.S. Impex, could not be overruled.
Therefore, I complete the
formality and overrule A.S. Impex since it does not lay down the correct
law in this regard.
32. For the reasons above mentioned, the Special Leave Petitions are
dismissed.
……………………..J
( Madan B. Lokur )
New Delhi;
September 26, 2013
-----------------------
33
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) Nos. 6219-6220 OF 2012
Kamlesh Kumar & Ors. … Petitioners
Versus
The State of Jharkhand & Ors. … Respondents
J U D G E M E N T
H.L. GOKHALE, J
These Special Leave Petitions (Criminal) seek to challenge the
judgment and order dated 19.7.2012, whereby a Learned Single Judge of the
Jharkhand High Court dismissed the two Writ Petitions bearing Nos. Writ
Petition Nos.95 & 112 of 2003 filed by Shri Kamlesh Kumar and three others,
all children of one Dr. K.M. Prasad who worked earlier as the Director of
Animal Husbandry department in Government of Bihar.
They are being
prosecuted under the provisions of Foreign Exchange Regulation Act, 1973
(in short FERA), and those cases have been transferred to the Special Judge hearing the Fodder scam cases.
In the above referred Criminal Writ Petitions they had challenged
the transfer of those cases to the Special Court by contending that the
transfer order was bad on various grounds,
the principal amongst them being
that the State Government had no jurisdiction to authorise the Special Judge to try these cases under FERA.
Those Criminal Writ Petitions have
been rejected, and hence these Special Leave Petitions (Criminal) have been
filed.
Facts leading this Criminal Petition are as follows:-
2. The above referred Dr. K.M. Prasad, father of the petitioners,
was working earlier as the Director of Animal Husbandry department,
Government of Bihar. He is being prosecuted along with some others by the
Central Bureau of Investigation (C.B.I.) in the Court of Special Judge at
Ranchi for conspiracy to defraud the State Government to the extent of
Rs.7,09,92,000/- during 1980-90 on the basis of fake allotment letters
purportedly issued by him for the purchase of medicines. It is claimed
that fake supplies were shown as made by the suppliers, and the money
withdrawn towards such fake allotments was misappropriated by the accused
persons.
3. During the course of investigation it was realized that the
amount involved was much more, i.e. Rs.19,81,66,460/- approximately, and
that the accused Dr. K.M. Prasad had acquired huge movable as well as
immovable assets in his own name, and in the name of his children and
others at different places.
The said Dr. K.M. Prasad and his children were
also therefore prosecuted in the case arising out of this investigation,
and charges have already been submitted by the CBI against them, and the
cases are pending in the court of Special Judge CBI at Ranchi.
4. It was further revealed during the course of investigation,
that Mr. Kamlesh Kumar and three others, children of Dr. K.M. Prasad, had
received huge amounts of Foreign Exchange over U.S. $3,15,000 and British
£1000.
It was suspected that these remittances were not actually genuine
gifts as claimed by them, but were amounts arranged by certain persons
involved in the animal husbandry scam in violation of the provisions of
FERA.
It was alleged that they had violated the provisions of Section 9(1)
(a) and (b) and 64(2) of the FERA, and rendered themselves liable to be
prosecuted under Section 56 of
the said Act.
5. The Enforcement Director accordingly filed cases against the
petitioners before the Chief Judicial Magistrate Ranchi for taking
cognizance under Section 56 of FERA.
The Enforcement Director however,
realized that many of the offenders in the FERA cases were also accused in
the cases which were pending before the Special Judge in the Fodder scam
cases, and the documents relied upon and the witnesses to be examined were
common.
The Director, therefore, wrote to the State Government on
25.1.2002 seeking to have these cases tried by the same court.
Accordingly, the Law Secretary of the Government of Jharkhand wrote to the
Registrar General of the High Court on 2.3.2002 and on 25.4.2002.
Thereafter, the full Court of Jharkhand High Court passed a resolution on
25.4.2002, to empower the Special Judge, CBI Animal Husbandry scam cases,
to try the cases of FEMA, 1999.
(This is because in the meanwhile, from
1.6.2000, FERA had been replaced by the Foreign Exchange Management Act,
1999 – FEMA for short).
Accordingly a notification was issued by the State
of Jharkhand on 17.5.2002, empowering the Special Judge CBI (AHD Scam
cases) to try the cases under FEMA. Pursuant to that notification, the
Complaint filed on 23.5.2002 before the Chief Judicial Magistrate, Ranchi
was transferred by order dated 31.5.2002, for trial to the court of the Learned Additional Judicial Commissioner cum Special Judge CBI (AHD Scam cases) Ranchi.
6. This made the petitioners file the above referred Criminal Writ
Petitions to quash the notification dated 17.5.2002. The Learned Single
Judge of the Jharkhand High Court at Ranchi dismissed the said Writ
Petitions by his judgment and order dated 19.7.2012. It is this order
which is under challenge in the present Special Leave Petitions (Criminal).
7. The notification issued by the Jharkhand Government dated
17.5.2002 reads as follows:-
“JHARKHAND GOVERNMENT
LAW (JUSTICE), DEPARTMENT
NOTIFICATION
RANCHI dated 17th May, 2002
Sr. Prabhu Tiwari, Special Judge, CBI (A.H.D Scam cases), Ranchi, is
being authorized for disposal of cases of FEMA, 1979, in addition to
his own works in the light of letter No. 3449/APPTT dated 06/05/2002
of Jharkhand High Court, Ranchi.
By the order of Governor
(Prashant Kumar) Secretary to Government
Law(Justice) Department
Jharkhand, Ranchi
Memo No. 1-A/court-Gathan-103/2001-1111/J Ranchi dated 17th May 2002
Copy to, Superintendent, State Press, Post-Doranda, Ranchi for
publishing the same in the next state gazette.
Secretary to Government
Law (Justice) Department
Jharkhand, Ranchi”
This notification had been issued in the light of letter dated 6.5.2002
from the Registrar General of the High Court of Jharkhand, which reads as
follows:-
“Office:-501449
Res:-503024
Fax No: 0651-501114
No. 3449/APPT
Dated, Ranchi 06/05/2002
IBRAR HASSAN
Registrar General High Court of Jharkhand, Ranchi
To
The Secretary to the Government
Law (Judl.) Department, Govt. of Jharkhand, Ranchi
Sir
With reference to your Letter No. 1/A/Court-Estab-103/2001 J 531
dated 02/03/2002, I am directed to say that the Court has been pleased
to resolve that Sri Prabhu Tiwary, Special Judge, C.B.I. (AHD Scam
cases) at Ranchi be vested with the Powers to try cases under Foreign
Exchange Management Act, 1999.
I am further directed to say that since the vesting of this
power has to be effective before 31st May, 2002 immediate notification
to this effect may be issued.
Yours faithfully
Registrar General
06.05.2002”
Submissions on behalf of the Petitioners:-
8. It was firstly submitted on behalf of the petitioners that the
transfer of appellants’ prosecution under FERA / FEMA from the Magistrate’s
Court to the Court of the Special Judge was unlawful, since the disputed
transfer was being made to a Court which had no jurisdiction to try the
offence.
In this context, it was submitted by learned senior counsel Mr.
Shekhar Naphade appearing for the petitioners that for the offences for
which the petitioners were being prosecuted under Section 56 of FERA, the
punishment did not exceed 7 years of imprisonment.
Since we are concerned
with sub-section (1) of Section 56, we may reproduce the said sub-section.
We may note at this stage that though FERA came to be repealed and replaced
by FEMA with effect from 1.6.2000, in view of Section 49 (4) of FEMA, all
offences committed under FERA continue to be governed by the provisions of
FERA, as if that Act had not been repealed.
This Section 56 (1) of FERA
reads as follows:-
“56. Offences and prosecution-
(1) Without prejudice to any
award of penalty by the adjudicating officer under this Act, if
any person contravenes any of the provisions of this Act [other
than section 13, clause (a) of sub-section (1) of [section 18,
section 18A], clause (a) of sub-section (1) of section 19, sub-
section (2) of section 44 and sections 57 and 58], or of any
rule, direction or order made thereunder he shall, upon
conviction by a court, be punishable-
(i) in the case of an offence the amount or value involved in
which exceeds one lakh of rupees, with imprisonment for a term
which shall not be less than six months, but which may extend to
seven years and with fine:
Provided that the court may, for any adequate and special
reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than six months;
(ii) in any other case, with imprisonment for a term which may
extend to three years or with fine or with both.”
9. It was then submitted that the punishment being less than 7
years, as provided under the second entry of Part-II of First Schedule to
Cr.P.C., the offences which are punishable with imprisonment for three
years and upwards but not more than seven years, and are cognizable and non-
bailable offences, are triable by the Magistrate of the first class.
The
State Government was therefore, not competent to transfer the prosecution
under Section 56 of FERA from the Court of Chief Judicial Magistrate to the
Court of the Special Judge.
This is because if so permitted it will result into denial of one right of appeal to the petitioner.
10. (i) Reliance was placed in support of this proposition on the
judgment of a Constitution Bench of this Court in the case of A.R.
Antulay v. R.S. Nayak and Anr. reported in 1988 (2) SCC 602, and
particularly paragraphs 55, 56, 77, 78 and 91 thereof to submit that this
transfer will reduce the right of appellants to appeal.
The transfer of the prosecution against the petitioner A.R. Antulay, from the Court of the
Special Judge to the High Court of Bombay was held to be in violation of
the Fundamental Rights of the petitioner, and therefore, without
jurisdiction and null and void. It was held that the right of the
petitioner to prefer an appeal against the decision of the Special Judge to
the High Court was taken away by such a transfer.
(ii) Reliance was also placed in this behalf on a judgment of a Division
Bench of Delhi High Court in the case of A.S. Impex Limited & Ors. v. Delhi
High Court & Ors. reported in 107 (2003) Delhi Law Times 734. In that
matter, the Court was concerned with the administrative order passed by the
High Court to transfer cases filed under Section 138 of the Negotiable
Instrument Act, 1881, from the Courts of Magistrates to the Courts of
Additional Sessions Judges. The High Court relied upon A.R. Antulay
(supra) and held that to deal with the dishonour of cheques, a special
jurisdiction was conferred on the Metropolitan Magistrates or Judicial
Magistrates First Class, to try the offences under Section 138 of the
Negotiable Instrument Act 1881, and that jurisdiction could not be taken away by transferring these matters to the Sessions Courts.
11. It was also submitted, that the transfer of the cases could not
have been effected by the High Court without following the procedure laid
down under Section 407 of the Cr.P.C., and impugned orders of transfer of
cases were therefore bad in law.
Reply on behalf of the Respondents:-
12. The arguments of the learned counsel for the petitioner were
countered by Mr. P.P. Malhotra, learned Additional Solicitor General
appearing for the respondents.
He firstly drew our attention to the fact
that in Antulay’s case, as recorded in paragraph 19 of that judgment, the
petitioner was being prosecuted under Section 7(1) of the Criminal Law
Amendment Act 1952, and Section 7(1) of the said Act specifically mandated
that offences in such cases shall be tried by a Special Judge only.
13. Mr. Malhotra submitted that when the statute made such a
specific provision, the prosecution could not be withdrawn from the
specified court and transferred even to the High Court.
It was in this
context that Shri A.R. Antulay had suffered a prejudice in as much as his
right of appeal to the High Court would get affected.
In the present
case, there was no such specific provision that the offence shall be tried
by a Magistrate only.
In support of his submissions Mr. Malhotra drew our
attention to a specific judgment of this Court in Ranvir Yadav v. State of
Bihar reported in 1995 (4) SCC 392
where the legal proposition as stated in
A.R. Antulay (supra) came to be explained in paragraph 14 thereof. In
Ranvir Yadav (supra) this Court was concerned with the administrative power
of the High Court to transfer cases.
While upholding the order of
transfer, this is what this Court observed in paragraph 14 thereof:-
“14. Coming now to A.R. Antulay case we find that the
principles of law laid down in the majority judgment, to which
Mr. Jethmalani drew our attention have no manner of application
herein. There questions arose as to
whether (i) the High Court
could transfer a case triable according to Criminal Law
Amendment Act, 1952 (“1952 Act” for short) by a Special Court
constituted thereunder to another court, which was not a Special
Court and
(ii) the earlier order of the Supreme Court
transferring the case pending before the Special Court to the
High Court was valid and proper. In answering both the questions
in the negative the learned Judges, expressing the majority
view, observed that (i) Section 7(1) of the 1952 Act created a
condition which was sine qua non for the trial of offences under
Section 6(1) of the said Act.
The condition was that
notwithstanding anything contained in the Code of Criminal
Procedure or any other law the said offence shall be triable by
Special Judges only.
By express terms therefore it took away the
right of transfer of cases contained in the Code to any other
court which was not a Special Court and this was notwithstanding
anything contained in Sections 406 and 407 of the Code and (ii)
the earlier order of the Supreme Court transferring the case to
the High Court was not authorised by law, namely, Section 7(1)
of the 1952 Act and the Supreme Court, by its direction, could
not confer jurisdiction on the High Court of Bombay to try any
case for which it did not possess such jurisdiction under the
scheme of the 1952 Act.
As in the present case the 5th Court was
competent under the Code to conduct the sessions trial, the
order of transfer conferring jurisdiction on that court and the
trial that followed cannot be said to be bad in law.”
(emphasis supplied)
14. One of the submissions for the petitioners was that since the
offences under Section 56(1) are punishable with imprisonment for a term
which may extend to seven years only, they are triable by Magistrates of
the First Class only. Mr. Malhotra, pointed out that it would be so if the
offences are cognizable as per the second entry of Part-II of First
Schedule to Cr.P.C. In the present case, the offences were non-cognizable
under Section 56 of FERA, and the petitioners were being prosecuted
thereunder. Section 62 of the FERA had made the offences punishable under
Section 56 as non-cognizable ones. Section 62 of FERA reads as follows:-
“62. Certain offences to be non-cognizable- Subject to the
provisions of section 45 and notwithstanding anything contained
in the [Code of Criminal Procedure, 1973 (2 of 1974], an offence
punishable under section 56 shall be deemed to be non-cognizable
within the meaning of that Code.”
Consideration of rival submissions
15. It had been submitted on behalf of the petitioner that one of
the submissions accepted in A.R. Antulay (supra) was that his right to file
an appeal would be affected. Mr. Malhotra pointed out that in the present
case such a situation would not arise. An appeal would lie certainly to
the High Court against the decision of the Special Judge. It would always
be argued that if the prosecution was conducted before the Court of the
Magistrate, an appeal would lie to the Court of Sessions, and then a
revision would be available to the High Court. Thus by transferring the
case from the Court of Magistrate to a Sessions Judge, the opportunity of
the petitioner to avail of a revision would be affected. Mr. Malhotra
however pointed out that there was no right to file a revision as such, as
distinguished from the right of filing an appeal to the High Court. The
petitioner can not claim to have suffered any prejudice on that count,
since there was no vested right to file a revision. In support of this
proposition he relied upon the following paragraph from the Constitution
Bench judgment of this Court in Pranab Kumar Mitra v. The State of West
Bengal and Anr. reported in 1959 Supp 1 SCR 63 at page 70:-
“In our opinion, in the absence of statutory provisions, in
terms applying to an application in revision, as there are those
in s. 431 in respect of criminal appeals, the High Court has the
power to pass such orders as to it may seem fit and proper, in
exercise of its revisional jurisdiction vested in it by s. 439
of the Code. Indeed, it is a discretionary power which has to
be exercised in aid of justice. Whether or not the High Court
will exercise its revisional jurisdiction in a given case, must
depend upon the facts and circumstances of that case. The
revisional powers of the High Court vested in it by s. 439 of
the Code, read with s. 435, do not create any right in the
litigant, but only conserve the power of the High court to see
that justice is done in accordance with the recognised rules of
Criminal Jurisprudence, and that subordinate criminal courts do
not exceed their jurisdiction, or abuse their powers vested in
them by the Code. On the other hand, as already indicated a
right of appeal is a statutory right which has got to be
recognised by the courts, and the right to appeal, where on
exists, cannot be denied in exercise of the discretionary power
even of the High Court……”
16. It was further pointed out by Mr. Malhotra that this view had
been followed by the High Courts, and for reference he referred to a
Division Bench judgment of Bombay High Court in Suraj Prakash Seth and
another v. R.K. Gurnani and another reported in 1975 Mh.L.J 588, where the
proposition laid down in P.K. Mitra (supra) had been referred to in
support. The High Court observed in paragraph 15 which reads as follows:-
“15. …. The point which we wish to emphasise, however, is
that a party to a proceeding cannot as a matter of right come to
this Court for revision of any order passed by the lower Court,
but it is a matter of practice that such applications are
entertained by this Court as a matter of expediency. But no
party has any vested right either in procedure or in practice.”
17. The First Schedule to Cr.P.C. deals with the Classification of
Offences. Part-1 thereof deals with the offences under the Indian Penal
Code, Part-II deals with classification of offences against other laws,
which would include offences under laws such as FERA. The petitioners were
being prosecuted under Section 56 of FERA, wherein the maximum punishment
that could be awarded was up to seven years. The second entry of this Part-
II laid down that such offences were triable by Magistrate of first Class,
provided those offences were cognizable offences. As noted earlier,
Section 62 of FERA made the offence under Section 56 non-cognizable.
Besides, Section 61 (1) of FERA stated that ‘it shall be lawful’ for the
Magistrate to pass the necessary sentence under Section 56. It does not
state that the Magistrate alone is empowered to pass the necessary
sentence, in which case the proceeding cannot be transferred from his
Court.
This provision is not like the one in the case of A.R. Antulay
(supra) where under Section 7(1) of Criminal Law Amendment 1952 Act, the
offence was ‘triable by special judge only’. In the instant case it was
merely lawful for the Magistrate to try the offences under Section 61, but
the Court of Magistrate was not a court of exclusive jurisdiction as in
Antulay’s case.
The offence was a non-cognizable one, and therefore it was
not mandatory that it ought to have been tried only by the Magistrate of
the First Class.
Thus the petitioner could not claim that the Magistrate
had the special jurisdiction to try the offence, and that the State could
not transfer the case to the Sessions Judge. In view of what is stated
above, it cannot be said that the Magistrate’s Court had an exclusive
jurisdiction to try the cases relating to violations of the provisions of
FERA, and those cases could not be transferred to the Special Judge.
In
the present case the accused were common, many of the witnesses would be
common, and so also their evidence.
The administrative power of the High
Court in such a situation to effect transfer has been upheld in the case of
Ranvir Yadav (supra), and there is no reason for this Court to take a
different view in the facts of the present case.
18. The petitioner had relied upon the judgment of a Division
Bench of Delhi High Court in the case of A.S. Impex Limited (supra), on the
question of transfer of a proceeding. Mr. Malhotra pointed out that
although the judgment in Ranvir Yadav (supra) was brought to the notice of
the Division Bench in that matter, the Division Bench had
erroneously held that the reliance thereon to be a ‘misplaced’ one, as can
be seen from the sentence at the end of paragraph 12 of that judgment.
This judgment has been distinguished and found to be not laying down a good
law by another Division Bench of Delhi High Court in Mahender Singh v. High
Court of Delhi and Anr. reported in 2009 (151) Company Cases 485 (Delhi).
In that matter, the Court was concerned with transfer of prosecutions under
Securities and Exchange Board Act, 1992 from the Magistrate’s Court to
Court of Sessions, and the High Court has held it to be valid and
permissible. The Division Bench in Mahender Singh (supra) has in terms
held that reliance on the judgment in A.R. Antulay (supra) to oppose such
transfer was of no help, and rightly so. There is no difficulty in stating
that A.S. Impex Limited (supra) does not lay down the correct proposition
of law.
19. The High Court does have the power to transfer the cases and
appeals under Section 407 of the Cr.P.C. which is essentially a judicial
power. Section 407 (1) (c) of Cr.P.C. lays down that, where it will tend
to the general convenience of the parties or witnesses, or where it was
expedient for the ends of justice, the High Court could transfer such a
case for trial to a Court of Sessions. That does not mean that the High Court cannot transfer cases by exercising its administrative power of superintendence which is available to it under
Article 227 of the Constitution of India. While repelling the objection to
the exercise of this power, this Court observed in paragraph 13 of Ranvir
Yadav (supra) as follows:-
“13. We are unable to share the above view of Mr.
Jethmalani. So long as power can be and is exercised purely for
administrative exigency without impinging upon and prejudicially
affecting the rights or interests of the parties to any judicial
proceeding we do not find any reason to hold that administrative
powers must yield place to judicial powers simply because in a
given circumstance they coexist……”
20. For the reasons stated above, there is no substance in the
objections raised by the petitioners.
The High Court has looked into
Section 407 of Cr.P.C., referred to Articles 227 and 235 of the
Constitution of India, and thereafter in its impugned judgment has observed
as follows:-
“Having perused Section 407 Cr.P.C. and Article 227 and
235, I have no hesitation to hold that this Court either in the
administration side or in the judicial side has absolute
jurisdiction to transfer any criminal cases pending before one
competent Court to be heard and decided by another Court within
the jurisdiction of this Court. This Court in its
administrative power can issue direction that cases of
particular nature shall be heard by particular court having
jurisdiction.”
In view of what is stated earlier, we have no reason to take a view
different from the one taken by the High Court.
21. Both the Special Leave Petitions (Crl.) are, therefore,
dismissed.
…………..……………………..J.
[ H.L. Gokhale ]
New Delhi
Dated : September 26, 2013
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NOS. 6219-6220 OF 2012
Kamlesh Kumar & Ors. … Petitioners
Versus
The State of Jharkhand & Ors. …Respondents
J U D G M E N T
MADAN B. LOKUR, J
While I endorse the views of my learned Brother Gokhale, I have
thought it appropriate to separately express my opinion in the matter.
2. The facts of the case have been succinctly brought out by my learned
Brother and it is not necessary to repeat them.
Validity of the notification of transfer
3. The notification authorizing the Special Judge to dispose of cases
under the Foreign Exchange Management Act, 1999 and thereby effectively
transferring the petitioners’ case pending before the Magistrate to the
Special Judge is said to be unlawful since the transfer is to a court
that has no
jurisdiction to try the offence.
4. Part II of the First Schedule to the Code of Criminal Procedure, 1973
(for short the Code) provides that for an offence punishable with
imprisonment for three years and upwards but not more than seven years, the
case would be triable by a Magistrate of the first class. Section 56 of the
Foreign Exchange Regulation Act, 1973 (for short the FERA) now repealed by
the Foreign Exchange Management Act, 1999 provides, inter alia, that for a
violation of its provisions, the maximum punishment would be imprisonment
which may extend to seven years and with fine. Therefore, effectively
transferring the petitioners’ case to a Special Judge (of the rank of a
Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge)
functioning under the Criminal Law Amendment Act, 1952 (for short the CLA
Act) meant its trial by a court that lacked jurisdiction over the subject
matter. In support of this contention, great reliance was placed on some
passages in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602.
5. The question in Antulay (to the extent relevant) was whether this
Court could have transferred the case against Antulay from the Special
Judge appointed under the Criminal Law Amendment Act, 1952 to the High
Court. (See R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183). This Court
answered the question in the negative and three principal reasons, relevant
to the present
case, were given for this conclusion.
6. Firstly, it was noted that Section 7 of the CLA Act gave exclusive
jurisdiction to the Special Judge to try the offences under sub-section (1)
of Section 6 of the CLA Act. Section 7 of CLA Act reads as follows:-
“Cases triable by Special Judges: - (1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1898 (5 of 1898), or in
any other law the offences specified in sub-section (1) of Section 6
shall be triable by Special Judges only.
(2) Every offence specified in sub-section (1) of Section 6 shall be
tried by the Special Judge for the area within which it was
committed, or where there are more Special Judges than one for such
area, by such one of them as may be specified in this behalf by the
State Government.
(3) When trying any case, a Special Judge may also try any offence
other than an offence specified in Section 6 with which the accused
may, under the Code of Criminal Procedure, 1898 (5 of 1898), be
charged at the same trial.”
7. This Court noted that since it is only the Special Judge who could
try offences under Section 6 of CLA Act, the case against Antulay could not
have been transferred to the High Court. It was noted that the trial by a
Special Judge is a sine qua non for the trial of offences under Section 6
of CLA Act and even this Court could not pass an order not authorized by
law.
8. Secondly, Section 7(1) of CLA Act provides for trial of the case by
the Special Judge notwithstanding anything contained in the Code.
Therefore, the statutory power available to this Court to transfer cases
under Section 406 of
the Code was statutorily taken away. Additionally, Section 406 of the Code
only enabled this Court to transfer cases and appeals from one High Court
to another High Court or from one criminal court subordinate to one High
Court to another criminal court of equal or superior jurisdiction
subordinate to another High Court. Section 406 of the Code did not empower
this Court to transfer a case from the Special Judge under the CLA Act to
the High Court and even if it did, that power was taken away by the CLA
Act. Section 406 of the Code reads as follows:-
“406. Power of Supreme Court to transfer cases and appeals:-
(1) Whenever it is made to appear to the Supreme Court
that an order under this section is expedient for the ends of
justice, it may direct that any particular case or appeal be
transferred from one High Court to another High Court or from a
Criminal Court subordinate to one High Court to another Criminal
Court of equal or superior jurisdiction subordinate to another High
Court.
(2) The Supreme Court may act under this section only on the
application of the Attorney-General of India or of a partly
interested, and every such application shall be made by motion,
which shall, except when the applicant is the Attorney-General of
India or the Advocate-General of the State, be supported by
affidavit or affirmation.
(3) Where any application for the exercise of the powers conferred
by this section is dismissed, the Supreme Court may, if it is of
opinion that the application was frivolous or vexatious, order the
applicant to pay by way of compensation to any person who has
opposed the application such sum not exceeding one thousand rupees
as it may consider appropriate in the circumstances of the case.”
9. The third reason related to the power of transfer available to this
Court under Article 142 of the Constitution. In this context, reference
was made to a
Constitution Bench decision of this Court in Prem Chand Garg v. Excise
Commissioner, 1963 Supp (1) SCR 885 wherein it was observed that:
“The powers of this Court are no doubt very wide and they are intended
to be and will always be exercised in the interest of justice. But
that is not to say that an order can be made by this Court which is
inconsistent with the fundamental rights guaranteed by Part III of the
Constitution. An order which this Court can make in order to do
complete justice between the parties, must not only be consistent with
the fundamental rights guaranteed by the Constitution, but it cannot
even be inconsistent with the substantive provisions of the relevant
statutory laws.”
10. Since the order of this Court transferring the case from the Special
Judge to the High Court was contrary to the statutory law and (as held in a
later part in Antulay) contrary to Article 14 and Article 19 of the
Constitution, the order of transfer was liable to be set aside.
11. In this context, this Court also noted that the power to create or
enlarge jurisdiction is legislative in character and no court, whether
superior or inferior or both combined, could enlarge the jurisdiction of a
court. On this basis, inter alia, this Court concluded that the transfer of
Antulay’s case from the Special Judge to the High Court was erroneous in
law.
12. Antulay subsequently came up for consideration in Ranbir Yadav v.
State of Bihar, (1995) 4 SCC 392. In paragraph 14 of the Report, it
was
noted that the express language of Section 7(1) of the CLA Act, took away
the right of transfer of cases contained in the Code to any other court
which was not a Special Court and
that this was notwithstanding anything contained in Section 406 and Section
407 of the Code. This is what was said in this regard:
“Coming now to A.R. Antulay case we find that the principles of law
laid down in the majority judgment, to which Mr. Jethmalani drew our
attention have no manner of application herein. There questions arose
as to whether (i) the High Court could transfer a case triable
according to Criminal Law Amendment Act, 1952 (“1952 Act” for short)
by a Special Court constituted thereunder to another court, which was
not a Special Court and (ii) the earlier order of the Supreme Court
transferring the case pending before the Special Court to the High
Court was valid and proper. In answering both the questions in the
negative the learned Judges, expressing the majority view, observed
that (i) Section 7(1) of the 1952 Act created a condition which was
sine qua non for the trial of offences under Section 6(1) of the said
Act. The condition was that notwithstanding anything contained in the
Code of Criminal Procedure or any other law the said offence shall be
triable by Special Judges only. By express terms therefore it took
away the right of transfer of cases contained in the Code to any other
court which was not a Special Court and this was notwithstanding
anything contained in Sections 406 and 407 of the Code and (ii) the
earlier order of the Supreme Court transferring the case to the High
Court was not authorised by law, namely, Section 7(1) of the 1952 Act
and the Supreme Court, by its direction, could not confer jurisdiction
on the High Court of Bombay to try any case for which it did not
possess such jurisdiction under the scheme of the 1952 Act.”
13. In so far as the present case is concerned, it is apparent from a
reading of Section 56 of the FERA as also Section 61 of the FERA that
exclusive jurisdiction has not been conferred on the Magistrate to try
cases relating to a violation of the provisions of the FERA. Absent
jurisdictional exclusivity, the principle of law laid down in Antulay is
not applicable and the Special Judge could have been conferred jurisdiction
to try the case against the petitioners.
Right of appeal
14. It was contended that assuming that at law the case could validly
have been transferred to the Special Judge, the petitioners are seriously
prejudiced in as much as their right of appeal from the decision of a
Magistrate to a Sessions Judge is taken away. Due to this prejudicial
action, which was taken by the High Court without hearing the petitioners,
the notification conferring power on the Special Judge to try the case
should be struck down.
15. The right of appeal available to the petitioners in the present case
is not taken away by transferring the case from the Magistrate to the
Special Judge. The petitioners continue to have the right to appeal, but
it is only the forum that has changed. They can now prefer an appeal from
the order of the Special Judge to the High Court. Therefore, it is not as
if the petitioners are denuded of any right to agitate their cause in a
superior forum by the transfer of the
case to the Special Judge.
16. It is now well settled that a litigant has neither a right to appeal
to a particular forum nor to insist on a particular procedure being
followed in his case. This was settled way back in Rao Shiv Bahadur Singh
v. State of Vindhya Pradesh, 1953 SCR 118 wherein a Constitution Bench of
this Court held:
“A person accused of the commission of an offence has no fundamental
right to trial by a particular court or by a particular
procedure, except insofar as any constitutional objection by way of
discrimination or the violation of any other fundamental right may be
involved.”
17. This dictum was followed in Union of India v. Sukumar Pyne, AIR
1966 SC 1206.
18. Similarly, In Maria Cristina De Souza Sodder v. Amria Zurana Pereira
Pinto, (1979) 1 SCC 92 it was held somewhat more elaborately:
“It is no doubt well-settled that the right of appeal is a substantive
right and it gets vested in a litigant no sooner the lis is commenced
in the Court of the first instance, and such right or any remedy in
respect thereof will not be affected by any repeal of the enactment
conferring such right unless the repealing enactment either expressly
or by necessary implication takes away such right or remedy in respect
thereof…….. This position, has also been settled by the decisions of
the Privy Council and this Court (vide Colonial Sugar Refining Company
Ltd. v. Irving, [1905] AC 369 and Garikapatti Veeraya v. N. Subbiah
Choudhury, 1957 SCR 488 but the forum where such appeal can be lodged
is indubitably a procedural matter and, therefore, the appeal, the
right to which has arisen under a repealed Act, will have to be lodged
in a forum provided for by the repealing Act.”
19. In T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177 it was observed in
paragraph 17 of the Report that a person accused of the commission of an
offence has no right to trial by a particular procedure. This view was
followed in M/s Rai Bahadur Seth Shreeram Durgaprasad v. Director of
Enforcement, (1987) 3 SCC 27.
20. Therefore, it cannot be seriously urged that the petitioners were
prejudiced by a change of the appellate forum.
Procedure for transfer:
21. Was the transfer of the case by the High Court at all permissible in
law without following the procedure laid down in Section 407 of the Code?
22. A similar question came up for consideration in Ranbir Yadav and this
Court noted the duality of power in the High Court. It was observed that
the High Court has the judicial power of transfer of a case from one court
to another under Section 407 of the Code. It also has the administrative
power to transfer a case from one court to another under Article 227 of the
Constitution.
23. In the context of Article 227 of the Constitution, this Court
observed in paragraph 12 of Ranbir Yadav that the High Court has
superintendence over all courts and tribunals throughout the territories in
relation to which it exercises jurisdiction and that in its plenary
administrative power, the High Court could transfer a case from one court
to another. It was further held that
so long as the power is exercised for administrative exigency, without
impinging upon or prejudicially affecting the rights and interests of the
parties to any judicial proceeding, there is no reason to hold that
administrative powers must yield to judicial powers simply because in a
given circumstance they coexist.
24. In the present case, the High Court could have exercised its judicial
power of transfer under Section 407 of the Code (if called upon to do so)
and it could also have exercised its administrative power of transfer under
Article 227 of the Constitution, which it did, as is evident from the
letter dated 6th May 2002 issued by the Registrar General of the High Court
of Jharkhand to the Secretary to the Government, Law (Judl.) Department,
Government of Jharkhand. The fact that for an administrative exigency, the
High Court decided to exercise its plenary administrative power does not
per se lead to the conclusion that the transfer of the case from the
Magistrate to the Special Judge was unlawful. The legality of the action
cannot be called in question in this case since no prejudice has been
caused to the petitioners by such a transfer.
Right of revision
25. Is the petitioners’ right of revision taken away if the case is
transferred from the Magistrate to the Special Judge?
26. This question proceeds on the assumption that there is a right of
revision.
A Constitution Bench of this Court in Pranab Kumar Mitra v.
State of West Bengal 1959(1) Suppl. SCR 63 set the “right” issue at rest
several decades ago.
It was held that the power to revise an order is a
discretionary power which is to be exercised in aid of justice and the
exercise of that power will depend on the facts and circumstances of a
given case.
It was held:
“The revisional powers of the High Court vested in it by Section 439
of the Code, read with Section 435, do not create any right in the
litigant, but only conserve the power of the High Court to see that
justice is done in accordance with the recognized rules of criminal
jurisprudence, and that subordinate Criminal Courts do not exceed
their jurisdiction, or abuse their powers vested in them by the Code.”
27. In Akalu Ahir v. Ramdeo Ram, (1973) 2 SCC 583
this Court once again
adverted to the power of revision invested in a superior Court and
described it as an “extraordinary discretionary power” to set right grave
injustice.
Clearly, therefore, it cannot be said that a litigant has a
“right” to have an adverse order revised by a superior court. On the
contrary, if there is any “right” to revise, it is invested in the superior
court.
28. While the revisional power of a superior court actually enables it to
correct a grave error, the existence of that power does not confer
any corresponding right on a litigant.
This is the reason why, in a given case,
a superior court may decline to exercise its power of revision, if the
facts and circumstances of the case do not warrant the exercise of its
discretion.
This is also the reason why it is felicitously stated that a
revision is not a right but only a “procedural facility” available to a
party. If the matter is looked at in this light, the transfer of a case
from a Magistrate to a Special Judge does not take away this procedural
facility available to the petitioners.
It only changes the forum and as
already held above, the petitioners have no right to choose the forum in
which to file an appeal or move a petition for revising an interlocutory
order.
29. Reliance was placed by learned counsel for the petitioners on a
Division Bench decision of the Delhi High Court in A.S. Impex Ltd. v. Delhi
High Court, 107 (2003) DLT 734.
This reliance is not only misplaced but, in
my opinion, that decision should be overruled as not laying down the
correct law.
30. In that case, the High Court administratively decided to transfer
cases filed under Section 138 of the Negotiable Instruments Act, 1881 on or
before 31st December 2001 and pending before the Magistrates to the
Additional Sessions Judges.
A notification for transfer of cases was
accordingly issued and this was struck down by the Delhi High Court by,
inter alia, relying on the law laid down in Antulay.
As already noted
above, the law laid down in
Antulay has limited application and is not relevant to cases such as the
one we are dealing with.
This was clearly explained in Ranbir Yadav but the
Delhi High Court ignored the observations of this Court without much ado by
holding:
“In that case the Court transferred the case from the Court of one
Magistrate to the Court of another Magistrate for the reason that there was
shortage of accommodation in the first Court.
That is not the case in hand.
It was not a case where the jurisdiction was transferred from the Court of
Magistrate to the Court of Sessions.”
The Delhi High Court also proceeded
on an erroneous basis that the exercise of plenary administrative power
available to the High Court to transfer cases meant the bypassing or
circumventing of statutory provisions empowering Magistrates to try
cases under Section 138 of the Negotiable Instruments Act, 1881 and
conferring that jurisdiction on Additional Sessions Judges.
The High Court
did not correctly appreciate the power available to a High Court under
Article 227 of the Constitution.
31. The error in A.S. Impex was correctly understood by the Division
Bench of the Delhi High Court in Mahender Singh v. High Court of Delhi,
(2009) 151 Comp Cas 485 (Delhi) and in N.G. Sheth v. C.B.I., 151 (2008) DLT
89.
The Division Bench in both cases took a view different from that in
A.S. Impex.
However, both decisions having been rendered by
Division Benches, A.S. Impex, could not be overruled.
Therefore, I complete the
formality and overrule A.S. Impex since it does not lay down the correct
law in this regard.
32. For the reasons above mentioned, the Special Leave Petitions are
dismissed.
……………………..J
( Madan B. Lokur )
New Delhi;
September 26, 2013
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33
