Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
A.R. Antulay Vs. R.S. Nayak and Anr.
AIR 1988 SC 1531, (1988) 2 SCC 602, [1988] Supp1 SCR 1
Hon’ble Judges/Coram: Sabyasachi Mukherjee, JJ., B.C. Ray, G.L. Oza, M.N. Venkatachaliah, Ranganath Misra, S. Natarajan, S. Ranganathan
Decided On: 29.04.1988
FACTS: –
The appellant became the Chief Minister of Maharashtra on or about 9th of June, 1980. On 1st of September, 1981, a person having political affiliation applied to the Governor of the State under Section 197 of the Cr.P.C., 1973 and Section 6 of the Prevention of Corruption Act, 1947 for sanction to prosecute the appellant. Thereafter, he filed a complaint before the Additional Metropolitan Magistrate, Bombay against the appellant and other known and unknown persons for alleged offence under Sections 161 and 165 of the Indian Penal Code and Section 5 of the Prevention of Corruption Act as also under Sections 384 and 420 read with Sections 109 and 120B of the Indian Penal Code. The learned Magistrate refused to take cognizance of the offences under the Act without the sanction for prosecution. Thereafter a revision was filed in the High Court of Bombay. The appellant thereafter on 12th of January, 1982 resigned from the position of Chief Minister in deference to the judgment of the Bombay High Court. On 28th of July, 1982, the Governor of Maharashtra granted sanction under Section 197 of the Code and Section 6 of the Act in respect of five items relating to three subjects only and refused sanction in respect of all other items. After that, a fresh complaint was lodged by that person before the learned Special Judge bringing in many more allegations including those for which sanction was refused by the Governor. And pressed that there is no need to take sanction as Appellant has ceased to be Chief Minister.
The Special Judge, Shri P.S. Bhutta issued process to the appellant without relying on the sanction order dated 28th of July, 1982. On 20th of October, 1982, Shri P.S. Bhutta overruled the appellant’s objection to his jurisdiction to take cognizance of the complaint and to issue process in the absence of a notification under Section 7(2) of the Criminal Law Amendment Act, 1952 specifying which of the three Special Judges of the area should try such cases.
The State Government on 15th of January, 1983 notified the appointment of Shri R.B. Sule as the Special Judge to try the offences specified under Section 6(1) of the 1952 Act. On or about 25th of July 1983, it appears that Shri R.B. Sule, Special Judge discharged the appellant holding that a member of the Legislative Assembly is a public servant and there was no valid sanction for prosecuting the appellant.
On 16th of February, 1984, in an appeal filed directly under Article 136, a Constitution Bench of the Supreme Court held that a member of the Legislative Assembly is not a public servant and set aside the order of Special Judge Sule. Instead of remanding the case to the Special Judge for disposal in accordance with law, SC suo motu withdrew the Special Cases pending in the Court of Special Judge, Shri R.B. Sule and transferred the same to the Bombay High Court with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court for holding the trial from day to day. These directions were given without any pleadings, without any arguments, without any such prayer from either side and without giving any opportunity to the appellant to make his submissions before issuing the same.
ISSUE: –
Whether the directions given by this Court on 16th of February, 1984 are in breach of Section 7(1) of the Act of 1952 and in violation of Articles 14 and 21 of the Constitution?
JUDGMENT: –
Section 406 of the Code deals with transfer of criminal cases and provides power to Supreme Court to transfer cases and appeals whenever it is made to appear that an order under this section is expedient for the ends of justice. The law provides that this Court 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. Equally Section 407 deals with the power of High Court to transfer cases and appeals. Under Section 6 of the 1952 Act, the State Government is authorised to appoint as many Special Judges as may be necessary for such area or areas for specified offences including offences under the Act. Section 7 of the 1952 Act deals with cases triable by Special Judges. The question, therefore, is whether this Court under Section 406 of the Code could have transferred a case which was triable only by a Special Judge to be tried by the High Court or even if an application had been made to this Court under Section 406 of the Code to transfer the case triable by a Special Judge to another Special Judge could that be transferred to a High Court, for trial by it.
Section 7(1) of the 1952 Act creates a condition which is sine qua non for the trial of offenders under Section 6(1) of-that Act. In this connection, the offences specified under Section 6(1) of the 1952 Act are those punishable under Sections 161, 162, 163, 164 and 165A of the Indian Penal Code and Section 5 of the 1947 Act. Therefore, the order of this Court transferring the cases to the High Court on 16th February, 1984, was not authorised by law. The Supreme Court, by its directions could not confer jurisdiction on the High Court of Bombay to try any case which it did not possess such jurisdiction under the scheme of the 1952 Act. The order was quite clearly per incuriam. The Supreme Court, to be plain, did not have jurisdiction to transfer the case to itself. That will be evident from an analysis of the different provisions of the Code as well as the 1952 Act. The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law and no Court, whether superior or inferior or both combined can enlarge the jurisdiction of a Court or divest a person of his rights of revision and appeal.
The appellant has been treated differently from other offenders; accused of a similar offence in view of the provisions of the Act of 1952 and the High Court was not a Court competent to try the offence. The appellant has also a right not to be singled out for special treatment by a Special Court created for him alone. This right is implicit in the right to equality.
Appellant has a further right under Article 21 of the Constitution a right to trial by a Special Judge under Section 7(1) of the 1952 Act which is the procedure established by law made by the Parliament, and a further right to move the High Court by way of revision or first appeal under Section 9 of the said Act. He has also a right not to suffer any order passed behind his back by a Court in violation of the basic principles of natural justice.
Article 134(1)(b) does not recognise in every High Court power to withdraw for trial cases from any Court subordinate to its authority. At least this Article cannot be construed to mean where power to withdraw is restricted, it can be widened by virtue of Article 134(1)(b) of the Constitution. Section 374 of the Code undoubtedly gives a right of appeal. Where by a specific clause of a specific statute the power is given for trial by the Special Judge only and transfer can be from one such Judge to another Special Judge, there is no warrant to suggest that the High Court has power to transfer such a case from a Judge under Section 6 of the Act of 1952 to itself. It is not a case of exclusion of the superior Courts.
HELD: –
In view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, the directions given were legally wrong and violative of legal provisions.
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