2013 (10) TMI 904 - SC - FEMA

High Court Upholds Transfer of Cases to Special Judge, Emphasizes Discretionary Revision Power

Kamlesh Kumar & Others Versus The State of Jharkhand & Others

Kamlesh Kumar & Others Versus The State of Jharkhand & Others - 2014 AIR 160, 2013 (14) SCR 263, 2013 (15) SCC 460, 2013 (13) JT 155, 2013 (12) SCALE 216 Issues Involved:1. Validity of the transfer of prosecution from the Magistrate's Court to the Special Judge.2. Jurisdiction of the Special Judge to try offences under FERA.3. Right of appeal and potential prejudice to the petitioners.4. Procedural requirements for transfer under Section 407 of Cr.P.C.5. Right of revision and its implications.Issue-Wise Detailed Analysis:1. Validity of the Transfer of Prosecution:The petitioners challenged the transfer of their cases from the Magistrate's Court to the Special Judge, arguing that the transfer was unlawful as the Special Judge lacked jurisdiction to try offences under FERA. The petitioners contended that this transfer was made without jurisdiction and was therefore null and void.2. Jurisdiction of the Special Judge:The petitioners argued that the punishment for offences under Section 56 of FERA did not exceed seven years, making the offences triable by a Magistrate of the first class as per the second entry of Part-II of the First Schedule to Cr.P.C. The respondents countered this by pointing out that the offences were non-cognizable under Section 56 of FERA, and thus the Magistrate's Court did not have exclusive jurisdiction. The Supreme Court noted that Section 62 of FERA made the offences non-cognizable and that Section 61(1) of FERA stated that it was 'lawful' for the Magistrate to pass the necessary sentence, but did not confer exclusive jurisdiction.3. Right of Appeal and Potential Prejudice:The petitioners claimed that transferring their cases to the Special Judge would deprive them of their right to appeal to the Sessions Court, thereby reducing their appellate rights. The Supreme Court clarified that while the forum for appeal changed, the right to appeal itself was not taken away. The petitioners could still appeal to the High Court. The Court emphasized that a litigant does not have a right to insist on a particular forum for appeal or procedure, as established in precedents such as Rao Shiv Bahadur Singh v. State of Vindhya Pradesh and Union of India v. Sukumar Pyne.4. Procedural Requirements for Transfer:The petitioners contended that the transfer was not in accordance with the procedure laid down under Section 407 of Cr.P.C. The Supreme Court held that the High Court has dual powers: judicial power under Section 407 of Cr.P.C. and administrative power under Article 227 of the Constitution. The High Court exercised its administrative power in this case, which was valid and did not prejudice the petitioners.5. Right of Revision:The petitioners argued that their right to revision was taken away by the transfer. The Supreme Court referred to the Constitution Bench judgment in Pranab Kumar Mitra v. The State of West Bengal, which held that the power of revision is discretionary and does not create a right in the litigant. The Court reiterated that the transfer of the case did not take away any procedural facility available to the petitioners but only changed the forum.Conclusion:The Supreme Court dismissed the Special Leave Petitions, upholding the transfer of the cases to the Special Judge. It ruled that the High Court had the administrative power to transfer the cases and that this did not prejudice the petitioners' rights. The Court also clarified that the petitioners' right to appeal was preserved, though the forum changed, and that the power of revision is a discretionary power of the superior court, not a right of the litigant.