TaxTMI 
TaxTMI 
2001 (7) TMI 1188
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....t Act'). Under this Special Court Act one Special Court came to be established. In the beginning there was only one judge. All civil and criminal matters, even if they arose from the same transaction were before the same judge. The same judge had, in fact, tried both civil and criminal matters even though they arose out of the same transaction or the same set of facts. It is only because the work load was found to be very heavy that the Special Court Act was amended in 1997, to enable appointment of more judges. It is only thereafter that there have been two judges. 4. In May, 1995, Canbank Financial Services Limited (Canfina) filed a Civil Petition No. 74 of 1995 before the Special Court, claiming criminal conspiracy to cause unlawful loss to them by sale and purchase of the same securities within a period of two days at differing rates. Canfina claimed damages arising out of the tort of conspiracy in a sum of Rs. 38,01,13,561. 5. In March, 1998, the CBI filed Criminal Case No. 2 of 1998 before the Special Court alleging criminal conspiracy amongst the respondents to cause unlawful loss to Canfina by sale and purchase of the same securities within a period of two days at dif....
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....n. Hence, this special leave petition against the orders of the Bombay High Court dated 16-4-2001 and 19-4-2001. 12. In this appeal we have not permitted the parties to argue on the merits. We have confined the parties to the question whether the High Court would have power to transfer the case from one judge of the Special Court to another. 13. Mr. Chidambaram submits that the High Court has such a power under section 407 of the Criminal Procedure Code. Section 407 reads as follows : "Power of High Court to transfer cases and appeals.-(1) Whenever it is made to appear to the High Court- (a )that a fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto, or (b)that some question of law of unusual difficulty is likely to arise, or (c )that an order under this section is required by any provision of this court, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice. it may order- (i )that any offence be inquired into or tied by any court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (ii....
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....hen the High Court orders under sub-section (1) that a case be transferred from any court for trial before itself, it shall observe in such trial the same procedure which that court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under section 197." It is thus to be seen that the High Court could only exercise power under section 407 provided the Special Court was subordinate to it. 14. Mr. Chidambaram submitted that the Special Court was a criminal court as envisaged by the Criminal Procedure Code and that the provisions of the Criminal Procedure Code applied to it. In support of his contention Mr. Chidambaram referred to section 4 of the Criminal Procedure Code. Under this section all offences under the Indian Penal Code could be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code. He also referred to section 6 of the Criminal Procedure Code, which provides that besides the High Courts and courts constituted under any law, there would be in every State: (a) Courts of Session; (b) Judicial Magistrates of the first class and in any metr....
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....secution before the Special Court shall be deemed to be a public Prosecutor. (3) The Special Court may pass upon any person convicted by it any sentence authorised by law for the punishment of the offence of which such person is convicted. (4) While dealing with any other matter brought before it, the Special Court may adopt such procedure as it may deem fit consistent with the principles of natural justice." 16. Mr. Chidambaram, submitted that section 6 of the Special Court Act provides that the Special Court shall take cognizance of or try such cases as are instituted before it or transferred to it hereinafter. He points out that the section provides that all prosecutions in respect of offences referred to in sub-section (2) of section 3 of the Act are to be instituted in the Special Court and that if a prosecution was pending in any other court, it stood transferred to the Special Court. 17. Mr. Chidambaram, submitted that section 9 clinches the matter in his favour. He submitted that section 9 specifically provides that the provisions of the Criminal Procedure Code apply to the proceedings before the Special Court and that for the purposes of the proceedings the Spe....
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....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 be transferred from one Special Court to another Special Court. (2) The Supreme Court may act under this section only on the application of the Attorney-General of India or of a party 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 a 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." 20. Mr. Chidambaram submitted that even though most of the other provisions of the Special Court Act are identical and have been copied from the 1979 Act, a provision similar to section 10 has not been incorporated in the Special Court Act. He submitted that if....
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.... Act. It may only be mentioned that section 17 of the Administrative Tribunals Act empowered the Administrative Tribunal to punish for contempt of itself and vested in it the same jurisdiction and powers as a High Court had. The question before this court was whether an order passed under section 17 of the Administrative Tribunals Act was subject to judicial scrutiny by the High Court under articles 226 and 227 of the Constitution of India. This court, inter alia, held as follows : "...The Administrative Tribunals as established under article 323A and the Administrative Tribunals Act, 1985, are an alternative institutional mechanism or authority, designed to be not less effective than the High Court, consistently with the amended constitutional scheme but at the same time not to negate judicial review jurisdiction of constitutional courts. Transfer of jurisdiction in specified matters from the High Court to the Administrative Tribunal equates the Tribunal with the High Court in so far as the exercise of judicial authority over the specified matters is concerned. That, however, does not assign the Administrative Tribunals a status equivalent to that of the High Court nor does tha....
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....l Court.-Where the Special Court consists of two or more judges, the Chief Justice of the High Court within the local limits of whose jurisdiction the Special Court is situated may, from time to time, by general or special order, make provisions as to the distribution of cases amongst the judges and specify the matters which may be dealt with by each of such judges." Mr. Malhotra submitted that a conjoint reading of the various provisions of the Special Court Act makes it very clear that the Special Court was not a court subordinate to the High Court. He submitted that under section 407 mere judicial superintendence was not sufficient. He submitted that what was required was both judicial and administrative subordination. He submitted that the Special Court could only be subordinate to the High Court if the High Court had both judicial as well as administrative control of the Special Court. He submitted that it was clear that the High Court had no administrative control over the Special Court. Mr. Malhotra also relied upon section 11A and submitted that section 11A showed that the Special Court was in fact equivalent to the High Court. He further pointed out that section 10 o....
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....al. Thus the single judge is holding that there could be no court in the State over which the High Court had no control. Such a view could only be taken if the court was proceeding on the footing that the Special Courts were not subordinate to or under the control of the High Court. Of course this view is not accepted by the majority, who hold that the provisions are constitutionally valid. But in this behalf also the following observations of Justice Chandrachud, made on behalf of majority, are very relevant : "It is true that the Special Courts created by the Bill will not have the constitutional status which High Courts have because such courts are not High Courts as envisaged by the Constitution. Indeed, there can but be one High Court only for each State, though two or more States or two or more States and a union territory can have a common High Court. It is also true to say that the Special Courts are not District Courts within the meaning of article 235, with the result that the control over them will not be vested in any High Court. But we do not accept that by reason of these considerations, the creation of Special Courts is calculated to damage or destroy the constitu....
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....of the High Courts within whose territorial jurisdiction they fall, as our constitutional scheme does not require that all adjudicatory bodies which fall within the territorial jurisdiction of any High Court should be subject to its supervisory jurisdiction. Obviously, the supervisory jurisdiction referred to by the Constitution Bench in paragraph 96 of the judgment is the supervision of the administrative functioning of the Tribunals as is spelt out by discussion made in paras 96 and 97 of the judgment. Jurisdiction should not be confused with status and subordination.-Parliament was motivated to create new adjudicatory fora to provide new, cheap and fast-track adjudicatory systems and permitting them to function by tearing off the conventional shackles of the strict rule of pleadings, strict rule of evidence, tardy trials, three/four-tier appeals, endless revisions and reviews-creating hurdles in the fast flow of the stream of justice...." (emphasis^1 supplied) (p. 531) Thus, from this judgment it is clear that only judicial superintendence is envisaged under articles 226 and 227. There is no administrative control or superintendence. The High Court does not have administra....