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2013 (10) TMI 904
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.... 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 It is claimed that fake supplies were shown as made by the suppliers, and the money withdrawn towards such fake allotments was misappropriated by the accused persons. 3.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 asse....
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....chi. 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 17 th 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 notificatio....
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....ion 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 nonbailable 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 wa....
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.... 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....
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....ognizable 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 Pr....
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....ing 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 noncognizable. 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 cla....
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....nsfer 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 cas....
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.... 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 subsection (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....
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.... 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 ....
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....eading 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 ....
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....missible 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 prese....
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....f 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 Instrumen....