urt was not warranted in law being contrary to the special provisions of the 1952 Act was also not in conformity with the principles of natural justice and that unless the direction can be justified with reference to section 407 of the Cr
PC the petitioner s fundamental rights under Articles 14 and 21 of the Constitution can be said to have been infringed by reason of this direction
142C However this is not one of those cases in which it is considered appropriate to recall the earlier direction and order a re trial of the appellant de novo before a Special Judge
169D  CRIMINAL APPELLATE JURISDICTION Criminal Appeal No 468 of 1986
From the Judgement and order dated 24786 of the Bombay High Court in Special Cash No 2482
PP Rao RD Ovlekar
MN Dwevedi Not in WP
No 542 36 Sulman Khurshid NV Pradhan DR Gadgil RS Desai MN Shroff KV Sreekumar and PS Pradhan for the Petitioner Ram Jethmalani Miss Rani Jethmalani and Ashok Sharma for the Respondents
AM Khanwilkar and ASBhasme for the Respondents State
The majority Judgment of Sabyasachi Mukharji GL Oza and section Natarajan JJ
was delivered by Mukharji J Ranganath Misra and BC Ray JJ
gave separate concurring opinions
GL Oza J also gave a separate opinion
MN Venkatachaliah J delivered a dissenting opinion section Ranganathan j was a partly concurring and partly dissenting opinion SABYASACHI MUKHARJI J
The main question involved in this appeal is whether the directions given by this Court on 16th February 1984
as reported in RS Nayak vs AR Antulay  at 557 were legally proper
The next question is whether the action and the trial proceedings pursuant to those directions are legal and valid
Lastly the third consequential question is can those directions be recalled or set aside or annulled in those proceedings in the manner sought for by the appellant
In order to answer these questions certain facts have to be borne in mind
The appellant became the Chief Minister of Maharashtra on or about 9th of June 1980
On 1st of September 1981 respondent No 1 who is a member of the Bharatiya Janta Party applied to the Governor of the State under section 197 of the Criminal Procedure Code 1973 hereinafter referred to as the Code and section 6 of the Prevention of Corruption Act 1947 hereinafter referred to as the Act for sanction to prosecute the appellant
On 11th of September 1981 respondent No 1 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 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 criminal revision application being CRA No 1742 of 1981 was filed in the High Court of Bombay by respondent No 1 37 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 in a writ petition filed against him
In CRA No 1742 of 1981 filed by respondent No 1 the Division Bench of the High Court held that sanction was necessary for the prosecution of the appellant and the High Court rejected the request of respondent No 1 to transfer the case from the Court of the Additional Chief Metropolitan Magistrate to itself
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
Respondent No 1 on 9th of August 1982 filed a fresh complaint against the appellant before the learned Special Judge bringing in many more allegations including those for which sanction was refused by the Governor
It was registered as a Special Case No 24 of 1982
It was submitted by respondent No 1 that there was no necessity of any sanction since the appellant had ceased to be a public servant after his resignation as Chief Minister
The Special Judge Shri PS Bhutta issued process to the appellant without relying on the sanction order dated 28th of July 1982
On 20th of October 1982 Shri PS Bhutta overruled the appellants objection to his jurisdiction to take cognizance of the complaint and to issue process in the absence of a notification under section 72 of the Criminal Law Amendment Act 1952 hereinafter referred to as 1952 Act 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 RB Sule as the Special Judge to try the offences specified under section 61 of the 1952 Act
On or about 25th of July 1983 it appears that Shri RB 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 by respondent No 1 directly under Article 136 a Constitution Bench of this 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 38 case to the Special Judge for disposal in accordance with law this Court suo motu withdrew the Special Cases No 2482 and 383 arising out of a complaint filed by one PB Samant pending in the Court of Special Judge Greater Bombay Shri RB 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 according to the appellant 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
It was submitted that the appellant s right to be tried by a competent court according to the procedure established by law enacted by Parliament and his rights of appeal and revision to the High Court under section 9 of the 1952 Act had been taken away
The directions of this Court mentioned hereinbefore are contained in the decision of this Court in RS Nayak vs AR Antulay  at 557
There the Court was mainly concerned with whether sanction to prosecute was necessary
It was held that no such sanction was necessary in the facts and circumstances of the case
This Court further gave the following directions The accused was the Chief Minister of a premier State the State of Maharashtra
By a prosecution launched as early as on September 11 1981 his character and integrity came under a cloud
Nearly two and a half years have rolled by and the case has not moved an inch further
An expeditious trial is primarily in the interest of the accused and a mandate of Article 21
Expeditious disposal of a criminal case is in the interest of both the prosecution and the accused
Therefore Special Case No 24 of 1982 and Special Case No 383 pending in the Court of Special judge Greater Bombay Shri RB Sule are withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court
On being so assigned the learned Judge may proceed to expeditiously dispose of the cases preferably by holding the trial from day to day
 The appellant as mentioned hereinbefore had appeared before the Special Judge and objected to the jurisdiction of the learned Judge on the ground that the case had not been properly allocated to him by the State Government
The Special Judge Bhutta after hearing 39 the parties had decided the case was validly filed before him and he had properly taken cognizance
He based his order on the construction of the notification of allocation which was in force at that time
Against the order of the learned Special Judge rejecting the appellant s contention the appellant filed a revision application in the High Court of Bombay
During the pendency of the said revision application the Government of Maharashtra issued a notification appointed Special Judge RB Sule as the Judge of the special case
it is the contention of the respondents before us that the appellant thereafter did not raise any further objection in the High Court against cognizance being taken by Shri Bhutta
It is important to take note of this contention because one of the points urged by Shri Rao on behalf of the appellant was that not only we should set aside the trial before the High Court as being without jurisdiction but we should direct that no further trial should take place before the Special Judge because the appellant has suffered a lot of which we shall mention later but also because cognizance of the offences had not been taken properly
In order to meet the submission that cognizance of the offences had not been taken properly it was urged by Shri Jethmalani that after the Government Notification appointing Judge Sule as the Special Judge the objection that cognizance of the offences could not be taken by Shri Bhutta was not agitated any further
The other objections that the appellant raised against the order passed by Judge Bhutta were dismissed by the High Court of Bombay
Against the order of the Bombay High Court the appellant filed a petition under Article 136 of the constitution
The appeal after grant of leave was dismissed by a judgment delivered on 16th February 1984 by this Court in AR Antulay vs Ramdas Sriniwas Nayak and another  There at page 954 of the report this Court categorically observed that a private complaint filed by the complaint was clearly maintainable and that the cognizance was properly taken
This was the point at issue in that appeal
This was decided against the appellant
On this aspect therefore the other point is open to the appellant
We are of the opinion that this observation of this Court cannot by any stretch of imagination be considered to be without jurisdiction
Therefore this decision of this Court precludes any scope for argument about the validity of the cognizance taken by Special Judge Bhutta
Furthermore the case had proceeded further before the Special Judge Shri Sule and the learned Judge passed an order of discharge on 25th July 1983
This order was set aside by the Constitution Bench of this Court on 16th February 1984 in the connected judgment vide  The order of taking cognizance had therefore become final and cannot be reagitated
Moreover section 460e of the Code expressly provides that if any Magistrate not empowered by law 40 to take cognizance of an offence on a complaint under section 190 of the Code erroneously in good faith does so his proceedings shall not be set aside merely on the ground that he was not so empowered
Pursuant to the directions of this Court dated 16th February 1984 on 1st of March 1984 the Chief Justice of the Bombay High Court assigned the cases to SN Khatri J
The appellant it is contended before us appeared before Khatri J and had raised an objection that the case could be tried by a Special Judge only appointed by the Government under the 1952 Act
Khatri J On 13th of March 1984 refused to entertain the appellant s objection to jurisdiction holding that he was bound by the order of this Court
There was another order passed on 16th of March 1984 whereby Khatri J dealt with the other contentions raised as to his jurisdiction and rejected the objections of the appellant
Being aggrieved the appellant came up before this Court by filing special leave petitions as well as writ petition
This Court on 17th April 1984 in Abdul Rehman Antulay vs Union of India and others etc
  at 483 held that the learned Judge was perfectly justified and indeed it was the duty of the learned Judge to follow the decision of this Court which was binding on him
This Court in dismissing the writ petition observed inter alia as follows In my view the writ petition challenging the validity of the order and judgment passed by this Court as nullity or otherwise incorrect cannot be entertained
I wish to make it clear that the dismissal of this writ petition will not pre judice the right of the petitioner to approach the Court with an appropriate review petition or to file any other application which he may be entitled in law to file
 DN Mehta J to whom the cases were transferred from Khatri J framed charges under 21 heads and declined to frame charges under 22 other heads proposed by respondent No 1
This Court allowed the appeal by special leave preferred by respondent No 1 except in regard to three draft charges under section 384 IPC extortion and directed the Court below to frame charges with regard to all other offences alleged
This Court requested the Chief Justice of the Bombay High Court to nominate another Judge in place of DN Mehta J to take up the trial and proceed expeditiously to dispose of the case finally
See in this connection R section Nayak vs A R Antulay and another  41 PS Shah J to whom the cases were referred to from DN Mehta J
On 24th of July 1986 proceeded to frame as many as 79 A charges against the appellant and decided not to proceed against the other named co conspirators
This is the order impugned before us
Being aggrieved by the aforesaid order the appellant filed the present Special leave Petition Crl No 2519 of 1986 questioning the jurisdiction to try the case in violation of the appellant s fundamental rights conferred by Articles 14 and 21 and the provisions of the Act of 1952
The appellant also filed Special leave Petition Crl No 2518 of 1986 against the judgment and order dated 21st of August 1986 of PS Shah J holding that none of the 79 charges framed against the accused required sanction under section 1971 of the Code
The appellant also filed a Writ Petition No 542 of 1986 challenging a portion of section 1971 of Code as ultra vires Articles 14 and 21 of the Constitution
This Court granted leave in Special Leave Petition Crl  No 2519 of 1986 after hearing respondent No 1 and stayed further proceedings in the High Court
This Court issued notice in Special Leave Petition Crl No 2518 and Writ Petition Crl No 542 of 1986 and directed these to be tagged on with the appeal arising out of Special Leave Petition Crl  No 2519 of 1986
On 11th of October 1986 the appellant filed a Criminal Miscellaneous Petition for permission to urge certain additional grounds in support of the plea that the origination of the proceedings before the Court of Shri PS Bhutta Special Judge and the process issued to the appellant were illegal and void ab initio
This Court on 29th October 1986 dismissed the application for revocation of special leave petition filed by respondent No 1 and referred the appeal to a Bench of 7 Judges of this Court and indicated the points in the note appended to the order for consideration of this Bench
So far as SLP Crl No 251886 against the judgment and order dated 21st August 1986 of PS Shah J Of the Bombay High Court about the absence of sanction under section 197 of the Code is concerned we have by an order dated 3rd February 1988 delinked that special leave petition inasmuch as the same involved confederation of an independent question and directed that the special leave petition should be heard by any appropriate Bench after disposal of this appeal Similarly Writ Petition Crl No 542 of 1986 challenging a H 42 portion of section 1971 of the Criminal Procedure Code as ultra vires Articles 14 and 21 of the Constitution had also to be delinked by our order dated 3rd February 1988 to be heard along with special leave petition no 2518 of 1986
This judgment therefore does not cover these two matters
In this appeal two questions arise namely 1 whether the directions given by this Court on 16th of February 1984 in RS Nayak vs AR Antulay  withdrawing the Special Case No 2482 and Special Case No 383 arising out of the complaint filed by one shri PB Samant pending in the Court of Special Judge Greater Bombay Shri RB Sule and transferring the same to the High Court of Bombay with a request to the Chief Justice to assign these two cases to a sitting Judge of the High Court in breach of section 71 of the Act of 1952 which mandates that offences as in this case shall be tried by a Special Judge only thereby denying at least one right of appeal to the appellant was violative of Articles 14 and 21 of the Constitution and whether such directions were at all valid or legal and 2 if such directions were not at all valid or legal in view
Of the order dated 17th
Of April 1984 referred to hereinbefore is this appeal sustainable or the grounds therein justiciable in these proceedings
In other words are 711 the said directions in a proceedings inter parties binding even if bad in law or violative of Articles 14 and 21 of the Constitution and as such are immune from correction by this Court even though they cause prejudice and do injury These are the basic questions which this Court must answer in this appeal
The contention that has been canvassed before us was that save as provided in sub section 1 of section 9 of the Code the provisions thereof corresponding to section 91 of the Criminal Procedure Code 1898 shall so far as they are not inconsistent with the Act apply to the proceedings before the Special Judge and for purposes of the said provisions the Court of the Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting the prosecution before a Special Judge shall be deemed to be a public prosecutor
It was submitted before us that it was a private complaint and the prosecutor was not the public prosecutor
This was another infirmity which this trial suffered it was pointed out
In the background of the main issues involved in this appeal we do not propose to deal with this subsidiary point which is of not any significance
The only question with which we are concerned in this appeal is 43 whether the case which is triable under the 1952 Act only by a Special Judge appointed under section 6 of the said Act could be transferred to the High Court for trial by itself or by this Court to the High Court for trial by it
Section 406 of the Code deals with transfer of criminal cases and provides power to this Court to transfer cases and appeals whenever it is made to appear to this Court 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
It was contended by Shri Rao that the jurisdiction to entertain and try cases is conferred either by the Constitution or by the laws made by Parliament
He referred us to the powers of this Court under Articles 32 131 137 138 140 142 and 1451 of the Constitution
He also referred to Entry 77 of List I of the Constitution which deals with the constitution of the courts
He further submitted that the appellant has a right to be tried in accordance with law
and no procedure which will deny the equal protection of law can be invented and any order passed by this Court which will deny equal protection of laws would be an order which is void by virtue of Article 132 of the Constitution
He referred us to the previous order of this Court directing the transfer of cases to the High Court and submitted that it was a nullity because of the consequences of the wrong directions of this Court
The enormity of the consequences warranted this Court s order being treated as a nullity
The directions denied the appellant the remedy by way of appeal as of right
Such erroneous or mistaken directions should be corrected at the earliest opportunity Shri Rao submitted
Shri Rao also submitted that the directions given by the Court were without jurisdiction and as such void
There was no jurisdiction according to Shri Rao or power to transfer a case from the Court of 44 the Special Judge to any High Court
Section 406 Gf the Code only permitted transfer of cases from one High Court to another High Court or from a Criminal Court subordinate to one High Court to a Criminal Court subordinate to another High Court
It is apparent that the impugned directions could not have been given under section 406 of the Code as the Court has no such power to order the transfer from the Court of the Special Judge to the High Court of Bombay
Section 71 of the 1952 Act creates a condition which is sine qua non for the trial of offences under section 61 of the said Act
The condition is that notwithstanding anything contained in the Code of Criminal Procedure or any other law the said offences shall be triable by Special Judges only
Emphasis supplied
Indeed conferment of the exclusive jurisdiction of the Special Judge is recognised by the judgment delivered by this Court in AR Antulay vs Ramdas Sriniwas Nayak and another  where this Court had adverted to section 71 of the 1952 Act and at page 931 observed that section 7 of the 1952 Act conferred exclusive jurisdiction on the Special Judge appointed under section 6 to try cases set out in section 61a and 61b of the said Act
The Court emphasised that the Special Judge had exclusive jurisdiction to try offences enumerated in section 61a and b
In spite of this while giving directions in the other matter that is RS Nayak vs AR Antulay  at page 557 this Court directed transfer to the High Court of Bombay the cases pending before the Special Judge
It is true that section 71 and Section 6 of the 1952 Act were referred to while dealing with the other matters but while dealing with the matter of directions and giving the impugned directions it does not appear that the Court kept in mind the exclusiveness of the jurisdiction of the Special Court to try the offences enumerated in section 6
Shri Rao made a point that the directions of the Court were given per incuriam that is to say without awareness of or advertence to the exclusive nature of the jurisdiction of the Special Court and without reference to the possibility of the violation of the fundamental rights in a case of this nature as observed by a seven Judges Bench decision in The State of West Bengal vs AnwarAli Sarkar  Shri Ram Jethmalani on behalf of the respondents submitted that the judgment of the Constitution Bench of this Court was delivered on 16th of February 1984 and counsel for both sides were present and it was neither objected to nor stated by the appellant that he wanted to be heard in regard to the transfer of the trial forum
He 45 submitted that the order of discharge was not only challenged by a special leave petition before this Court but also that a revision application before the High Court being Criminal Revision Application No 35483 was filed but the Criminal Revision Application by an order of this Court was withdrawn and heard along with the special leave petition
That application contained a prayer to the effect that the order of discharge be set aside and the case be transferred to the High Court for trial
Therefore it was submitted that the order of transfer was manifestly just
There was no review against this order
It was submitted that the order of transfer to a superior court cannot in law or in fact ever cause any harm or prejudice to any accused
It is an order made for the benefit of the accused and in the interests of justice
Reliance was placed on Romesh Chandra Arora vs The State at 927 and 934
It was further submitted by Shri Jethmalani that a decision which has become final cannot be challenged
Therefore the present proceedings are an abuse of the process of the Court according to him
It was further submitted that all the attributes of a trial court were present in a Court of Appeal an appeal being a continuation of trial before competent Court of Appeal and therefore all the qualifications of the trial court were there
The High Court is authorised to hear an appeal from the judgment of the Special Judge under the Act of 1952
It was submitted that a Special Judge except in so far as a specific provision to the contrary is made is governed by all the provisions of the Code and he is a Court subordinate to the High Court
See AR Antulay vs RS Nayak and another 1984 2 SCR 914 at 943 and 944
It was submitted that power under section 526 of the old Code corresponding to section 407 of the new Code can be exercised qua a Special Judge
This power according to Shri Jethmalani is exerciseable by the High Court in respect of any case under Section 4071iv irrespective of the Court in which it is pending
This part of the section is not repealed wholly or pro tanto according to the learned counsel by anything in the 1952 Act
The Constitution Bench it was submitted consciously exercised this power
It decided that the High Court had the power to transfer a case to itself even from a Special Judge
That decision is binding at least in this case and cannot be reopened it was urged
In this case what was actually decided cannot be undone we were told repeatedly
It will produce an intolerable state of affairs
This Court sought to recognise the distinction between finality of judicial orders qua the parties and the reviewability for application to other cases
Between the parties even a wrong decision can operate as res judicata
The doctrine of res judicata is applicable even to criminal 46 trials it was urged
Reliance was placed on Bhagat Ram vs State of Rajasthan 1972 2 SCC466
A judgment of a High Court is binding in all subsequent proceedings in the same case more so a judgment which was unsuccessfully challenged before this Court
It is obvious that if a case could be transferred under section 406 of the Code from a Special Judge it could only be transferred to another Special Judge or a court of superior jurisdiction but subordinate to the High Court
No such court exists
Therefore under this section the power of transfer can only be from one Special Judge to another Special Judge
Under section 407 however corresponding to section 526 of the old Code it was submitted the High Court has power to transfer any case to itself for being tried by it it was submitted
It appears to us that in Gurcharan Das Chadha vs State of Rajasthan  an identical question arose
The petitioner in that case was a member of an All India Service serving in the State of Rajasthan
The State Government ordered his trial before the Special Judge of Bharatpur for offences under section 120B161 of the Indian Penal Code and under sections 51a and d and 52 of the Act
He moved this Court under section 527 of the old Code praying for transfer of his case to another State on various grounds
Section 71 of the Act required the offences involved in that case to be tried by a Special Judge only and section 72 of the Act required the offences to be tried by a Special Judge for the area within which these were committed which condition could never be satisfied if there was a transfer
This Court held that the condition in sub section 1 of section 7 of the Act that the case must be tried by a Special Judge is a sine qua non for the trial of offences under section 6
This condition can be satisfied by transferring the case from one Special Judge to another Special Judge
Sub section 2 of section 7 merely distributes it was noted work between Special Judges appointed in a State with reference to territory
This provision is at par with the section of the Code which confers territorial jurisdiction on Sessions Judges and magistrates
An order of transfer by the very nature of things must sometimes result in taking the case out of the territory
The third sub section of section 8 of the Act preserves the application of any provision of the Code if it is not inconsistent with the Act save as provided by the first two sub sections of that Section
It was held by this Court that section 527 of the old Code hence remains applicable if it is not inconsistent with section 72 of the Act
It was held that there was no inconsistency between section 527 of the Code and 47 section 72 of the Act as the territorial jurisdiction created by the latter operates in a different sphere and under different circumstances
Inconsistency can only be found if two provisions of law apply in identical circumstances and create contradictions
Such a situation does not arise when either this Court or the High Court exercises the power of transfer
Therefore this Court in exercise of its jurisdiction and power under section 521 of the Code can transfer a case from a Special Judge subordinate to one High Court to another Special Judge subordinate to another High Court
It has to be emphasised that that decision was confined to the power under section 527 of the previous Code and to transfer from one Special to another Special Judge though of another State
It was urged by Shri Jethmalani that Chadha s case supra being one of transfer from one Special Judge to another the judgment is not an authority for the proposition that it cannot be transferred to a court other than that of a Special Judge or to the High Court
But whatever be the position this is no longer open at this juncture
The jurisdiction it was submitted created by section 7 of the Act of 1952 is of exclusiveness qua the Courts subordinate to the High Court
It is not exclusive qua a Court of superior jurisdiction including a Court which can hear an appeal against its decision
The non obstante clause does not prevail over other provisions of the Code such as those which recognise the powers of the superior courts to exercise jurisdiction on transfer
It was submitted that the power of transfer vested in the High Court is exercisable qua Special Judges and is recognised not merely by Chadha s case but in earlier cases also Shri Jethmalani submitted
It was next submitted that apart from the power under sections 406 and 407 of the Code the power of transfer is also exercisable by the High Court under Article 228 of the Constitution
There  is no doubt that under this Article the case can be withdrawn from the Court of a Special Judge
It is open to the High Court to finally dispose it of
A chartered High Court can make orders of transfer under clause 29 of the Letters Patent
Article 1341b of the Constitution expressly recognises the existence of such power in every High Court
It was further submitted that any case transferred for trial to the High Court in which it exercises jurisdiction only by reason of the order of transfer is a case tried not in ordinary original criminal jurisdiction but in extraordinary original criminal jurisdiction
Some High Courts had both ordinary criminal jurisdiction as well as extraordinary 48 criminal original jurisdiction
The former was possessed by the High Courts of Bombay Madras and Calcutta
The first two High Courts abolished it in the 40 s and the Calcutta High Court continued it for quite some time and after the 50 s in a truncated form until it was finally done away with by the Code
After the Code the only original criminal jurisdiction possessed by all the High Courts is extraordinary
It can arise by transfer under the Code or the Constitution or under clause 29 of the Letters Patent
It was submitted that it was not right that extraordinary original criminal jurisdiction is contained only in clause 24 of the Letters Patent of the Bombay High Court
This is contrary to section 374 of the Code itself
That refers to all High Courts and not merely all or any one of the three Chartered High Courts
In PP Front New Delhi vs KK
Birla and others  the Delhi High Court recognised its extraordinary original criminal jurisdiction as the only one that it possessed
The nature of this jurisdiction is clearly explained in Madura Tirupparankundram etc
vs Alikhan Sahib and Ors 35 Calcutta Weekly Notes 1088 and Sunil Chandra Roy and another vs The State AIR 1954 Calcutta 305 paragraph 15
Reference may also be made to the Law Commissioner s 41st Report paragraphs 31 to 36 at page 29 and paragraph 31
10 at page 259
The 1952 Act was passed to provide for speedier trial but the procedure evolved should not be so directed it was submitted that it would violate Article 14 as was held in Anwar Ali Sarkar s case supra
Section 7 of the 1952 Act provides that notwithstanding anything contained in the Code of Criminal Procedure or in any other law the offences specified in sub section 1 of section 6 shall be triable by Special Judges only
So the law provides for a trial by Special Judge only and this is notwithstanding anything contained in sections 406 and 407 of the Code of Criminal Procedure 1973
Could it therefore be accepted that this Court exercised a power not given to it by Parliament or the Constitution and acted under a power not exercisable by it The question that has to be asked and answered is if a case is tried by a Special Judge or a court subordinate to the High Court against whose order an appeal or a revision would lie to the High Court is transferred by this Court to the High Court and such right of appeal or revision is taken away would not an accused be in a worse position than others This Court in RS Nayak vs AR Antulay  did not refer either to section 406 or section 407 of the Code
It is only made dear that if the application had been made to the 49 High Court under section 407 of the Code the High Court might have transferred the case to itself The second question that arises here is if such a wrong direction has been given by this Court can such a direction inter parties be challenged subsequently
This is really a value perspective judgement
In Kiran Singh and others vs Chaman Paswan and others l 19551 1 SCR 117 at 121 Venkatarama Ayyar J Observed that the fundamental principle is well established that a decree passed by a Court without jurisdiction is a nullity and that its validity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings
A defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties
This question has been well put if we may say so in the decision of this Court in ML Sethi vs RP Kapur  where Mathew J Observed that the jurisdiction was a verbal coat of many colours and referred to the decision in Anisminic Ltd vs Foreign Compensation Commission  where the majority of the House of Lords dealt with the assimilation of the concepts of lack  and excess  of jurisdiction or in other words the extent to which we have moved away from the traditional concept of jurisdiction
The effect of the dicta was to reduce the difference between jurisdictional error and error of law within jurisdiction almost to a vanishing point
What is a wrong decision on a question of limitation he posed referring to an article of Professor HWR Wade Constitutional and Administrative Aspects of the Anismanic case and concluded it is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the Court in the primitive sense of the term and render the decision or decree embodying the decision a nullity liable to collateral attack 
And there is no yardstick to determine the magnitude of the error other than the opinion of the Court
 Emphasis supplied While applying the ratio to the facts of the present controversy it has to be borne in mind that section 71 of the 1952 Act creates a condition which is sine qua non for the trial of offenders under section 61 of that Act
In this connection the offences specified under section 61 of the 1952 Act are those punishable under sections 161 162 50 163 164 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
This 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
It is true that in the first judgment in AR Antulay vs Ramdas Sriniwas Nayak and another  when this Court was analysing the scheme of the 1952 Act it referred to sections 6 and 7 at page 931 of the Reports
The arguments however were not advanced and it does not appear that this aspect with its remifications was present in the mind of the Court while giving the impugned directions
Shri Jethmalani sought to urge before us that the order made by the Court was not without jurisdiction or irregular
We are unable to agree
It appears to us that the order was quite clearly per incuriam
This Court was not called upon and did not decide the express limitation on the power conferred by section 407 of the Code which includes offences by public servants mentioned in the 1952 Act to be overridden in the manner sought to be followed as the consequential direction of this Court
This 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
See in this connection the observations in ML Sethi vs RP Kapur supra in which Justice Mathew considered Anisminic  and also see Halsbury s Laws of England 4th Edn
10 page 327 at para 720 onwards and also Amnon Rubinstein Jurisdiction and Illegality  1965 Edn
pages 16 50
Reference may also be made to Raja Soap Factory vs section P Shantaraj  The question of validity however is important in that the want of jurisdiction can be established solely by a superior Court and that in practice no decision can be impeached collaterally by any inferior Court
But the superior Court can always correct its own error brought to its notice either by way of petition or ex debito justitiae
See Rubinstein s Jurisdiction and Illegality  supra
In the aforesaid view of the matter and the principle reiterated it 51 is manifest that the appellant has not been ordered to be tried by a procedure mandated by law but by a procedure which was violative of Article 21 of the Constitution
That is violative of Articles 14 and 19 of the Constitution also as is evident from the observations of the 7 Judges Bench judgment in Anwar Ali Sarkar s case supra where this Court found that even for a criminal who was alleged to have committed an offence a special trial would be per se illegal because it will deprive the accused of his substantial and valuable privileges of defences which others similarly charged were able to claim
As Justice Vivian Bose observed in the said decision at page 366 of the report it matters not whether it was done in good faith whether it was done for the convenience of Government whether the process could be scientifically classified and labelled or whether it was an experiment for speedier trial made for the good of society at large
Justice Bose emphasised that it matters not how lofty and laudable the motives were
The question which must be examined is can fair minded reasonable unbiased and resolute men regard that with equanimity and call it reasonable just and fair regard it as equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which are obtained in India today
Judged by that view the singling out of the appellant in this case for a speedier trial by the High Court for an offence of which the High Court had no jurisdiction to try under the Act of 1952 was in our opinion unwarranted unprecedented and the directions given by this Court for the said purpose were not warranted
If that is the position when that fact is brought to our notice we must remedy the situation
In rectifying the error no procedural inhibitions should debar this Court because no person should suffer by reason of any mistake of the Court
The Court as is manifest gave its directions on 16th February 1984
Here no rule of res judicata would apply to prevent this Court from entertaining the grievance and giving appropriate directions
In this connection reference may be made to the decision of the Gujarat High Court in Soni Vrajlal Jethalal vs Soni Jadavji Govindji and others AIR 1972 Guj 148
Where DA Desai J speaking for the Gujarat High Court observed that no act of the court or irregularity can come in the way of justice being done and one of the highest and the first duty of all Courts is to take care that the act of the Court does no in jury to the suitors
It appears that when this Court gave the aforesaid directions on 16th February 1984 for the disposal of the case against the appellant by the High Court the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar s case supra
52 See Halsbury s Laws of England 4th End Vol 26 page 297 para 578 and page 300 the relevant notes 8 11 and 15 Dias on Jurisprudence 5th Edn pages 128 and 130 Young vs Bristol Aeroplane Co Ltd at 300
Also see the observations of Lord Goddard in Moore vs Hewitt at 272 A and Penny vs Nicholas 1950 2 AER 89 92A per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned so that in such cases some part of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong
See Morelle vs Wakeling   718F Also see State of Orissa vs The Titaghur Paper Mills Co Ltd 19851 3 SCR 26
We are of the opinion that in view of the clear provisions of section 72 of the Criminal Law Arnendment Act 1952 and Articles 14 and 21 of the Constitution these directions were legally wrong
The principle that the size of the Bench whether it is comprised of two or three or more Judges does not matter was enunciated in Young vs Bristol Aeroplane Co Ltd supra and followed by Justice Chinnappa Reddy in Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra  where it has been held that a Division Bench of three Judges should not overrule a Division Bench of two Judges has not been followed by our Courts
According to wellsettled law and various decisions of this Court it is also well settled that a Full Bench or a Constitution Bench decision as in Anwar Ali Sarkar s case supra was binding on the Constitution Bench because it was a Bench of 7 Judjes
The principle in England that the size of the Bench does not matter is clearly brought out in the decision of Evershed MR in the case of Morelle vs Wakeling supra
The law laid down by this Court is somewhat different
There is a hierarchy within the Court itself here where larger Benches overrule smaller Benches
See the observations of this Court in Mattulal vs Radhe Lal   Union of India  Anr
vs KS Subramanian  at page 92 and State of UP vs Ram Chandra Trivedi  at 473
This is the practice followed by this Court and now it is a crystallised rule of law
See in this connection as mentioned hereinbefore the observations of the State of Orissa vs Titagarh Paper Mills supra and also Union of India and others vs Godfrey Philips India Ltd 1985 Suppl 3 SCR 123 at 145
In support of the contention that a direction to delete wholly the 53 impugned direction of this Court be given reliance was placed on Satyadhvan Ghoshal vs Deorajini Devi  The ratio of the decision as it appears from pages 601 to 603 is that the judgment which does not terminate the proceedings can be challenged in an appeal from final proceedings
It may be otherwise if subsequent proceedings were independent ones
The appellant should not suffer on account of the direction of this Court based upon an error leading to conferment of jurisdiction
In our opinion we are not debarred from re opening this question and giving proper directions and correcting the error in the present appeal when the said directions on 16th February 1984 were violative of the limits of jurisdiction and the directions have resulted in deprivation of the fundamental rights of the appellant guaranteed by Articles 14 and 21 of the Constitution
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
It was directed to try the appellant under the directions of this Court which was in derogation of Article 21 of the Constitution
The directions have been issued without observing the principle of audi alteram partem
It is true that Shri Jethmalani has shown us the prayers made before the High Court which are at page 121 of the paper book
He argued that since the transfers have been made under section 407 the procedure would be that given in section 4078 of the Code
These directions Shri Jethmalani sought to urge before us have been given in the presence of the parties and the clarificatory order of April 5 1985 which was made in the presence of the appellant and his Counsel as well as the Counsel of the State Government of Maharashtra expressly recorded that no such submission was made in connection with the prayer for grant of clarification
We are of the opinion that Shri Jethmalani is not right when he said that the decision was not made per incuriam as submitted by the appellant
It is a settled rule that if a decision has been given per incuriam the Court can ignore it
It is also true that the decision of this Court in the case of The Bengal Immunity Co Ltd vs The State of Bihar  Ors
at 623 was not regarding an order which had become conclusive inter parties
The Court was examining in that case only the doctrine of precedents and determining the extent to which it could take a different view from one previously taken in a different case between different parties
According to Shri Jethmalani the doctrine of per incuriam has 54 no application in the same proceedings
We are unable to accept this A contention
We are of the opinion that this Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so the right to life and liberty
It can do so in exercise of its inherent jurisdiction in any proceeding pending before it without insisting on the formalities of a review application
Powers of review can be exercised in a petition filed under Article 136 or Article 32 or under any other provision of the Constitution if the Court is satisfied that its directions have resulted in the deprivation of the fundamental rights of a citizen or any legal right of the petitioner
See the observations in Prem Chand Garg vs Excise Commissioner UP Allahabad 1963 Supp 1 SCR 885
In support of the contention that an order of this Court be it administrative or judicial which is violative of fundamental right can always be corrected by this Court when attention of the Court is drawn to this infirmity it is instructive to refer to the decision of this Court in Prem Chand Garg vs Excise Commissioner UP Allahabad supra
This is a decision by a Bench of five learned Judges
Gajendragadkar J spoke for four learned Judges including himself and Shah J expressed a dissenting opinion
The question was whether Rule 12 of order XXXV of the Supreme Court Rules empowered the Supreme Court in writ petitions under Article 32 to require the petitioner to furnish security for the costs of the respondent
Article 145 of the Constitution provides for the rules to be made subject to any law made by Parliament and Rule 12 was framed thereunder
The petitioner contended that the rule was invalid as it placed obstructions on the fundamental right guaranteed under Article 32 to move the Supreme Court for the enforcement of fundamental rights
This rule as well as the judicial order dismissing the petition under Article 32 of the Constitution for non compliance with Rule 12 of order XXXV of the Supreme Court Rules were held invalid
In order to appreciate the significance of this point and the actual ratio of that decision so far as it is relevant for our present purpose it is necessary to refer to a few facts of that decision
The petitioner and 8 others who were partners of Ms Industrial Chemical Corporation Ghaziabad had filed under Article 32 of the Constitution a petition impeaching the validity of the order passed by the Excise Commissioner refusing permission to the Distillery to supply power alcohol to the said petitioners
The petition was admitted on 12th December 1961 and a rule was ordered to be issued to the respondents the Excise Commissioner of UP Allahabad and the State of UP
At the time when the rule was issued this Court directed under the impugned rule that the petitioners should deposit a security 55 Of Rs2500 in cash within six weeks
According to the practice of this A Court prevailing since 1959 this order was treated as a condition precedent for issuing rule nisi to the impleaded respondents
The petitioners found it difficult to raise the amount and so on January 24 1962 they moved this Court for modification of the said order as to security
This application was dismissed but the petitioners were given further time to deposit the said amount by March 26 1962
This order was passed on March 15 1962
The petioners then tried to collect the requisite fund but failed in their efforts and that led to the said petition filed on March 24 1962 by the said petitioners
The petitioners contended that the impugned rule in so far as it related to the giving of security was ultra vires because it contravened the fundamental right guaranteed to the petitioners under Article 32 of the Constitution
There were two orders namely one for security of costs and another for the dismissal of the previous application under Article 32 of the Constitution
This Court by majority held that Rule 12 of order XXXV of the Supreme Court Rules was invalid in so far as it related to the furnishing of security
The right to move the Supreme Court it was emphasised under Article 32 was an absolute right and the content of this right could not be circumscribed or impaired on any ground and an order for furnishing security for the respondent s costs retarded the assertion or vindication of the fundamental right under Article 32 and contravened the said right
The fact that the rule was discretionary did not alter the position
Though Article 1421 empowers the Supreme Court to pass any order to do complete justice between the parties the Court cannot make an order inconsistent with the fundamental rights guaranteed by Part III of the Constitution
No question of inconsistency between Article 1421 and Article 32 arose
Gajendragadkar J speaking for the majority of the Judges of this Court said that Article F 1421 did not confer any power on this Court to contravene The provisions of Article 32 of the Constitution
Nor did Article 145 confer power upon this Court to make rules empowering it to contravene the provisions of the fundamental right
At page 899 of the Reports Gajendragadkar J reiterated that the powers of this Court are no doubt very wide and they are intended and will always be exercised in the interests 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
It was emphasised that an order which this Court could 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 56 with the substantive provisions of the relevant statutory laws Emphasis A supplied
The Court therefore held that it was not possible to hold that Article 1421 conferred upon this Court powers which could contravene the provisions of Article 32
It follows therefore that the directions given by this Court on 16th February 1984 on the ground of expeditious trial by transferring Special Case No 24 of 1982 and Special Case No 3 of 1983 pending in the Court of Special Judge Greater Bombay Shri SB Sule to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court was contrary to the relevant statutory provision namely section 72 of the Criminal law Amendment Act 1952 and as such violative of Article 21 of the Constitution
Furthermore it violates Article 14 of the Constitution as being made applicable to a very special case among The special cases without any guideline as to which cases required speedier justice
If that was so as in Prem Chand Garg s case that was a mistake of so great a magnitude that it deprives a man by being treated differently of his fundamental right for defending himself in a criminal trial in accordance with law
If that was so then when the attention of the Court is drawn the Court has always the power and the obligation to correct it ex debito justitiae and treat the second application by its inherent power as a power of review to correct the original mistake
No suitor should suffer for the wrong of the Court
This Court in Prem Chand Garg s case struck down not only the administrative order enjoined by Rule 12 for deposit of security in a petition under Article 32 of the Constitution but also struck down the judicial order passed by the Court for non deposit of such security in the subsequent stage of the same proceeding when attention of the Court to the infirmity of the rule was drawn
It may be mentioned that Shah J was of the opinion that rule 12 was not violative
For the present controversy it is not necessary to deal with this aspect of the matter
The power of the Court to correct an error subsequently has been reiterated by a decision of a bench of nine Judges of this Court in Naresh Shridhar Mirajkar and others vs State of Maharashtra and another  The facts were different and not quite relevant for our present purposes but in order to appreciate the contentions urged it will be appropriate to refer to certain portions of the same
There was a suit for defamation against the editor of a weekly newspaper which was filed in the original side of the High Court
One of the witnesses prayed that the Court may order that publicity should not be given to his evidence m the press as his business would be affected
After hearing arguments the trial Judge passed an oral order 57 prohibiting the publication of the evidence of the witness
A reporter of the weekly along with other journalists moved this Court under Article 32 of the Constitution challenging the validity of the order
It was contended that 1 the High Court did not have inherent power to pass the order 2 the impugned order violated the fundamental rights of the petitioners under Article 191a and 3 the order was amenable to the writ jurisdiction of this Court under Article 32 of the constitution It was held by Gajendragadkar CJ for himself and five other learned Judges that the order was within the inherent power of the High Court
Sarkar J was of the view that the High Court had power to prevent publication of proceedings and it was a facet of the power to hold a trial in camera and stems from it
Shah J was however of the view that the Code of Civil Procedure contained no express provision authorising the Court to hold its proceedings in camera but if excessive publicity itself operates as an instrument of injustice the Court has inherent jurisdiction to pass an order excluding the public when the nature of the case necessitates such a course to be adopted
Hidayatullah J was however of the view that a Court which was holding a public trial from which the public was not excluded could not suppress the publication of the deposition of a witness heard not in camera but in open Court on the request of the witness that his business would suffer
Sarker J further reiterated that if a judicial tribunal makes an order which it has jurisdiction to make by applying a law which is valid in all respects that order cannot offend a fundamental right
An order which is within the jurisdiction of the tribunal which made it if the tribunal had jurisdiction to decide the matters that were litigated before it and if the law which it applied in making the order was a valid law could not be interfered with
It was reiterated that the tribunal having this jurisdiction does not act without jurisdiction if it makes an error in the application of the law
Hidayatullah J Observed at page 790 of the report that in Prem Chand Garg s case the rule required the furnishing of security in petition under Article 32 and it was held to abridge the fundamental rights
But it was said that the rule was struck down and not the judicial decision which was only revised
That may be so
But a judicial decision based on such a rule is not any better and offends the fundamental rights just the same and not less so because it happens to be a judicial order
If there be no appropriate remedy to get such an order removed because the Court has no superior it does not mean that the order is made good
When judged under the Constitution it is still a 58 void order although it may bind parties unless set aside
Hidayatullah J reiterated that procedural safeguards are as important as other safeguards
Hidayatullah J reiterated that the order committed a breach of the fundamental right of freedom of speech and expression
We are therefore of the opinion that the appropriate order would be to recall the directions contained in the order dated 16th February 1984
In considering the question whether in a subsequent proceeding we can go to the validity or otherwise of a previous decision on a question of law inter parties it may be instructive to refer to the decision of this Court in Smt
Ujjam Bai vs State of Uttar Pradesh 1963 1 SCR 778
There the petitioner was a partner in a firm which carried on the business of manufacture and sale of hand made bidis
On December 14 1957 the State Government issued a notification under section 41b of the UP Sales Tax Act 1948
By a subsequent notification dated 25th November 1958 hand made and machine made bidis were unconditionally exempted from payment of sales tax
The Sales Tax officer had sent a notice to the firm for the assessment of tax on sale of bidis during the assessment period 1st of April 1958 to June 30 1958
The firm claimed that the notification dated 14th December 1957 had exempted bidis from payment of sales tax and that therefore it was not liable to pay sales tax on the sale of bidis
This position was not accepted by the Sales Tax officer who passed certain orders
The firm appealed under section 9 of the Act to the Judge Appeals Sales Tax but that was dismissed
The firm moved the High Court under Article 226 of the Constitution
The High Court took the view that the firm had another remedy under the Act and the Sales Tax officer had not committed any apparent error in interpreting the notification of December 14 1957
The appeal against the order of the High Court on a certificate under Article 1331a of the Constitution was dismissed by this Court for non prosecution and the firm filed an application for a restoration of the appeal and condonation of delay
During the pendency of that appeal another petition was filed under Article 32 of the Constitution for the enforcement of the fundamental right under Articles 191g and 31 of the Constitution
Before the Constitution Bench which heard the matter a preliminary objection was raised against the maintainability of the petition and the correctness of the decision of this Court in Kailash Nath vs State of UP AIR 1957 SC 790 relied upon by the petitioner was challenged
The learned Judges referred the case to a larger Bench
It was held by this Court by a majority of five learned Judges that the answer to the questions must be in the negative
The case of Kailash Nath was not correctly decided and the decision was not sustainable on 59 the authorities on which it was based
Das J speaking for himself observed that the right to move this Court by appropriate proceedings for the enforcement of fundamental rights conferred by Part III of the Constitution was itself a guaranteed fundamental right and this Court was not trammelled by procedural technicalities in making an order or issuing a writ for the enforcement of such rights
The question however was whether a quasi judicial authority which made an order in the undoubted exercise of its jurisdiction in pursuance of a provision of law which was intra vires an error of law or fact committed by that authority could not be impeached otherwise than on appeal unless the erroneous determination related to a matter on which the jurisdiction of that body depended
It was held that a tribunal might lack jurisdiction if it was improperly constituted
In such a case the characteristic attribute of a judicial act or decision was that it binds whether right or wrong and no question of the enforcement of a fundamental right could arise on an application under Article 32
Subba Rao J was however unable to agree
Shri Jethmalani urged that the directions given on 16th February 1984 were not per incuriam
We are unable to accept this submission
It was manifest to the Bench that exclusive jurisdiction created under section 71 of the 1952 Act read with section 6 of the said Act when brought to the notice of this Court precluded the exercise of the power under section 407 of the Code
There was no argument no submission and no decision on this aspect at all
There was no prayer in the appeal which was pending before this Court for such directions
Furthermore in giving such directions this Court did not advert to or consider the effect of Anwar Ali Sarkar s case supra which was a binding precedent
A mistake on the part of the Court shall not cause prejudice to any one
He further added that the primary duty of every Court is to adjudicate the cases arising between the parties
According to him it is certainly open to a larger Bench to take a view different from that taken by the earlier Bench if it was manifestly erroneous and he urged that the trial of a corrupt Chief Minister before a High Court instead of a Judge designated by the State Government was not so injurious to public interest that it should be overruled or set aside
He invited us to consider two questions 1 does the impugned order promote justice and 2 is it technically valid After considering these two questions we are clearly of the opinion that the answer to both these questions is in the negative
No prejudice need be proved for enforcing the fundamental rights
Violation of a fundamental right itself renders the impugned action void
So also the violation of the principles of natural justice renders 60 the act a nullity
Four valuable rights it appears to us of the appellant have been taken away by the impugned directions i The right to be tried by a Special Judge in accordance with the procedure established by law and enacted by Parliament
ii The right of revision to the High Court under section 9 of the Criminal Law Amendment Act
iiiThe right of first appeal to the High Court under the same section
iv The
right to move the Supreme Court under Article 136 thereafter by way of a second appeal if necessary
In this connection Shri Rao rightly submitted that it is no necessary to consider whether section 374 of the Criminal Procedure Code confers the right of appeal to this Court from the judgment of a learned Judge of the High Court to whom the case had been assigned inasmuch as the transfer itself was illegal
One has to consider that section 407 of the Criminal Procedure Code was subject to the overriding mandate of section 71 of the 1952 Act and hence it does not permit the High Court to withdraw a case for trial to itself from the Court of Special Judge
It was submitted by Shri Rao that even in cases where a case is withdrawn by the High Court to itself from a criminal court other than the Court of Special Judge the High Court exercised transferred jurisdiction which is different from original jurisdiction arising out of initiation of the proceedings in the High Court
In any event section 374 of Criminal Procedure Code limits the right to appeals arising out of clause 24 of the Letters Patent
In aid of the submission that procedure for trial evolved in derogation of the right guaranteed under Article 21 of the Constitution would be bad reliance was placed on Attorney General of India vs Lachma Devi and others  In aid of the submission on the question of validity our attention was drawn to Jurisdiction and Illegality  by Amnon Rubinstein 1965 Edn
The Parliament did not grant to the Court the jurisdiction to transfer a case to the High Court of Bombay
However as the superior Court is deemed to have a general jurisdiction the law presumes that the Court acted within jurisdiction
In the instant case that presumption cannot be taken firstly because the question of jurisdiction was not agitated before the 61 Court secondly these directions were given per incuriem as mentioned hereinbefore and thirdly the superior Court alone can set aside an error in its directions when attention is drawn to that error
This view is warranted only because of peculiar facts and circumstances of the present case
Here the trial of a citizen in a Special Court under special jurisdiction is involved hence the liberty of the subject is involved
In this connection it is instructive to refer to page 126 of Rubinstein s aforesaid book
It has to be borne in mind that as in Kuchenmeister vs Home office here form becomes substance
No doubt that being so it must be by decisions and authorities it appears to us patently clear that the directions given by this Court on 16th February 1984 were clearly unwarranted by constitutional provisions and in derogation of the law enacted by the Parliament
See the observations of Attorney General vs Herman James Sillem 1864 10 HLC 703 where it was reiterated that the creation of a right to an appeal is an act which requires legislative authority neither an inferior Court nor the superior Court or both combined can create such a right it being one of limitation and extension of jurisdiction
See also the observations of Isaacs vs Roberston where it was reiterated by Privy Council that if an order is regular it can be set aside by an appellate Court if the order is irregular it can be set aside by the Court that made it on the application being made to that Court either under the rules of that Court dealing expressly with setting aside orders for irregularity or ex debito justitiae if the circumstances warranted namely violation of the rules of natural justice or fundamental rights
In Ledgard vs Bull 13 IA 134 it was held that under the old Civil Procedure Code under section 25 the superior Court could not make an order of transfer of a case unless the Court from which the transfer was souht to be made had jurisdiction to try
In the facts of the instant case the criminal revision application which was pending before the High Court even if it was deemed to be transferred to this Court under Article 139A of the Constitution it would not have vested this Court with power larger than what is contained in section 407 of Criminal Procedure Code
Under section 407 of the Criminal Procedure Code read with the Criminal law Amendment Act the High Court could not transfer to itself proceedings under sections 6 and 7 of the said Act
This Court by transferring the proceedings to itself could not have acquired larger jurisdiction
The fact that the objection was not raised before this Court giving directions on 16th February 1984 cannot amount to any waiver
In Meenakshi Naidoo vs Subramaniya Sastri 14 IA 160 it was held that if there was inherent incompetence in a High Court to deal with all questions before it then consent could not confer on the High Court any jurisdiction which it never possessed
62 We are clearly of the opinion that the right of the appellant under Article 14 regarding equality before the law and equal protection of law in this case has been violated
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
See Anwar Ali Sarkar s case supra
Here the appellant has a further right under Article 21 of the Constitution a right to trial by a Special Judge under section 71 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
Directions having been given in this case as we have seen without hearing the appellant though it appears from the circumstances that the order was passed in the presence of the counsel for the appellant these were bad
In Nawabkhan Abbaskhan vs The State of Gujarat 19743 SCR 427 it was held that an order passed without hearing a party which affects his fundamental rights is void and as soon as the order is declared void by a Court the decision operates from its nativity
It is proper for this Court to act ex debito justitiae to act in favour of the fundamental rights of the appellant
In so far as Mirajkar s case supra which is a decision of a Bench of 9 Judges and to the extent it affirms Prem Chand Garg s case supra the Court has power to review either under section 137 or suo motu the directions given by this Court
See in this connection PSR Sadhananatham vs Arunachalam  and Suk Das vs Union of Territory of Arunachal Pradesh 1986 2 SCC 401
See also the observations in Asrumati Debi vs Kumar Rupendra Deb Raikot and others   Satyadhyan Ghosal and others vs Smt
Deorajin Debi and another   Sukhrani dead by LLs and others vs Hari Shanker and others  and Bejoy Gopal Mukherji vs Pratul Chandra Ghose 1953 SCR 930
We are further of the view that in the earlier judgment the points for setting aside the decision did not include the question of withdrawal of the case from the Court of Special Judge to Supreme Court and transfer it to the High Court
Unless a plea in question is taken it cannot operate as res judicata
See Shivshankar Prasad Shah and others vs Baikunth Nath Singh and others   Bikan 63 Mahuri and others vs Mst
Bibi Walian and others AIR 1939 Patna 633
See also section L kapoor vs Jagmohan and others  on the question of violation of the principles of natural justice
Also see Maneka Gandhi vs Union of India 1978 2 SCR 621 at pages 674 68 1
Though what is mentioned hereinbefore in the Bengal Immunity Co Ltd vs The State of Bihar and others supra the Court was not concerned with the earlier decision between the same parties
At page 623 it was reiterated that the Court was not bound to follow a decision of its own if it was satisfied that the decision was given per incuriam or the attention of the Court was not drawn
It is also well settled that an elementary rule of justice is that no party should suffer by mistake of the Court
See Sastri Yagnapurushadji and others vs Muldas Bhudardas Vaishya and another   Jang Singh vs Brijlal l   Bhajahari Mondal vs The State of West Bengal  at 1284 1286 and Asgarali N Singaporawalla vs The State of Bombay  at 692
Shri Rao further submitted that we should not only ignore the directions or set aside the directions contained in the order dated 16th February 1984 but also direct that the appellant should not suffer any further trial
It was urged that the appellant has been deprived of his fundamental right guaranteed under Articles 14 and 21 as a result of the directions given by this Court
Our attention was drawn to the observations of this Court in Suk Das s case supra for this purpose
He further addressed us to the fact that six and half years have elapsed since the first complaint was lodged against the appellant and during this long period the appellant has suffered a great deal
We are further invited to go into the allegations and to held that there was nothing which could induce us to prolong the agony of the appellant
We are however not inclined to go into this question
The right of appeal under section 374 is limited to Clause 24 of Letters Patent
It was further submitted that the expression Extraordinary original criminal jurisdiction  under section 374 has to be understood having regard to the language used in the Code and other relevant statutory provisions and not with reference to decisions wherein Courts described jurisdiction acquired by transfer as extraordinary original jurisdiction
In that view the decisions referred to by Shri Jethmalani being Kavasji Pestonji Dalal vs Rustomji Sorabji jamadar  Anr AIR 1949 Bom
42 Sunil Chandra Roy  Anr
vs The State AIR 1954 Cal
305 Sasadhar Acharjya  Anr
vs Sir Charles Tegart  Ors 1935 Cal
Weekly Notes 1088 Peoples  Insurance Co Ltd vs Sardul Singh Caveeshgar  Ors AIR 1961 Punj
87 and PP Front New 64 Delhi vs K K Birla are not relevant
It appears to us that there is good deal of force in the argument that section 411A of the old Code which corresponds to section 374 of the new Code contained the expression original jurisdiction 
The new Code abolished the original jurisdiction of High Courts but retained the extraordinary original criminal jurisdiction conferred by clause 24 of the Letters Patent which some of the High Courts had
The right of appeal is therefore confined only to cases decided by the High Court in its Letter Patent jurisdiction which in terms is extraordinary original criminal jurisdiction 
By the time the new Code of Criminal Procedure 1973 was framed Article 21 had not been interpreted so as to include one right of appeal both on facts and law
Shri Ram Jethmalani made elaborate submissions before us regarding the purpose of the Criminal Law Amendment Act and the constitution of the Special Court
In our opinion these submissions have no relevance and do not authorise this Court to confer a special jurisdiction on a High Court not warranted by the statute
The observations of this Court in Re The Special Courts Bill 1978 are not relevant for this purpose
Similarly the observations on right of appeal in V C Shukla vs Delhi Administration   Shri Jethmalani brought to our notice certain facts to say that the powers given in the Criminal Law Amendment Act were sought to be misused by the State Government under the influence of the appellant
In our opinion these submissions are not relevant for the present purpose
Mr Jethmalani submitted that the argument that in so far as section 407 purports to authorise such a transfer it stands repealed by section 71 of the Criminal Law Amendment Act is wrong
He said it can be done in its extraordinary criminal jurisdiction
We are unable to accept this submission
We are also unable to accept the submission that the order of transfer was made with full knowledge of section 71 of the Criminal Law Amendment Act and the so called exclusive jurisdiction was taken away from Special Judges and the directions were not given per incuriam
That is not right
He drew our attention to the principles of interpretation of statutes and drew our attention to the purpose of section 71 of the Act
He submitted that when the Amending Act changes the law the change must be confined to the mischief present and intended to be dealt with
He drew us to the Tek Chand Committee Report and submitted that he did not wish that an 65 occasional case withdrawn and tried in a High Court was because of delay in disposal of corruption cases
He further submitted that interference with existing jurisdiction and powers of superior Courts can only be by express and clear language
It cannot be brought about by a side wind
Thirdly the Act of 1952 and the Code have to be read and construed together he urged
The Court is never anxious to discover a repugnancy and infer apro tanto repeal
Resort to the non obstante clause is permissible only when it is impossible to harmonise the two provisions
Shri Jethmalani highlighted before us that it was for the first time a Chief Minister had been found guilty of receiving quid pro quo for orders of allotment of cement to various builders by a Single Judge of the High Court confirmed by a Division Bench of the High Court
He also urged before us that it was for the first time such a Chief Minister did not have the courage to prosecute his special leave petition before this Court against the findings of three Judges of the High Court
Shri Jethmalani also urged that it was for the first time this Court found that a case instituted in 1982 made no progress till 1984
Shri Jethmalani also sought to contend that section 71 of the 1952 Act states shall be triable by Special Judges only but does not say that under no circumstances the case will be transferred to be tried by the High Court even in its Extraordinary original Criminal Jurisdiction
He submitted that section 4071iv is very much in the statute and and it is not repealed in respect of the cases pending before the Special Judge
There is no question of repealing section 4071iv
Section 407 deals with the power of the High Court to transfer cases and appeals
Section 7 is entirely different and one has to understand the scheme of the Act of 1952 he urged
It was an Act which provided for a more speedy trial of certain offences
For this it gave power to appoint Special Judges and stipulated for appointment of Special Judges under the Act
Section 7 states that notwithstanding anything contained in the Code the offences mentioned in sub section 1 of section 6 shall be triable by Special Judges only
By express terms therefore it takes away the right to transfer cases contained in the Code to any other Court which is not a Special Court
Shri Jethmalani sought to urge that the Constitution Bench had considered this position
That is not so
He submitted that the directions of this Court on 16th February 1984 were not given per incuriam or void for any reason
He referred us to Dias on jurisprudence 5th Edition page 128 and relied on the decision of Milianges vs George Frank Textiles Ltd 66 at 821
He submitted that the per incuriam rule A does not apply where the previous authority is alluded to
It is true that previous statute is referred to in the other judgment delivered on the same date in connection with different contentions
Section 71 was not referred to in respect of the directions given on 16th February 1984 in the case of RS Nayak vs AR Antulay supra
Therefore as mentioned hereinbefore the observations indubitably were per incuriam
In this case in view of the specific language used in section 7 it is not necessary to consider the other submissions of Shri Jethmalani whether the procedure for trial by Special Judges under the Code has stood repealed or not
The concept of repeal may have no application in this case
It is clear that words should normally be given their ordinary meaning bearing in mind the context
It is only where the literal meaning is not clear that one resorts to the golden rule of interpretation or the mischief rule of interpretation
This is well illustrated from the observations of Tindal CJ in Sussex Peerage Claim 18441  at 143
He observed The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act
If the words of the statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in that natural and ordinary sense
The words themselves alone do in such case best declare the intention of the lawgiver
But if any doubt arises from the terms employed by the legislature it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute and to have recourse to the preamble which according to Chief Justice Pyer Stewell vs Lord Zouch 1569 1 Plowd 353 at 369 is a key to open the minds of the makers of the Act and the mischiefs which they intend to redress
This passage states the commonly accepted view concerning the relationship between the literal and mischief rules of interpretation of statutes
Here there is no question as to what was the previous law and what was intended to be placed or replaced as observed by Lord Wilberforce in 274 House of Lords Debate Col 1294 on 16th November 1966 see Cross Statutory Interpretation second edition page 36
He observed that the interpretation of legislation is just a part of the process of being a good lawyer a multi faceted thing calling for many varied talents not a subject which can be confined in rules
67 When the words are clear nothing remains to be seen
If words are as such ambiguous or doubtful other aids come in
In this context the submission of controversy was whether the Code repealed the Act of 1952 or whether it was repugnant or not is futile exercise to undertake
Shri Jethmalani distinguished the decision in Chadha s case which has already been discussed
It is not necessary to discuss the controversy whether the Chartered High Courts contained the Extraordinary original Criminal Jurisdiction by the Letters Patent
Article 1341b 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 1341b 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
So the submissions made on this aspect by Shri Jethmalani are not relevant
Dealing with the submission that the order of the Constitution Bench was void or non est and it violated the principles of natural justice it was submitted by Shri Jethmalani that it was factually incorrect
Inspite of the submissions the appellant did not make any submission as to directions for transfer as asked for by Shri Tarkunde
It was submitted that the case should be transferred to the High Court
The Court merely observed there that they had given ample direction
No question of submission arose after the judgment was delivered
In any case if this was bad the fact that no objection had been raised would not make it good
No question of technical rules or res judicata apply Shri Jethmalani submitted that it would amount to an abuse of the process of the Court
He referred us to Re Tarling at 987 Ali vs Secretary of State for the Home Department at 1014 and Seervai s Constitutional Law Vol 1 pages 260 to 265
We are of the opinion that these submissions are not relevant
There is no abuse of the process of the Court
Shri Jethmalani submitted that there was no prejudice to the accused
There was prejudice to the accused in being singled out as a special class of accused for a special dispensation without room for any appeal as of right and without power of the revision to the High Court
There 
prejudice in that
Reliance placed on the decision of this Court in 68 Ramesh Chandra Arora vs The State at 927 was not proper in the facts of this case
If a discrimination is brought about by judicial perception and not by executive whim if it is unauthorised by law it will be in derogation of the right of the appellant as the special procedure in Anwar Ali Sarkar s case supra curtailed the rights and privileges of the accused
Similarly in this case by judicial direction the rights and privileges of the accused have been curtailed without any justification in law
Reliance was placed on the observations of the seven Judges Bench in Re Special Courts Bill 1978 supra
Shri Jethmalani relied on the said observations therein and emphasised that purity in public life is a desired goal at all times and in all situations and ordinary Criminal Courts due to congestion of work cannot reasonably be expected to bring the prosecutions to speedy termination
He further submitted that it is imperative that persons holding high public or political office must be speedily tried in the interests of justice
Longer these trials last justice will tarry assuming the charges to be justified greater will be the impediments in fostering democracy which is not a plant of easy growth
All this is true but the trial even of person holding public office though to be made speedily must be done in accordance with the procedure established by law
The provisions of section 6 read with section 7 of the Act of 1952 in the facts and circumstances of this case is the procedure established by law any deviation even by a judicial direction will be negation of the rule of law
Our attention was drawn to Article 145e and it was submitted that review can be made only where power is expressly conferred and the review is subject to the rules made under Article 145e by the Supreme Court
The principle of finality on which the Article proceeds applies to both judgments and orders made by the Supreme Court
But directions given per incuriam and in violation of certain constitutional limitations and in derogation of the principles of natural justice can always be remedied by the court ex debite justitiae
Shri Jethmalani s submission was that ex debite justitiae these directions could not be recalled
We are unable to agree with this submission
The Privy Council in Isaacs vs Robertson held that orders made by a Court of unlimited jurisdiction in the course of contentious litigation are either regular or irregular
If an order is regular it can only be set aside by an appellate Court if it is irregular it can be set aside by the Court that made it on application being made to that Court either under rules of Court dealing expressly 69 with setting aside orders for irregularity or ex debite justitiae if the circumstances warranted namely where there was a breach of the rules of natural justice etc
Shri Jethmalani urged before us that Lord Diplock had in express terms rejected the argument that any orders of a superior Court of unlimited jurisdiction can over be void in the sense that they can be ignored with impunity
We are not concerned with that
Lord Diplock delivered the judgment
Another Judge who sat in the Privy Council with him was Lord Keith of Kinkel
Both these Law Lords were parties to the House of Lords judgment in Re Racal Communications Ltd  case  and their Lordships did not extend this principle any further
Shri Jethmalani submitted that there was no question of reviewing an order passed on the construction of law
Lord Scarman refused to extend the Anisminic principle to superior Courts by the felicitous statement that this amounted to comparison of incomparables
We are not concerned with this controversy
We are not comparing incomparables
We are correcting an irregularity committed by Court not on construction or misconstruction of a statute but on non perception of certain provisions and certain authorities which would amount to derogation of the constitutional rights of the citizen
The directions given by the order of 16th February 1984 at page 557 were certainly without hearing though in the presence of the parties
Again consequential upon directions these were challenged ultimately in this Court and finally this Court reserved the right to challenge these by an appropriate application
The directions were in deprival of Constitutional rights and contrary to the express provisions of the Act of 1952
The directions were given in violation of the principles of natural justice
The directions were without precedent in the background of the Act of 1952
The directions definitely deprived the appellant of certain rights of appeal and revision and his rights under the Constitution
We do not labour ourselves on the question of discretion to disobey a judicial order on the ground of invalid judicial order
See discretion to Disobey by Mertimer R Kadish and Sanford H Kadish pages 111 and 112
These directions were void because the power was not there for this Court to transfer a proceeding under the Act of 1952 from one Special Judge to the High Court
This is not a case of collateral attack on judicial proceeding it is a case where the Court having no Court superior to it rectifies its own order
We recognise that the distinction between an error which entails absence of jurisdiction and 70 an error made within the jurisdiction is very fine
So fine indeed that it is rapidly being eroded as observed by Lord Wilberforce in Anisminic Ltd vs Foreign Compensation Commissioner at 244
Having regard to the enormity of the consequences of the error to the appellant and by reason of the fact that the directions were given suo motu we do not find there is anything in the observations of Ittavira Mathai vs Varkey Varkey and another 19641 1 SCR 495 which detract the power of the Court to review its judgment ex debite justitiae in case injustice has been caused
No court however high has jurisdiction to give an order unwarranted by the Constitution and therefore the principles of Bhatia Co operative Housing Society Ltd vs D C Patel 1953 SCR 185 at 190 would not apply
ln giving the directions this Court infringed the Constitutional safeguards granted to a citizen or to an accused and injustice results therefrom
It is just and proper for the Court to rectify and recall that in justice in the peculiar facts and circumstances of this case This case has caused us considerable anxiety
The appellant accused has held an important position in this country being the Chief Minister of a premier State of the country
He has been charged with serious criminal offences
His trial in accordance with law and the procedure established by law would have to be in accordance with the 1952 Act
That could not possibly be done because of the directions of this Court dated 16th February 1984 as indicated above
It has not yet been found whether the appellant is guilty or innocent
It is unfortunate unfortunate for the people of the State unfortunate for the country as a whole unfortunate for the future working of democracy in this country which though is not a plant of an easy growth yet is with deep root in the Indian polity that delay has occurred due to procedural wrangles
The appellant may be guilty of grave offences alleged against him or he may be completely or if not completely to a large extent innocent
Values in public life and perspective of these values in public life have undergone serious changes and erosion during the last few decades
What was unheard of before is common place today
A new value orientation is being undergone in our life and in our culture
We are at the threshold of the cross roads of values
It is for the sovereign people of the country to settle those conflicts yet the Courts have vital roles to play in such matters
With the avowed object of speedier trial the case of the appellant had been transferred to the High Court but on grounds of expediency of trial he cannot be subjected to a procedure unwarranted by law and contrary to the constitutional provisions
The appellant may or may not be an ideal 71 politician
It is a fact however that the allegations have been brought against him by a person belonging to a political party opposed to his but that is not the decisive factor
If the appellant Shri Abdul Rehman Antulay has infringed law he must be dealt with in accordance with the law
We proclaim and pronounce that no man is above the law but at the same time reiterate and declare that no man can be denied his rights under the Constitution and the laws
He has a right to be dealt with in accordance with the law and not in derogation of it
This Court in its anxiety to facilitate the parties to have a speedy trial gave directions on 16th February 1984 as mentioned hereinbefore without conscious awareness of the exclusive jurisdiction of the Special Courts under the 1952 Act and that being the only procedure established by law there can be no deviation from the terms of Article 21 of the Constitution of India
That is the only procedure under which it should have been guided
By reason of giving the directions on 16th February 1984 this Court had also unintentionally caused the appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special procedure not provided for by law
When these factors are brought to the notice of this Court even if there are any technicalities this Court should not feel shackled and decline to rectify that injustice or other vise the injustice noticed will remain forever a blot on justice
It has been said long time ago that Actus Curiae Neminem Gravabit an act of the Court shall prejudice no man
This maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law
Lord Cairns in Alexander Rodger vs The Comptoir D escompte De Paris Law Reports Vol
III 1869 71 page 465 at page 475 observed thus Now their Lordships are of opinion that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors and when the expression the act of the Court  is used it does not mean merely the act of the Primary Court or of any intermediate Court of appeal but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case
It is the duty of the aggregate of those Tribunals if I may use the expression to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court
 72 This passage was quoted in the Gujarat High Court by DA Desai J speaking for the Gujarat High Court in Vrajlal vs Jadavji supra as mentioned before
It appears that in giving directions on 16th February 1984 this Court acted per incuriam inasmuch it did not bear in mind consciously the consequences and the provisions of sections 6 and 7 of the 1952 Act and the binding nature of the larger Bench decision in Anwar Ali Sarkar s case supra which was not adverted to by this Court
The basic fundamentals of the administration of justice are simple
No man should suffer because of the mistake of the Court
No man should suffer a wrong by technical procedure of irregularities
Rules or procedures are the hand maids of justice and not the mistress of the justice
Ex debite justitiae we must do justice to him
If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied
This is a peculiar fact of this case which requires emphasis
Shri Rao learned counsel for the appellant has vehemently canvassed before us that the appellant has suffered a great wrong for over six and a half years
He has undergone trials and proceedings because of the mistakes of the Court
Shri Rao submitted that the appellant should be made not to suffer more
Counsel urged that political battles must be fought in the political arena
Yet a charge of infraction of law cannot remain uninvestigated against an erstwhile Chief Minister of a premier State of the country
Shri Rao has canvassed before us on the authority of Hussainara Khatoon vs Home Secretary State of Bihar Patna 1979 3 SCR 169 at 179 180 Kadra Pahadiyal 1 vs State of Bihar AIR 1981 SC 939 Kadra Pahadiya II vs State of Bihar AIR 1982 SC 1167 and Sheela Barse vs Union of India  He has however very strongly relied upon the observations of this Court in SukDas vs Union Territory of Arunachal Pradesh supra
In that case the appellant a government servant was tried and convicted to suffer imprisonment for two years for offences under Section 506 read with Section 34 IPC He was not represented at the trial by any lawyer by reason of his inability to afford legal representation
On appeal the High Court held that the trial was not vitiated since no application for legal aid was made by him
On appeal this Court quashed the conviction and considered the question whether the appellant would have to be tried in accordance with law after providing legal assistance to him
This Court felt that in the interests of justice the appellant should be reinstated in service without back wages and accordingly directed that no trial should take place
Shri Rao submitted that we should in the 73 facts of this case in the interests of justice direct that the appellant should not be tried again
Shri Rao submitted to let the appellant go only on this long delay and personal inconveniences suffered by the appellant no more injury be caused to him
We have considered the submission
Yet we must remind ourselves that purity of public life is one of the cardinal principal which must be upheld as a matter of public policy
Allegations of legal infractions and criminal infractions must be investigated in accordance with law and procedure established under the Constitution
Even if he has been wronged if he is allowed to be left in doubt that would cause more serious damage to the appellant
Public confidence in public administration should not be eroded any further
One wrong cannot be remedied by another wrong
ln the aforesaid view of the matter and having regard to the facts and circumstances of the case we are of the opinion that the legal wrong that has been caused to the appellant should be remedied
Let that wrong be therefore remedied
Let right be done and in doing so let no more further injury be caused to public purpose
ln the aforesaid view of the matter the appeal is allowed all proceedings in this matter subsequent to the directions of this Court on 16th February 1984 as indicated before are set aside and quashed
The trial shail proceed in accordance with law that is to say under the Act of 1952 as mentioned hereinbefore
RANGANATH MISRA J I have had the advantage of perusing the judgment proposed by my learned Brother Mukharji J While I agree with the conclusion proposed by my esteemed Brother keeping the importance of the matter particularly the consequences the decision may generate as also the fact that I was a party to the two Judge Bench decision of this Court reported in  in view I propose to express my opinion separately
Abdul Rehman Antulay the appellant was the Chief Minister of the State of Maharashtra from 1980 till January 20 1982 when he resigned his office but continued to be a member of the Maharashtra Legislative Assembly
Ramdas Shrinivas Nayak Respondent No I herein lodged a complaint in the Court of Chief Metropolitan Magistrate 28th Esplanade Bombay on September ll 1981 against Antulay alleging commission of several offences under the lndian Penal Code as also Section 52 of the Prevention of Corruption Act 1947  1947 Act  for short
The learned Magistrate was of the view that prosecution under Sections 161 and 165 of the Penal Code and 74 Section 5 of the 1947 Act required sanction as a condition precedent and in its absence the complaint was not maintainable
The Governor of Bombay later accorded sanction and the Respondent No 1 filed a fresh complaint this time in the Court of the Special Judge of Bombay alleging the commission of those offences which had formed the subject matter of the complaint before the Magistrate
On receiving summons from the Court of the particular Special Judge Antulay took the stand that the said Special Judge had no jurisdiction to entertain the complaint in view of the provisions of Section 7 of the Criminal Law Amendment Act 1952 hereinafter referred to as the 1952 Act to take cognizance and such cognizance could not be taken on a private complaint
These objections were overruled by the Special judge by order dated October 20 1982 and the case was set down for recording evidence of the prosecution
The Criminal Revision Petition of the accused against the order of the Special Judge was rejected by the Bombay High Court and it held that a private complaint was maintainable and in view of the notification specifying a particular Special Judge for the offences in question there was no basis for the objections
This Court granted special leave to the accused against the decision of the High Court that a private complaint was maintainable
Criminal Appeal No 347 of 1983 thus came to be instituted
ln the meantime objection raised before the Special Judge that without sanction the accused who still continued to be a member of Legislative Assembly could not be prosecuted came to be accepted by the Special Judge
The complainant filed a criminal revision application before the High Court questioning that order
This Court granted special leave against the decision that sanction was necessary whereupon Criminal Appeal No 356 of 1983 was registered and the pending criminal revision application before the High Court was transferred to this Court
Both the criminal appeals and the transferred criminal revision were heard together by a five Judge Bench of this Court but the two appeals were disposed of by two separate judgments delivered on February 16 1984
The judgment in Criminal Appeal No 347 of 1983 is reported in  In the present appeal we are not very much concerned with that judgment
The judgment of Criminal Appeal No 356 of 1983 is reported in  As already noticed the main theme of the criminal appeal was as to whether a member of the Legislative Assembly was a public servant for whose prosecution for the offences involved in the complaint sanction was necessary as a condition precedent
This Court at page 557 of the Reports came to hold To sum up the learned Special Judge was clearly in 75 error in holding that MLA is a public servant within the meaning of the expression in Section 12a and further erred in holding that a sanction of the Legislative Assembly of Maharashtra or majority of the members was a condition precedent to taking cognizance of offences committed by the accused
For the reasons herein stated both the conclusions are wholly unsustainable and must be quashed and set aside Consequently this Court directed This appeal accordingly succeeds and is allowed
The order and decision of the learned Special Judge Shri RB Sule dated July 25 1983 discharging the accused in Special Case No 24 of 1982 and Special Case No 31983 is hereby set aside and the trial shall proceed further from the stage where the accused was discharged
 This Court gave a further direction to the following effect The accused was the Chief Minister of a premier State the State of Maharashtra
By a prosecution launched as early as on September 11 1981 his character and integrity came under a cloud
Nearly 2 12 years have rolled by and the case has not moved an inch further
An expeditious trial is primarily in the interest of the accused and a mandate of Article 21
Expeditious disposal of a criminal case is in the interest of both the prosecution and the accused
Therefore Special Case No 24 of 1982 and Special Case No 383 pending in the Court of Special Judge Greater Bombay Shri RB Sule are withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court
On being so assigned the learned Judge may proceed to expeditiously dispose of the cases preferably by holding the trial from day to day
 Pursuant to this direction the two cases came to be posted for trial before Khatri J Of the Bombay High Court and trial opened on April 9 1984
The appellant challenged Khatri J s jurisdiction on 12th March 1984 when the matter was first placed before him but by two separate orders dated 13th March 1984 and 16th March 1984 the learned Judge rejected the objection by saying that he was bound by 76 this Court s direction of the 16th February 1984
Antulay then moved A this Court by filing an application under Article 32 of the Constitution
A two Judge Bench consisting of Desai and AN Sen JJ
by order dated 17th April 1984 dismissed the applications by saying Sen J  There is no merit in this writ petition
The writ petition is accordingly dismissed
In my view the writ petition challenging the validity of the order and judgment passed by this Court as nullity or otherwise incorrect cannot be entertained
I wish to make it clear that the dismissal of this writ petition will not prejudice the right of the petitioner to approach the Court with an appropriate review petition or to file any other application which he may be entitled in law to file
 Desai J I broadly agree with the conclusion recorded by my brother
The learned Judge in deciding the SLP Crl Nos
1949 50 of 1984 has followed the decision of this Court
The learned Judge was perfectly justified and indeed it was the duty of the learned Judge to follow the decision of this Court which is binding on him
Special leave petitions are dismissed
 19843 SCR 482
16 witnesses were examined by Khatri J by July 27 1984
Khatri J was relieved of trying the case on his request whereupon the learned Chief Justice nominated Mehta J to continue the trial
41 more witnesses were examined before him and at the stage when 57 witnesses in all had been examined for the prosecution the Trial Judge invited the parties to consider the framing of charges
43 draft charges were placed for his consideration on behalf of the prosecution and the learned Trial Judge framed 21 charges and recorded an order of discharge in respect of the remaining 22
At the instance of the complainant Respondent No 1 the matter came before this Court in appeal on special leave and a two Judge Bench of which I happened to be one by judgment dated April 17 1986 in Criminal Appeal No 658 of 1985 1962 2 SCC 716 set aside the order of discharge in regard to the several offences excepting extortion and directed the learned Trial 77 Judge to frame charges for the same
This Court requested the learned Chief Justice of the Bombay High Court to nominate another Judge to take up the matter from the stage at which Mehta J had made the order of discharge
Shah J came to be nominated by the learned Chief Justice to continue the trial
By order dated July 24 1986 Shah J rejected the application of the accused for proceeding against the alleged co conspirators by holding that there had been a long delay most of the prosecution witnesses had already been examined and that if the co conspirators were then brought on record a de novo trial would be necessitated
The appellant challenged the order of Shah J by filing a special leave petition before this Court wherein he further alleged that the High Court had no jurisdiction to try the case
A two Judge Bench of which Mukherji J my learned brother was a member granted special leave whereupon this Criminal Appeal No 468 of 1986 came to be registered
The Respondent No 1 asked for revocation of special leave in Criminal Miscellaneous Petition No 4248 of 1986
While rejecting the said revocation application by order dated October 29 1986 the two Judge Bench formulated several questions that arose for consideration and referred the matter for hearing by a Bench of seven Judges of the Court
That is how this seven Judge Bench has come to be constituted to hear the appeal
It is the settled position in law that jurisdiction of courts comes solely from the law of the land and cannot be exercised otherwise
So far as the position in this country is concerned conferment of jurisdiction is possible either by the provisions of the Constitution or by specific laws enacted by the Legislature
For instance Article 129 confers all the powers of a court of record on the Supreme Court including the power to punish for contempt of itself
Articles 131 132 133 134 135 137 138 and 139 confer different jurisdictions on the Supreme Court while Articles 225 226 227 228 and 230 deal with conferment of jurisdiction on the High Courts
Instances of conferment of jurisdiction by specific law are very common
The laws of procedure both criminal and civil confer jurisdiction on different courts
Special jurisdiction is conferred by special statute
It is thus clear that jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the Legislature
Jurisdiction is thus the authority or power of the court to deal with a matter and make an order carrying binding force in the facts
In support of judicial opinion for this view reference may be made to the permanent edition of Words and Phrases Vol
23A  at page 164
It would be appropriate to refer to two small passages occurring at pages 174 and 175 of the Volume
At page 174 referring to the decision in Carlile vs National 78 Oil  Development Co it has been stated Jurisdiction is the authority to hear and determine and in order that it may exist the following are essential 1 A court created by law organized and sitting 2 authority given it by law to hear and determine causes of the kind in question 3 power given it by law to render a judgment such as it assumes to render 4 authority over the parties to the case if the judgment is to bind them personally as a judgment in personam which is acquired over the plaintiff by his appearance and submission of the matter to the court and is acquired over the defendant by his voluntary appearance or by service of process on him 5 authority over the thing adjudicated upon its being located within the court s territory and by actually seizing it if liable to be carried away 6 authority to decide the question involved which is acquired by the question being submitted to it by the parties for decision Article 139A of the Constitution authorises this Court to transfer cases from a High Court to itself or from one High Court to another and is therefore not relevant for our purpose
Section 406 of the Code empowers this Court to transfer cases and appeals by providing 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 of 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 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 the State be supported by affidavit or affirmation
3   
The offences alleged to have been committed by the accused here are either punishable under the Penal Code or under Act 2 of 1947 both 79 Of which could have been tried in an appropriate court under the Criminal Procedure Code but Parliament by the Criminal Law Amendment Act 46 of 1952 1952 Act for short amended both the Penal Code as also the Criminal Procedure Code with a view to providing for a more speedy trial of certain offences
The relevant sections of the 1952 Act are sections 6 7 8 9 and 10
For convenience they are extracted below 6
Power to appoint special Judges 1 The State Government may by notification in the Official Gazette appoint as many special Judges as may be necessary for such area or areas as may be specified in the notification to try the following offences namely a an offence punishable under section 161 section 162 section 163 section 164 section 165 or section 165A of the Indian Penal Code 45 of 1860 or section 5 of the Prevention of Corruption Act 1947 2 of 1947 b any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause a
2 A persorn shall not be qualified for appointment as a special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an assistant Sessions Judge under the Code of Criminal Procedure 1898 5 of 1898 7
Class 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 l 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 80 try any offence other than an offence specified in section 6 A with which the accused may under the Code of Criminal Procedure 1898 5 of 1898 be charged at the same trial
Procedure and powers of Special Judges  1 A Special Judge may take cognizance of offences without the accused being committed to him for trial and in trying the accused persons shall follow the procedure prescribed by the Code of Criminal Procedure 1898 5 of 1898 for the trial of warrant cases by Magistrates
2 A special Judge may with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof and any pardon so tendered shall for the purposes of sections 339 and 339 A of the Code of Criminal Procedure 1898 5 of 1898 be deemed to have been tendered under section 338 of that Code
3 Save as provided in sub section  1  or sub section 2 the provisions of the Code of Criminal Procedure 1898 5 of 1898 shall so far as they are not inconsistent with this Act apply to the proceedings before a Special Judge and for the purposes of the said provisions the Court of the Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor
3 A In particular and without prejudice to the generality of the provisions contained in sub section 3 the provisions of sections 350 and 549 of the Code of Criminal Procedure 1898 5 of 1898 shall so far as may be
apply to the proceedings before a Special Judge and for the purposes of the said provisions a special Judge shall be deemed to be a Magistrate
4 A special Judge may pass upon any person convicted by him any sentence authorized by law for punish 81 ment of the offence of which such person is convicted 9
Appeal and revision The High Court may exercise so far as they may be applicable all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure I898 1 of 1898 on a High Court as if the Court of the special Judge were a Court of Session trying cases without a jury within the local limits of the jurisdiction of the High Court  10
Transfer of certain pending cases All cases triable by a special Judge under section 7 which immediately before the commencement of this Act were pending before any Magistrate shall on such commencement be forwarded for trial to the special Judge having jurisdiction over such cases
 On the ratio of the seven Judge Bench decision of this Court in the Slate of West Bengal vs Anwar Ali Sarkar   the vires of this Act are not open to challenge
The majority of the learned Judges in Anwar Ali Sarkar s case expressed the view that it was open to the Legislature to set up a special forum for expedient trial of particular class of cases
Section 7 l has clearly provided that offences specified in sub section 1 of section 6 shall be triable by the Special Judge only and has taken away the power of the courts established under the Code of Criminal Procedure to try those offences
Section 10 of the Act required all pending cases on the date of commencement of the Act to stand transferred to the respective Special Judge
Unless there be challenge to the provision creating exclusive jurisdiction of the Special Judge the procedural law in the Amending Act is binding on courts as also the parties and no court is entitled to make orders contrary to the law which are binding
As long as section 7 of the Amending Act of 1952 hold the field it was not open to any court including the apex Court to act contrary to section 71 of the Amending Act
The power to transfer a case conferred by the Constitution or by section 406 of the Code of Criminal Procedure does not specifically relate to the special Court
Section 406 of the Code could perhaps be applied on the principle that the Special Judge was a subordinate court for transferring a case from one special Judge to another special Judge
That would he so because such a transfer would not contravene the mandate of section 7 l  of the Amending Act of 1952 
While that may be so the provisions for transfer already referred to
do not authorise H 82 transfer of a case pending in the court of a special Judge first to the Supreme Court and then to the High Court for trial
A four Judge Bench in Raja Soap Factory vs SP Santharaj was considering the jurisdiction of the High Court to deal with a matter Shah J as he then was spoke for the court thus But if the learned Judge as reported in the summary of the judgment was of the opinion that the High Court is competent to assume to itself jurisdiction which it does not otherwise possess merely because an extra ordinary situation  has arisen with respect to the learned Judge we are unable to approve of that view
By jurisdiction  is meant the extent of the power which is conferred upon the court by its Constitution to try a proceeding its exercise cannot be enlarged because what the learned Judge calls an extra ordinary situation requires  the Court to exercise it
Brother Mukharji in his elaborate judgment has come to the conclusion that the question of transferring the case from the court of the special Judge to the High Court was not in issue before the five Judge Bench
Mr Jethmalani in course of the argument has almost accepted the position that this was not asked for on behalf of the complainant at the hearing of the matter before the Constitution Bench
From a reading of the judgment of the Constitution Bench it appears that the transfer was a suo motu direction of the court
Since this particular aspect of the matter had not been argued and counsel did not have an opportunity of pointing out the legal bar against transfer the learned Judges of this Court obviously did not take note of the special provisions in section 71 of the 1952 Act
I am inclined to agree with Mr Rao for Antulay that if this position had been appropriately placed the direction for transfer from the court of exclusive jurisdiction to the High Court would not have been made by the Constitution Bench
It is appropriate to presume that this Court never  intends to act contrary to law
There is no doubt that after the Division Bench of Desai and Sen JJ dismissed the writ petition and the special leave petitions on 17th April 1984 by indicating that the petitioner could file an appropriate review petition or any other application which he may be entitled in law to file
no further action was taken until charges Were framed on the basis of evidence of 57 witnesses and a mass of documents
After a gap of more than three years
want of jurisdiction of the High Court was sought to be reagitated before the two Judge Bench 83 in the present proceedings
During this intervening period of three years or so a lot of evidence was collected by examining the prosecution witnesses and exhibiting documents
A learned Judge of the High Court devoted his full time to the case
Mr Jethmalani pointed out to us in course of his argument that the evidence that has already been collected is actually almost three fourths of what the prosecution had to put in
Court s time has been consumed evidence has been collected and parties have been put to huge expenses
To entertain the claim of the appellant that the transfer of the case from the Special Judge to the High Court was without authority of law at this point of time would necessarily wipe out the evidence and set the clock back by about four years
It may be that some of the witnesses may no longer be available when the de novo trial takes place
Apart from these features according to Mr Jethmalani to say at this stage that the DIRECTION given by a five Judge Bench is not binding and therefore not operative will shake the confidence of the litigant public in the judicial process and in the interest of the system it should not be done
Long arguments were advanced on either side in support of their respective stands the appellant pleading that the direction for transfer of the proceedings from the Special Judge to the High Court was a nullity and Mr Jethmalani contending that the apex Court had exercised its powers for expediting the trial and the action was not contrary to law
Brother Mukharji has dealt with these submissions at length and I do not find any necessity to dwell upon this aspect in full measure
In the ultimate analysis I am satisfied that this Court did not possess the power to transfer the proceedings from the Special Judge to the High Court
Antulay has raised objection at this stage before the matter has been concluded
In case after a full dressed trial he is convicted there can be no doubt that the wise men in law will raise on his behalf inter alia the same contention as has been advanced now by way of challenge to the conviction
If the accused is really guilty of the offences as alleged by the prosecution there can be no two opinions that he should be suitably punished and the social mechanism of punishing the guilty must come heavily upon him
No known loopholes should be permitted to creep in and subsist so as to give a handle to the accused to get out of the net by pleading legal infirmity when on facts the offences are made out
The importance of this consideration should not be overlooked in assessing the situation as to whether the direction of this Court as contained in the five Judge Bench decision should be permitted to be questioned at this stage or not
Mr Rao for Antulay argued at length and Brother Mukharji has noticed all those contentions that by the change of the forum of the 84 trial the accused has been prejudiced
Undoubtedly by this process he misses a forum of appeal because if the trial was handled by a Special Judge the first appeal would lie to the High Court and further appeal by special leave could come before this Court
If the matter is tried by the High Court there would be only one forum of appeal being this Court whether as of right or by way of special leave
The appellant has also contended that the direction violates Article 14 of the Constitution because he alone has been singled out and picked up for being treated differently from similarly placed accused persons
Some of these aspects cannot be overlooked with ease
I must however indicate here that the argument based upon the extended meaning given to the contents of Article 21 of the Constitution though attractive have not appealed to me
One of the well known principles of law is that decision made by a competent court should be taken as final subject to further proceedings contemplated by the law of procedure
In the absence of any further proceeding the direction of the Constitution Bench of 16th of February 1984 became final and it is the obligation of everyone to implement the direction of the apex Court
Such an order of this Court should by all canons of judicial discipline be binding on this Court as well and cannot be interfered with after attaining finality
Brother Mukharji has referred to several authorities in support of his conclusion that an order made without jurisdiction is not a valid one and can be ignored overlooked or brushed aside depending upon the situation
I do not propose to delve into that aspect in my separate judgment
It is a well settled position in law that an act of the court should not injure any of the suitors
The Privy Council in the well known decision of Alexander Rodger vs The Comptori D  Escompte De Paris 1871 3 PC 465 observed One of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors and when the expression act of the court is used it does not mean merely the act of the primary court or of any intermediate court of appeal but the act of the court as a whole from the lowest court which entertains jurisdiction over the matter upto the highest court which finally disposes of the case
It is the duty of the aggregate of those Tribunals if I may use the expression to take care that no act of the court in the course of the whole of the proceed 85 ings does an injury to the suitors in courts
 Brother Mukharji has also reffered to several other authorities which support this view
Once it is found that the order of transfer by this Court dated 16th of February 1984 was not within jurisdiction by the direction of the transfer of the proceedings made by this Court the appellant should not suffer
What remains to be decided is the procedure by which the direction of the 16th of February 1984 could be recalled or altered
There can be no doubt that certiorari shall not lie to quash a judicial order of this Court
That is so on account of the fact that the Benches of this Court are not subordinate to larger Benches thereof and certiorari is therefore not admissible for quashing of the orders made on the judicial side of the court
Mr Rao had relied upon the ratio in the case of Prem Chand Garg vs Excise Commissioner UP Allahabad Brother Mukharji has dealt with this case at considerable length
This Court was then dealing with an Article 32 petition which had been filed to challenge the vires of rule 12 of order 35 of this Court s Rules
Gajendragadkar J as the learned Judge then was spoke for himself and three of his learned brethren including the learned Chief Justice
The facts of the case as appearing from the judgment show that there was a judicial order directing furnishing of security of Rs2500 towards the respondent s costs anl the majority judgment directed In the result the petition is allowed and the order passed against the petitioners on December 12 1961 calling upon them to furnish security of Rs2500 is set aside
 Shah J who wrote a separate judgment upheld the vires of the rule and directed dismissal of the petition
The fact that a judicial order was being made the subject matter of a petition under Article 32 of the Constitution was not noticed and whether such a proceeding was tenable was not considered
A nine Judge Bench of this Court in Naresh Shridhar Mirajkar  Ors
vs State of Maharashtra  Anr
  referred to the judgment in Prem Chand Garg s case supra
Gajendragadkar CJ who delivered the leading and majority judgment stated at page 765 of the Reports ln support of his argument that a judicial decision 86 can be corrected by this Court in exercise of its writ jurisdiction under Article 322 Mr Setalvad has relied upon another decision of this Court in Prem Chand Garg vs Excise Commissioner U P Allahabad supra 
In that case the petitioner had been required to furnish security for the costs of the respondent under rule 12 of order 35 of the Supreme Court Rules
By his petition filed under Article 32 he contended that the rule was invalid as it placed obstructions on the fundamental right guaranteed under Article 32 to move the Supreme Court for the enforcement of fundamental rights
This plea was upheld by the majority decision with the result that the order requiring him to furnish security was vacated
In appreciating the effect of this decision it is necessary to bear in mind the nature of the contentions raised before the Court in that case
The rule itself in terms conferred discretion on the court
while dealing with applications made under Article 32 to impose such terms as to costs as to the giving of security as it thinks fit
The learned Solicitor General who supported the validity of the rule urged that though the order requiring security to be deposited may be said to retard or obstruct the fundamental right of the citizen guaranteed by Article 321 the rule itself could not be effectively challenged as invalid because it was merely discretionary it did not impose an obligation on the court to demand any security and he supplemented his argument by contending that under Article 142 of the Constitution the powers of this court were wide enough to impose any term or condition subject to which proceedings before this Court could be permitted to be conducted
He suggested that the powers of this Court under Article 142 were not subject to any of the provisions contained in Part III including Article 321
On the other hand Mr Pathak who challenged the validity of the rule urged that though the rule was in form and in substance discretionary he disputed the validity of the power which the rule conferred on this Court to demand security 
It would thus be seen that the main controversy in the case of Prem Chand Garg centered round the question as to whether Article 145 conferred powers on this Court to make rules though they may be inconsistent with the constitutional provisions prescribed by Part III
Once it was held that the powers under Article 142 had to be read subject not only to the fundamental 87 rights but to other binding statutory provisions it became clear that the rule which authorised the making of the impugned order was invalid
It was in that context that the validity of the order had to be incidentally examined
The petition was made not to challenge the order as such but to challenge the validity of the rule under which the order was made
Once a rule was struck down as being invalid the order passed under the said rule had to be vacated
It is difficult to see how this decision can be pressed into service by Mr Setalvad in support of the argument that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself  
In view of this decision in Mirajkar s case supra it must be taken as concluded that judicial proceedings in this Court are not subject to the writ jurisdiction thereof
On behalf of the appellant at one stage it was contended that the appeal may be taken as a review
Apart from the fact that the petition of review had to be filed within 30 days and here there has been inordinate delay the petition for review had to be placed before the same Bench and now that two of the learned Judges of that Constitution Bench are still available it must have gone only before a Bench of five with those two learned Judges
Again under the Rules of the Court a review petition was not to be heard in Court and was liable to be disposed of by circulation
In these circumstances
the petition of appeal could not he taken as a review petition
The question therefore to be considered now is what is the modality to be followed for vacating the impugned direction
This being the apex Court no litigant has any opportunity of approaching any higher forum to question its decisions
Lord Buckmaster in  stated All rules of court are nothing but provisions intended to secure proper administration of justice
It is therefore essential that they should be made to serve and be subordinate to that purpose This Court in Gujarat vs Ram Prakash reiterated the position by saying Procedure is the handmaid and not a mistress of 88 law intended to subserve and facilitate the cause of justice and not to govern or obstruct it like all rules of procedure this rule demands a construction which would promote this Once judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the court it is not only appropriate but also the duty of the Court to rectify the mistake by exercising inherent powers
Judicial opinion heavily leans in favour of this view that a mistake of the Court can be corrected by the Court itself without any fetters
This is on the principle as indicated in Alexander Rodger s case supra
l am of the view that in the present situation the Court s inherent powers can be exercised to remedy the mistake
Mahajan J speaking for a four Judge Bench in Kishan Deo vs Radha Kissen    at page 153 stated The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree holder or the objections raised by the judgment debtors   The Privy Council in Debi vs Habib ILR 35 All 331 pointed out that an abuse of the process of the Court may be committed by the court or by a party
Where a court employed a procedure in doing something which it never intended to do and there is an abuse of the process of the court it can be corrected
Lord Shaw spoke for the Law lords thus Quite apart from section 151 any court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made
 It was pointed out by the Privy Council in Murtaza vs Yasin AIR 1916 PC 8
that Where substantial injustice would othenwise result the court has in their Lordships opinion an inherent power to set aside its own judgments of condemnation so as to let in bona fide claims by parties  
Indian authorities are in abundance to support the view that injustice done should be corrected by applying the principle actus curiae neminem gravabit an act of the court shall prejudice no one
89 To err is human is the off quoted saying
Courts including the apex one are no exception
To own up the mistake when judicial satisfaction is reached does not militate against its status or authority
Perhaps it would enhance both
It is time to sound a note of caution
This Court under its Rules of Business ordinarily sits in divisions and not as a whole one
Each Bench whether small or large exercises the powers vested in the Court and decisions rendered by the Benches irrespective of their size are considered as decisions of the Court
The practice has developed that a larger Bench is entitled to overrule the decision of a smaller Bench notwithstanding the fact that each of the decisions is that of the Court
That principle however would not apply in the present situation and since we are sitting as a Bench of Seven we are not entitled to reverse the decision of the Constitution Bench
Overruling when made by a larger Bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without affecting the binding effect of the decision in the particular case
Antulay therefore is not entitled to take advantage of the matter being before a larger Bench
In fact if it is a case of exercise of inherent powers to rectify a mistake it was open even to a five Judge Bench to do that and it did not require a Bench larger than the Constitution Bench for that purpose
Mr Jethmalani had told us during arguments that if there was interference in this case there was possibility of litigants thinking that the Court had made a direction by going out of its way because an influential person like Antulay was involved
We are sorry that such a suggestion was made before us by a senior counsel
If a mistake is detected and the apex Court is not able to correct it with a view to doing justice for fear of being misunderstood the cause of justice is bound to suffer and for the apex Court the apprehension would not be a valid consideration
Today it is Abdul Rehman Antulay with a political background and perhaps some status and wealth but tomorrow it can be any ill placed citizen
This Court while administering justice does not take into consideration as to who is before it
Every litigant is entitled to the same consideration and if an order is warranted in the interest of justice the contention of Mr Jethmalani cannot stand in the way as a bar to the making of that order
There is still another aspect which should be taken note of
Finality of the orders is the rule
By our directing recall of an order the well settled propositions of law would not be set at naught
Such a 90 situation may not recur in the ordinary course of judicial functioning and if there be one certainly the Bench before which it comes would appropriately deal with it
No strait jacket formula can be laid down for judicial functioning particularly for the apex Court
The apprehension that the present decision may be used as a precedent to challenge judicial orders of this Court is perhaps misplaced because those who are familiar with the judicial functioning are aware of the limits and they would not seek support from this case as a precedent
We are sure that if precedent value is sought to be derived out of this decision the Court which is asked to use this as an instrument would be alive to the peculiar facts and circumstances of the case in which this order is being made
I agree with the ultimate conclusion proposed by my earned brother Mukharji
OZA J I had the opportunity to go through opinion prepared by learned brother Justice Mukharji and I agree with his opinion
I have gone through these additional reasons prepared by learned brother Justice RN Misra
It appears that the learned brother had tried to emphasise that even if an error is apparent in a judgment or an order passed by this Court it will not be open to a writ of certiorari and I have no hesitation in agreeing with this view expressed
At the same time I have no hesitation in observing that there should be no hesitation in correcting an error in exercise of inherent jurisdiction if it comes to our notice
It is clear from the opinions of learned brothers Justice Mukharji and Justice Misra that the jurisdiction to try a case could only be conferred by law enacted by the legislature and this Court could not confer jurisdiction if it does not exist in law and it is this error which is sought to be corrected
Although it is unfortunate that it is being corrected after long lapse of time
I agree with the opinion prepared by Justice Mukharji and also the additional opinion prepared by Justice Misra 
RAY J I have the privilege of going through the judgment prepared by learned brother Mukharji J and I agreed with the same
Recently I have received a separate judgment from brother RN Misra J and I have decipherred the same
In both the judgments it has been clearly observed that judicial order of this court is not amenable to a writ of certiorari for correcting 91 any error in the judgment
It has also been observed that the jurisdiction or power to try and decide a cause is conferred on the courts by the Law of the Lands enacted by the Legislature or by the provisions of the Constitution
It has also been highlighted that the court cannot confer a jurisdiction on itself which is not provided in the law
It has also been observed that the act of the court does not injure any of the suitors
It is for this reason that the error in question is sought to be corrected after a lapse of more than three years
I agree with the opinion expressed by Justice Mukharji in the judgment as well as the additional opinion given by Justice Misra in his separate judgment
VENKATACHALIAH J Appellant a former Chief Minister of Maharashtra is on trial for certain offences under Sections 161 165 Indian Penal Code and under the Prevention of Corruption Act 1947
The questions raised in this appeal are extra ordinary in many respects touching as they do certain matters fundamental to the finality of judicial proceedings
It also raises a question of far reaching consequences whether independently of the review jurisdiction under Article 137 of the Constitution a different bench of this Court could undo the finality of earlier pronouncements of different benches which have otherwise reached finality
If the appeal is accepted it will have effect of blowing off by a side wind as it were a number of earlier decisions of different benches of this Court binding inter parties rendered at various stages of the said criminal prosecution including three judgments of 5 judge benches of this Court
What imparts an added and grim poignance to the case is that the appeal if allowed would set to naught all the proceedings taken over the years before three successive Judges of the High Court of Bombay and in which already 57 witnesses have been examined for the prosecution all these done pursuant to the direction dated 16121984 issued by a five judge Bench of this Court
This by itself should be no deterrant for this Court to afford relief if there has been a gross miscarriage of justice and if appropriate proceedings recognised by law are taken
Lord Atkin said Finality is a good thing but justice is a better
See 60 Indian Appeals 354 PC
Considerations of finality are subject to the paramount considerations of justice but the remedial action must be appropriate and known to law
The question is whether there is any such gross miscarriage of justice in this case if so whether relief can be granted in the manner now sought
The words of caution of the judicial committee in Venkata Narasimha Appa Row vs The Court of Wards  Ors
at page 664 are worth recalling 92 There is a salutary maxim which ought to be observed by all courts of last resort interest reipublicae ut sit finis litium
Its strict observance may occasionally entail hardship upon individual litigants but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this emphasis supplied
I have had the opportunity and the benefit of reading in draft the learned and instructive opinions of my learned Brothers Sabyasachi Mukharji J and Ranganath Misra J
They have though for slightly differing reasons proposed to accept the appeal
This will have the effect of setting aside five successive earlier orders of different benches of the Court made at different stages of the criminal prosecution including the three judgments of Benches of five Judges of this Court in RS Nayak vs AR Antulay  and A 
R Antulay vs R section Nayak  and R section Nayak vs A R Antulay  I have bestowed a respectful and anxious consideration to the weighty opinion of my brothers with utmost respect I regret to have to deny myself the honour of agreeing with them in the view they take both of the problem and the solution that has commended itse1f to them
Apart from other things how can the effect and finality of this Court s order dated 1741984 in Writ Petition No 708 of 1984 be unsettled in these proceedings Admittedly this order was made after hearing and does not share the alleged vitiating factors attributed to the order dated 1621984
That order concludes everything necessarily inconsistent with it
In all humility I venture to say that the proposed remedy and the procedure for its grant are fraught with far greater dangers than the supposed injustice they seek to relieve and would throw open an unprecedented procedural flood gate which might quite ironically enable a repetitive challenge to the present decision itself on the very grounds on which the relief is held permissible in the appeal
To seek to be wiser than the law it is said is the very thing by good laws forbidden
Well trodden path is the best path
Ranganath Misra J if I may say so with respect has rightly recognised these imperatives It is time to sound a note of caution
This Court 93 under its rules of business ordinarily sits in divisions and not as a whole one
Each Bench whether small or large exercises the powers vested in the Court and decisions rendered by the Benches irrespective of their size are considered as decisions of the Court
The practice has developed that a larger bench is entitled to over rule the decision of a small bench notwithstanding the fact that each of the decisions is that of the Court
That principle however would not apply in the present situation and since we are sitting as a Bench of Seven we are not entitled to reverse the decision of the Constitution Bench
 Learned brother however hopes this case to be more an exception than the Rule C Finality of the orders is the rule
By our directing recall of an order the well settled propositions of law would not be set at naught
Such a situation may not recur in the ordinary course of judicial functioning and if there be one certainly the bench before which it comes would appropriately deal with it
A brief advertence to certain antecedent events which constitute the back drop for the proper perception of the core issue arising in this appeal may not be out of place Appellant was the Chief Minister of Maharashtra between 961980 and 1211982 on which latter date he resigned as a result of certain adverse findings made against him in a Court proceeding
On 981982 Ramdas Srinivas Nayak respondent No 1 with the sanction of the Governor of Maharashtra accorded on 2871982 filed in the Court of Special Judge Bombay a criminal Case No 24 of 1982 alleging against the appellant certain offences under Section 161 and 165 of Indian Penal Code and Section 6 of the Prevention of Corruption Act 1947 of which the Special Judge took cognisance
Appellant questioned the jurisdiction of Special Judge to take cognisance of those offences on a private complaint
On 20101982 the Special Judge over ruled the objection
On 731983 the High Court dismissed appellant s revision petition in which the order of the Special Judge was assailed
The criminal case thereafter stood transferred to another Special Judge Shri RB Sule
Appellant did not accept the order of the High Court dated 731983 against which he 94 came up in appeal to this court by Special leave in Criminal appeal No 347 of 1983
During the pendency of this appeal however another important event occurred
The Special Judge Shri RB Sule by his order dated 2571983 discharged the appellant holding that the prosecution was not maintainable without the sanction of the Maharashtra Legislative Assembly of which the appellant continued to be a member notwithstanding his ceasing to be Chief Minister
Respondent No 1 challenged this order of discharge in a Criminal Revision Petition No 354 of 1982 before the High Court of Bombay
Respondent No 1 also sought and was granted special leave to appeal against Judge Sule s order directly to this court in Criminal appeal No 356 of 1983
This Court also withdrew to itself thesaid criminal revision application No 354 of 1982 pending before the High Court
All the three matters the two appeals Crl A 347 of 1983 and 356 of 1983 and Criminal Revision Petition so withdrawn to this Court were heard by a five Judge bench and disposed of by two separate Judgments dated 1621984
By Judgment in Crl
appeal No 356 of 1983 R section Nayak vs A R Antulay  this Court while setting aside the view of the Special Judge that sanction of the Legislative Assembly was necessary further directed the trial of the case by a Judge of the Bombay High Court
This Court observed that despite lapse of several years after commencement of the prosecution the case had not moved an inch further that expeditious trial is primarily necessary in the interest of the accused and mandate of Article 21 and that therefore Special case No 24 of 1982 and Special Case No 3 of 1983 pending in the Court of Special Judge Greater Bombay Shri RB Sule be withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court
The Judge so designated was also directed to dispose of the case expeditiously preferably by holding the trial from day to day
Appellant in these proceedings does not assail the correctness of the view taken by the 5 Judge Bench on the question of the sanction
Appellant has confined his challenge to what he calls the constitutional infirmity and the consequent nullity of the directions given as to the transfer of the case to a Judge of the High Court
In effctuation of the directions dated 1621984 of this Court the trial went on before three successive learned Judges of the High Court
It is not necessary here to advert to the reasons for the change of 95 Judges
It is however relevant to mention that when the matter was before Khatri J who was the first learned Judge to be designated by the Chief Justice on the High Court the appellant challenged his jurisdiction on grounds which amounted to a challenge to the validity of directions of this Court for the transfer of the case
Khatri J quite obviously felt bound to repel the challenge to his jurisdiction
Learned Judge said appellant s remedy if any was to seek a review of the directions dated 1621984 at the hands of this Court
Learned Judge also pointed out in his order dated 1431984 what according to him was the true legal position permitting the transfer of the case from the Special Judge to be tried by the High Court in exercise of its extra ordinary original criminal jurisdiction
In his order dated 1631984 Khatri J Observed  
Normally it is the exclusive jurisdiction of a Special Judge alone to try corruption charges
This position flows from Section 7 of the 1952 Act
However this does not mean that under no circumstances whatever can trial of such offences be not tried by a Court of superior jurisdiction than the Special Judge
I have no hesitation in contemplating at three situations in which a Court of Superior jurisdiction could try such offence   8
The third situation can be contemplated under the Code of Criminal Procedure itself where a Court of superior jurisdiction may have to try the special cases
Admittedly there are no special provisions in the 1952 Act or 1947 Act relating to the transfer of special cases from one Court to the other
So by virtue of the combined operation of Sec
83 of the 1952 Act and Section 42 of the Code of Criminal Procedure the High Court will have jurisdiction under Sec 407 of the Code in relation to the special cases also
An examination of the provisions of Section 407 leaves no doubt that where the requisite conditions are fulfilled the High Court will be within its legitimate powers to direct that a special case be transferred to and tried before itself
 Appellant did not seek any review of the directions at the hands of the Bench which had issued them but moved in this Court a Writ Petition No 708 of 1984 under Article 32 of the Constitution assailing taken by Khatri J as to jurisdiction which in substance meant 96 a challenge to the original order dated 1621984 made by this court
A A division Bench consisting of DA Desai and AN Sen JJ dismissed the writ petition on 1741984
Sen J speaking for the bench said In my view the writ petition challenging the validity of the order and judgment passed by this Court as nullity or otherwise is incorrect cannot be entertained
I wish to make it clear that the dismissal of this writ petition will not prejudice the right of the petitioner to approach the Court with an appropriate review petition or to file any other application which he may be entitled in law to file emphasis supplied AR Antulay vs Union 984 3 SCR 482 This order has become final
Even then no review was sought
It is also relevant to refer here to another pronouncement of a five Judge bench of this Court dated 541984 in RS Nayak vs AR Antulay  in Criminal misc
petition No 1740 of 1984 disposing of a prayer for issue of certain directions as to the procedure to be followed before the designated Judge of the High Court
The bench referred to the provisions of law which according to it enabled the transfer of the trial of the criminal case to the High Court
The view taken by my two learned Brothers it is needless to emphasise has the effect of setting at naught this pronouncement of the five Judge Bench as well
The five Judge bench considered the legal foundations of the power to transfer and said   
To be precise the learned Judge has to try the case according to the procedure prescribed for cases instituted otherwise than on police report by Magistrate
This position is clearly an unambiguous in view of the fact that this Court while allowing the appeal was hearing amongst others Transferred case No 347 of 1983 being the Criminal Revision Application No 354 of 1983 on the file of the High Court of the Judicature at Bombay against the order of the learned Special Judge Shri RB Sule discharging the accused
If the criminal revision application was not withdrawn to this Court the High Court while hearing criminal revision application could have under sec
4078 Code of Criminal Procedure 1973 would have to follow the same procedure which the Court of Sr 97 Judge would have followed if the case would not have been so transferred  emphasis supplied According to the Bench the High Court s power under Section 407 Criminal Procedure Code for withdrawing to itself the case from a Special Judge who was for this purpose a Sessions Judge was preserved notwithstanding the exclusivity of the jurisdiction of the Special Judge and that the Supreme Court was entitled to and did exercise that power as the Criminal Review application pending in the High Court had been withdrawn to the Supreme Court
The main basis of appellant s case is that all this is per incurriam without jurisdiction and a nullity 
In the meanwhile Mehta J was nominated by the Chief Justice of the High Court in place of Khatri
In addition to the 17 witnesses already examined by Khatri J 41 more witnesses were examined for the prosecution before Mehta J of the 43 charges which the prosecution required to be framed in the case Mehta J declined to frame charges in respect of 22 and discharged the appellant of those alleged offences
Again respondent No 1 came up to this Court which by its order dated 1741986 in Criminal Appeal No 658 of 1985 reported in set aside the order of discharge in regard to 22 offences and directed that charges be drawn in respect of them
This Court also suggested that another Judge be nominated to take up the case
It is thus that Shah J came to conduct the further trial
I may now turn to the occasion for the present appeal
In the further proceedings before Shah J the appellant contended that some of the alleged co conspirators some of whom had already been examined as prosecution witnesses and some others proposed to be so examined should also be included in the array of accused persons
This prayer Shah J had no hesitation to reject
It is against this order dated 2471986 that the present appeal has come up
With this appeal as an opening appellant has raised directions of the five Judges Bench on 1621984 of the serious violations of his constitutional rights of a hostile discrimination of having to face a trial before a Judge of the High Court instead of the Special Judge etc
A Division Bench consisting of ES Venkataramiah and Sabyasachi Mukharji JJ
in view of the seriousness of the grievances aired in the appeal referred it to be heard by a bench of seven Judges
The actual decision of Shah J in the appeal declining to pro 98 ceed against the alleged co conspirators is in a short compass
But the appeal itself has assumed a dimension far beyond the scope of the order it seeks to be an appeal against
The appeal has become significant not for its pale determined by the order under appeal but more for the collateral questions for which it has served as a spring board in this Court
Before going into these challenges it is necessary to say something on the merits of the order under appeal itself
An accused person cannot assert any right to a joint trial with his co accused
Normally it is the right of the prosecution to decide whom it prosecutes
It can decline to array a person as a co accused and instead examine him as a witness for the prosecution
What weight is to be attached to that evidence as it may smack of the testimony of a guilty partner in crime is a different matter
Prosecution can enter Nolle proseque against any accused person
It can seek to withdraw a charge against an accused person
These propositions are too well settled to require any further elaboration
Suffice it to say that the matter is concluded by the pronouncement of this Court in Choraria vs Maharashtra  where Hidayathullah J referred to the argument that the accomplice a certain Ethyl Wong in that case had also to be arrayed as an accused and repelled it observing 
Mr Jethmalani s argument that the Magistrate should have promptly put her in the dock because of her incriminating answers overlooks section 132 proviso 
The prosecution was not bound to prosecute her if they thought that her evidence was necessary to break a smugglers  ring
Ethyl Wong was prosecuted by section 132 proviso of the Indian Evidence Act even if she gave evidence incriminating herself
She was a competent witness although her evidence could only be received with the caution necessary in all accomplice evidence   On this point really appellant cannot be heard to complain
Of the so called co conspirators some have been examined already as prosecution witnesses some others proposed to be so examined and two others it would appear had died in the interregnum
The appeal on the point has no substance and would require to be dismissed
We must now turn to the larger issue raised in the appeal
While Shri PP Rao learned Senior Counsel for the appel 99 lant handling an otherwise delicate and sensitive issue deployed all the legal tools that a first rate legal smithy could design Shri Ram Jethmalani learned Senior Counsel however pointed out the impermissibility both as a matter of law and propriety of a different bench embarking upon the present exercise which in effect meant the exertion of an appellate and superior jurisdiction over the earlier five Judge Bench and the precedential problems and anomalies such a course would create for the future
The contentions raised and urged by Shri PP Rao admit of being summarised and formulated thus a That Supreme Court has and can exercise only such jurisdiction as is invested in it by the Constitution and the laws that even the power under Article 1421 is not unfettered but is confined within the ambit of the jurisdiction otherwise available to it that the Supreme Court like any other court cannot make any order that violates the law that Section 71 of the Criminal Law Amendment Act 1952 1952 Act envisages and sets up a special and exclusive forum for trial of certain offences that the direction for trial of those offences by a Judge of the High Court is wholly without jurisdiction and void and that Nullity  of the order could be set up and raised whenever and wherever the order is sought to be enforced or effectuated b That in directing a Judge of the High Court to try the case the Supreme Court virtually sought to create a new jurisdiction and a new forum not existent in and recognised by law and has accordingly usurped Legislative powers violating the basic tenets of the doctrine of separation of powers c That by being singled out for trial by the High Court appellant is exposed to a hostile discrimination violative of his fundamental rights under Articles 14 and 21 and if the principles in State of West Bengal vs Anwar Ali Sarkar  The law applicable to Anwar Ali Sarkar should equally apply to Abdul Rahman Antulay
d That the directions for transfer were issued without affording an opportunity to the appellant of being hear and therefore void as violative of Rules of Natural Justice
100 e That the transfer of the case to the High Court deprived appellant of an appeal as of right to the High Court
At least one appeal as of right is the minimal constitutional safeguard
f That any order including a judicial order even if it be of the highest Court which violates the fundamental rights of a person is a nullity and can be assailed by a petition under Article 32 of the Constitution on the principles laid down in Prem Chand Garg vs Excise Commissioner UP
 1963 J 1 SCR 885
g That at all events the order dated 1621984 in so far as the impugned direction is concerned is per incuriam passed ignoring the express statutory provisions of Section 71 of Criminal Law Amendment Act 1952 and the earlier decision of this Court in Gurucharan Das Chadha vs State of Rajasthan  h That the direction for transfer of the case is a clear and manifest case of mistake committed by the Court and that when a person is prejudiced by a mistake of Court it is the duty of the Court to correct its own mistake Actus Curiae Nominem Gravabit 9
Courts are as much human institutions as any other and share all human susceptibilities to error
Justice Jackson said 
Whenever decisions of one Court are reviewed by another a percentage of them are reversed
That reflects a difference in outlook normally found between personnel comprising different courts
However reversal by a higher court is not proof that justice is thereby better done
There is no doubt that if there were a super Supreme Court a substantial proportion of our reversals of state Courts would also be reversed
We are not final because we are infallible but we are infallible only because we are final   See Brown vs Allen at 540
In Broom vs Cassel  at 1131 Lord Diplock said 101  
It is inevitable in a hierarchical system of courts that there are decisions of the supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary
When I sat in Court of Appeal I sometimes thought the House of Lords was wrong in over ruling me
Even since that time there have been occasions of which the instant appeal itself is one when alone or in company I have dissented from a decision of the majority of this House
But the judicial system only works if someone is allowed to have the last word and if that last word once spoken is loyally accepted
 Judge Learned Hand referred to as one of the most profound legal minds in the jurisprudence of the English speaking world commended the Cromwellian intellectual humility and desired that these words of Cromwell be written over the portals of every church over court house and at every cross road in the nation I beseech ye      think that ye may be mistaken As a learned author said while infallibility is an unrealisable ideal correctness is often a matter of opinion
An erroneous decision must be as binding as a correct one
It would be an unattainable ideal to require the binding effect of a judgment to defend on its being correct in the absolute for the test of correctness would be resort to another Court the infallibility of which is again subject to a similar further investigation
No self respecting Judge would wish to act if he did so at the risk of being called a usurper whenever he failed to anticipate and predict what another Judge thought of his conclusions
Even infallibility would not protect him he would need the gift of prophecy ability to anticipate the fallibilities of others as well
A proper perception of means and ends of the judicial process that in the interest of finality it is inevitable to make some compromise between its ambitions of ideal justice in absolute terms and its limitations
Re Contentions a ard b In the course of arguments we were treated to a wide ranging and no less interesting submissions on the concept of jurisdiction and nullity in relation to judicial orders
Appellant contends that the earlier bench had no jurisdiction to issue the impugned directions which were without any visible legal support that they are void  as violative of the constitutional rights of the appellant and also as violating the Rules of natural justice
Notwithstanding these appeal to high sounding and emotive appellateous I have serious reservations about both the permissibility in these 102 proceedings of an examination of the merits of these challenges
Shri Rao s appeal to the principle of nullity and reliance on a collateral challenge in aid thereof suffers from a basic fallacy as to the very concept of the jurisdiction of superior courts
In relation to the powers of superior courts the familiar distinction between jurisdictional issues and adjudicatory issues appropriate to Tribunals of limited jurisdiction has no place
Before a superior court there is no distinction in the quality of the decision making process respecting jurisdictional questions on the one hand and adjudicatory issues or issues pertaining to the merits on the other
The expression jurisdiction or the power to determine is it is said a verbal cast of many colours
In the case of a Tribunal an error of law might become not merely an error in jurisdiction but might partake of the character of an error of jurisdiction
But otherwise jurisdiction is a legal shelter  a power to bind despite a possible error in the decision
The existence of jurisdiction does not depend on the correctness of its exercise
The authority to decide embodies a privilege to bind despite error a privilege which is inherent in and indispensable to every judicial function
The characteristic attribute of a judicial act is that it binds whether it be right or it be wrong
In Malkarjun vs Narahari 1900 27 IA 216 the executing Court had quite wrongly held that a particular person represented the estate of the deceased Judgment debtor and put the property for sale in execution
The judicial committee said In doing so the Court was exercising its jurisdiction
It made a sad mistake it is true but a court has jurisdiction to decide wrong as well as right
If it decides wrong the wronged party can only take the course prescribed by law for setting matters right and if that course is not taken the decision however wrong
cannot be disturbed
 In the course of the arguments there were references to the Anisminic case
In my view reliance on the Anisminic principle is wholly misplaced in this case
That case related to the powers of Tribunals of limited jurisdiction
It would be a mistake of first magnitude to import these inhibitions as to jurisdiction into the concept of the jurisdiction of superior courts
A finding of a superior court even on a question of its own jurisdiction however grossly erroneous it may otherwise be is not a nullity nor one which could at all be said to have been reached without jurisdiction susceptible to be ignored or to admit of any collateral attack
Otherwise the adjudications of 103 superior courts would be held up to ridicule and the remedies generally arising from and considered concomitants of such classification of judicial errors would be so seriously abused and expanded as to make a mockery of those foundational principles essential to the stability of administration of justice
The superior court has jurisdiction to determine its own jurisdiction and an error in that determination does not make it an error of jurisdiction
Holdsworth History of English Law vol
6 page 239 refers to the theoritical possibility of a judgment of a superior court being a nullity if it had acted coram non judice
But who will decide that question if the infirmity stems from an act of the Highest Court in the land It was observed 
It follows that a superior court has jurisdiction to determine its own jurisdiction and that therefore an erroneous conclusion as to the ambit of its jurisdiction is merely an abuse of its jurisdiction and not an act outside its jurisdiction   
ln the second place it is grounded upon the fact that while the judges of the superior courts are answerable only to God and the king the judges of the inferior courts are answerable to the superior courts for any excess of jurisdiction 
 E Theoritically the judge of a superior court might be liable if he acted coram non judice but there is no legal tribunal to enforce that liability
Thus both lines of reasoning led to the same conclusion the total immunity of the judges of the superior courts
 F Rubinstein in his Jurisdiction and Illegality says  
In practice every act made by a superior court is always deemed valid though possibly voidable wherever it is relied upon
This exclusion from the rules of validity is indispensable
Superior courts knew the final arbiters of the validity of acts done by other bodies their own decisions must be immune from collateral attack unless confusion is to reign
The superior courts decisions lay down the rules of validity but are not governed by these rules
 See P 12 104 A clear reference to inappositeness and limitations of the Anisminic Rule in relation to Superior Court so to be found in the opinion of Lord Diplock in Re Racal Communications Ltd  198 2 All ER 634 thus There is in my view however also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealably and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity
The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws
There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and indeed required to construe the words of the statute by which the question submitted to his decision was defined
There is simply no room for error going to his jurisdiction or as is conceded by counsel for the respondent is there any room for judicial review
Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only
Mistakes of law made by judges of the High Court acting in their judicial capacity as such can be corrected only by means of appeal to an appellate court and if as in the instant case the statute provides that the judge s deci sion shall not be appealable they cannot be corrected at all See page 639  640l
In the same case Lord Salmon said The Court of Appeal however relied strongly on the decision of your Lordship s House in Anisminic Ltd vs Foreign Compensation Commission That decision however was not in my respectful view in any way relevant to the present appeal
It has no applica tion to any decision or order made at first instance in the High Court of Justice
It is confined to decisions made by commissioners tribunals or inferior courts which can now be reviewed by the High Court of Justice just as the decision of inferior courts used to be reviewed by the old Court of King s Bench under the prerogative writs
If and when 105 any such review is made by the High Court
it Can be A appealed to the court of Appeal and hence by lave to your Lordship s House
See page 6411
Again in Issac vs Robertson the Privy Council reiterated the fallacy of speaking in the language of Nullity void etc in relation to Judgement of superior courts
lt Was pointed out that it could only be called irregular 
Lord Diplock observed Their Lordships would however take this opportunity to point out that in relation to orders of a court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that are  void  in the sense that they can be ignored with impunity by those persons to whom they are addressed and orders that arc voidable  and may be enforced unless and until they are set aside
Dicta that refers to the possibility of these being such a distinction between orders to which the description void  and void
able  respectively have been applied can be found in the opinion given by the judicial committee of the Privy Council in Marsh vs Marsh at 284 and Maxfoy vs United Africa Co Ltd 19611 All EWR 1169
 but in neither of those appeals not in any other case to which counsel has been able to refer their Lordships has any order of a court of unlimited jurisdiction been held to fall in a category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceeding to have them set aside
The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind   F The contrasting legal concepts of voidness and voidability form part of the English Law of contract
They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentious litigation
Such an order is either irregular or regular
if it is irregular it can be sel aside by the court that made it on application to High court
if it is regular it can only be set aside by an appellate court on appeal if there is one to which an appeal lies See page 143 Superior courts apart even the ordinary civil courts of the land 106 have jurisdiction to decide questions of their own jurisdiction
This Court in the context of the question whether the provisions of Bombay Rents Hotel and Lodging House Rates Control Act 1947 was not attracted to the premises in question and whether consequently the exclusion under Section 28 of that Act of the jurisdiction of all courts other than the Court of Small Causes in Greater Bombay did not operate observed 
The crucial point therefore in order to determine the question of the jurisdiction of the City Civil Court to entertain the suit is to ascertain whether in view of Section 4 of the Act the Act applies to the premises at all
If it does the City Civil Court has no jurisdiction but if it does not then it has such jurisdiction
The question at once arises as to who is to decide this point in controversy
It is well settled that a Civil Court has inherent power to decide the question of its own jurisdiction although as a result of its enquiry it may turn out that it has no jurisdiction over the suit
Accordingly we think in agreement with High Court that this preliminary objection is not well founded in principle or on authority and should be rejec ted See AIR 1953 SC 16 at 19
Bhatia Co operative Housing Society Ltd vs D C Patel It would in my opinion be wholly erroneous to characterise the directions issued by the five Judge bench as a nullity amenable to be ignored or so
declared in a collateral attack
A judgment inter parties is final and concludes the parties
In Re Hastings No 3  1959 l All ER 698 the question arose whether despite the refusal of a writ of Habeas Corpus by a Divisional Court of the Queen s bench the petitioner had yet a right to apply for the writ in the Chancery Division
Harman J called the supposed right an illusion Counsel for the applicant for whose argument I for one am much indebted said that the clou of his case as this that there still was this right to go from Judge to Judge and that if that were not so the whole structure would come to the ground   I think that the Judgment of the Queen s bench Divisional Court did make it clear that this supposed right 107 was an illusion
If that be right the rest follows
No body doubts that there was a right to go from court to court as my Lord has already explained
There are no different courts now to go to
The courts that used to sit in banc have been swept away and their places taken by Divisional Courts which are entirely the creatures of statute and rule
Applications for a writ of habeas corpus are assigned by the rule to Divisional Courts of the Queen s Bench Division and that is the only place to which a applicant may go   See page 701 In Daryao vs State of U P  it was held It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation
If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32
See page 583
In Trilok Chand vs H B Munshi Bachawat J recognised the same limitations even in matter pertaining to the conferment of fundamental rights 
The right to move this Court for enforcement of fundamental rights is guaranteed by Article 32
The writ under Article 32 issues as a matter of course if a breach of a fundamental right is established
But this does not mean that in giving relief under Article 32 the Court must ignore and trample under foot all laws of procedure evidence
limitation res judicata and the like   the object of the statutes of limitation was to give effect to the maxim interest reipublicate ut sit finislitium  Cop Litt 303 the interest of the State requires that there should be a limit to litigation
The rule of res judicata is founded upon the same rule of public policy   See page 842 and 843 It is to be recalled that an earlier petition WP No 78 of 1984 108 under Article 32 moved before this Court had been dismissed reserving leave to the appellant to seek review
The words of Venkataramiah J in Sheonandan Paswan vs State of Bihar 19871 SCC 288 at 343 are apt and are attracted to the present case The reversal of the earlier judgment of this court by this process strikes at the finality of judgments of this Court and would amount to the abuse of the power of review vested in this Court particularly in a criminal case
It may be noted that no other court in the country has been given the power of review in criminal cases
I am of the view that the majority judgment of Baharul Islam and RB Misra JJ should remain undisturbed
This case cannot be converted into an appeal against the earlier decision of this Court  Emphasis supplied 13
The exclusiveness of jurisdiction of the special judge under Section 71 of 1952 Act in turn depends on the construction to be placed on the relevant statutory provision
If on such a construction however erroneous it may be the court holds that the operation of Sec 407 Cr
PC is not excluded that interpretation will denude the plenitude of the exclusivity claimed for the forum
To say that the court usurped legislative powers and created a new jurisdiction and a new forum ignores the basic concept of functioning of courts
The power to interpret laws is the domain and function of courts
Even in regard to the country s fundamental law as a Chief Justice of the Supreme Court of the United States said but the Constitution is what the judges say it is
In Thomas vs Collins  it was said The case confronts us again with the duty our system places on this Court to say where the individual s freedom ends and the State s power begins
Choice on that border now as always is delicate   I am afraid appellant does himself no service by resting his case on these high conceptual fundamentals
The pronouncements of every Division Bench of this Court are pronouncements of the Court itself
A larger bench merely on the strength of its numbers cannot un do the finalily of the decisions of 109 Other division benches
If the decision suffers from an error the only A way to correct it is to go in Review under Article 137 read with order 40 Rule I framed under Article 145 before as far as is practicable the same judges
This is not a matter merely of some dispensable procedural form  but the requirement of substance
The reported decisions on the review power under the Civil Procedure Code when it had a similar provision for the same judges hearing the matter demonstrate the high purpose sought to be served thereby
In regard to the concept of Collateral Attack on Judicial Proceedings it is instructive to recall some observations of Van Fleet on the limitations and their desirability on such actions
one who does not understand the theory of a science who has no clear conception of its principles cannot apply it with certainty to the problems it is adapted to solve
In order to understand the principles which govern in determining the validity of RIGHTS AND TITLES depending upon the proceedings of judicial tribunals generally called the doctrine of COLLATERAL ATTACK ON JUDG MENTS it is necessary to have a clear conception of the THEORY OF JUDICIAL PROCEEDINGS    
And as no one would think of holding a judgmenf of the court of last resort void if its jurisdiction were debatable or even colorable the same rule must be applied to the judgments of all judicial tribunals
This is the true theory of judicial action when viewed collaterally
If any jurisdictional question is debatable or colorable the tribunal must decide it and an erroneous conclusion can ony be corrected by some proceeding provided by law for so doing com monly called a Direct Attack
It is only where it can be shown lawfully that some matter or thing essential to jurisdiction is wanting that the proceeding is void collaterally
It is the duty of the courts to set their faces against all collateral assaults on judicial proceedings for two reasons namely First
Not one case in a hundred has any merits in it  Second
Thc second reason why the courts should reduce the chances for a successful collateral attack to the H 110 lowest minimum is that they bring the courts themselves into disrepute
Many people look upon the courts as placed where jugglery and smartness are substituted for justice  such things tend to weaken law and order and to cause men to settle their rights by violence
For these reasons when the judgment rendered did not exceed the possible power of the court7 and the notice was sufficient to put the defendant upon inquiry a court should hesitate long before holding the proceedings void collaterally emphasis supplied 16
But in certain cases motions to set aside Judgments are permitted wherefor instance a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was wrongly shown as served or in ignorance of the fact that a necessaryD party had died and the estate was not represented
Again a judgment obtained by fraud could be subject to an action for setting it aside
Where such a judgment obtained by fraud tended to prejudice a non party as in the case of judgments in rem such as for divorce or jactita tion or probate etc
everl a person not eo nomine a party to the proceedings could seek a setting aside of the judgment
Where a party nas naa no nonce ana a aecree ls maae agamst him he can approach the court for setting aside the decision
In such a case the party is said to become entitled to relief ex debito justitiae on proof of the fact that there was no service
This is a class of cases where there is no trial at all and the judgment is for default
DN Gordan in his Actions to set aside judgments says The more familiar applications to set aside judgments are those made on motion and otherwise summarily
But there are judgments obtained by default which do not represent a judicial determination
In general Judgments rendered after a trial are conclusive between the parties unless and until reversed on appeal
Certainly in general judgments of superior courts cannot be overturned or questioned bet ween the parties in collateral actions
Yet there is a type of collateral action known as an action of review by which even a superior court s judgment can be questioned even between the parties and set aside 111 Cases of such frank failure of natural justice are obvious cases where relief is granted as of right
Where a person is not actually served but is held erroneously to have been served he can agitate that grievance only in that forum or in any further proceeding therefrom
In Issac s case  privy council referred to      a category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in exercise of the inherent jurisdiction of the court without needing to have recourse to the Rules that deal expressly with proceedings to setaside orders for irregularity and give to the judge a discretion as to the order he will make
In the present case by the order dated 541984 a five judge bench set out what according to it was the legal basis and source of jurisdiction to order transfer
On 1741984 appellant s writ petition challenging that transfer as a nullity was dismissed
These orders are not which appellant is entitled to have set aside ex debito justitiae by another bench
Reliance on the observations in Issac s case is wholly misplaced
The decision of the Privy Council in Rajunder Narain Rae vs Bijai Govind Singh 2 NIA 181 illustrates the point
Referring to the law on the matter Lord Brougham said E It is unquestionably the strict rule and ought to be distinctly understood as such that no cause in this Court can be re heard and that an order once made that is a report submitted to His Majesty and adopted by being made an order in Council is final and cannot be altered
The same is the case of the judgments of the House of Lords that is of the Court of Parliament or of the King in Parliament as it is sometimes expressed the only other supreme tribunal in this country
Whatever therefore has been really determined in these Courts must stand there being no power of re hearing for purpose of changing the judgment pronounced nevertheless if by misprision in embodying the judgments errors have been introduced these Courts possess by common law the same power which the Courts of Record and Statute have of rectifying the mistakes which have crept in
The Courts of Equity may correct the Decrees made while they are in minutes when they are 112 complete they can only vary them by re hearing and when they are signed and enrolled they can no longer be reheard but they must be altered
if at all by Appeal
The Courts of Law after the term in which the judgments are given can only alter them so as to correct misprisions a power given by the Statutes of Amendment
The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments and this Court must possess the same authority
The Lords have however gone a step further and have corrected mistakes introduced through inadvertence in the details of judgments or have supplied manifest defects in order to enable the Decrees to be enforced or have added explanatory matter or have reconciled inconsistencies
But with the exception of one case in 1669
Of doubtful authority here and another in Parliament of still less weight in 1642 which was an Appeal from the Privy Council to Parliament and at a time when the Government was in an unsettled state no instance it is believed can be produced of a rehearing upon the whole cause
 and an entire alteration of the judgment once pronounced  17
The second class of cases where a judgment is assailed for fraud is illustrated by the Duchess of Kingston s case  13th Ed
ln that case the Duchess was prosecuted for bigamy on the allegation that she entered into marriage while her marriage to another person a certain Hervey was still subsisting
In her defence the Duchess relied upon a decree of jactitation from an ecclesiastical court which purported to show that she had never been married to Hervey
The prosecution sought to get over this on the allegation the decree was obtained in a sham and collusive proceeding
The House of lords held the facts established before Court rendered the decree nugatory and was incapable of supplying that particular defence
De Grey CJ said that the collusive decree was not be impeached from within yet like all other acts of the highest authority it is impeachable from without although it is not permitted to show that the court was mistaken it may be shown that they were misled
Fraud which affected the judgment with described by the learned Chief Justice as an extrinsic collateral act
which vitiates the most solemn proceedings of courts of justice  18
The argument of nullity is too tall and has no place in this case
The earlier direction proceeded on a construction of Section 71 113 Of the Act and Section 407 Cr
PC We do not sit here in appeal over what the five Judge bench said and proclaim how wrong they were
We are simply not entitled to embark at a later stage upon an investigation of the correctness of the very same decision
The same bench can of course reconsider the matter under Article 137
However even to the extent the argument goes that the High Court under Section 407 Cr
PC could not withdraw to itself a trial from Special Judge under the 1952 Act the view of the earlier bench is a possible view
The submissions of Shri Ram Jethmalani that the exclusivity of the jurisdiction claimed for the special forum under the 1952 Act is in relation to Courts which would otherwise be Courts of competing or co ordinate jurisdictions and that such exclusivity does not effect the superior jurisdiction of the High Court to withdraw in appropriate situations the case to itself in exercise of its extraordinary original criminal jurisdiction that canons of Statutory construction appropriate to the situation require that the exclusion of jurisdiction implied in the 1952 amending Act should not be pushed beyond the purpose sought to be served by the amending law and that the law while creating the special jurisdiction did not seek to exclude the extra ordinary jurisdiction of the High Court are not without force
The argument relying upon Kavasji Pestonji Dalal vs Rustor Sorabji Jamadar  Anr AIR 1949 Bombay 42 that while the ordinary competing jurisdictions of other Courts were excluded the extraordinary jurisdiction of the High Court was neither intended to be
nor in fact affected is a matter which would also bear serious examination
In Sir Francis Bennion s Statutory Interpretation there are passages at page 433 which referring to presumption against implied repeal suggest that in view of the difficulties in determining whether an implication of repeal was intended in a particular situation it would be a reasonable presumption that where the legislature desired a repeal it would have made it plain by express words
In Sutherland Statutory construction the following passages occur Prior statutes relating to the same subject matter are to be compared with the new provisions and if possible by reasonable construction both are to be so construed that effect is given to every provision of each
Statutes in pari materia although in apparent conflict are so far as reasonably possible constructed to be in harmony with each other Emphasis supplied 114 When the legislature enacts a provision it has before it a 11 the other provisions relating to the same subject matter which it enacts at that time whether in the same statute or in a separate Act
It is evident that it has in mind the provisions of a prior Act to which it refers whether it phrases the later Act as amendment or an independent Act
Experience indicates that a legislature does not deliberately enact inconsistent provisions when it is rec ogzant of them both without expressly recognizing the inconsistency
emphasis supplied Reliance by Shri Ram Jethmalani on these principles to support his submission that the power under Section 407 was unaffected and that the decision in State of Rajasthan vs Gurucharan Das Chadda supra can not also be taken to have concluded the matter is not un arguable
I would therefore hold contentions a and b against appellant
19 Re contention c The fundamental right under Article 14 by all reckoning has a very high place in constitutional scale of values
Before a person is deprived of his personal liberty not only that the Procedure established by law must strictly be complied with and not departed from to the disadvantage or detriment of the person but also that the procedure for such deprivation of personal liberty must be reasonable fair and just
Article 21 imposes limitations upon the procedure and requires it to conform to such standards of reasonableness fairness and justness as the Court acting as sentinel of fundamental rights would in the context consider necessary and requisite
The court will be the arbiter of the question whether the procedure is reasonable fair and just
If the operation of Section 407 Cr
PC is not impliedly excluded and therefore enables the withdrawal of a case by the High Court to itself for trial as indeed has been held by the earlier bench the argument based on Article 14 would really amount to a challenge to the very vires of Section 407
All accused persons cannot claim to be tried by the same Judge
The discriminations inherent in the choice of one of the concurrent jurisdictions are not brought about by an inanimate statutory rule or by executive fiat
The withdrawal of a case under Section 407 is made by a conscious judicial act and is the result of judicial discernment
If the law permits the withdrawal of the trial to 115 the High Court from a Special Judge such a law enabling withdrawal would not prima facie be bad as violation of Article 14
The five Judge bench in the earlier case has held that such a transfer is permissible under law
The appeal to the principle in Anwar Ali Sarkar s case supra in such a context would be somewhat out of place
If the law did not permit such a transfer then the trial before a forum which is not according to law violates the rights of the accused person
In the earlier decision the transfer has been held to be permissible
That decision has assumed finality
If appellant says that he is singled out for a hostile treatment on the ground alone that he is exposed to a trial before a Judge of the 
High Court then the submission has a touch of irony
Indeed that a trial by a Judge of the High Court makes for added re assurance of justice has been recognised in a number of judicial pronouncement
The argument that a Judge of the High Court may not necessarily possess the statutory qualifications requisite for being appointed as a Special Judge appears to be specious
A judge of the High Court hears appeals arising from the decisions of the Special Judge and exercises a jurisdiction which includes powers co extensive with that of the trial court
There is thus no substance in contention c
Re Contentiond This grievance is not substantiated on facts nor having regard to the subsequent course of events permissible to be raised at this stage
These directions it is not disputed were issued on 1621984 in the open Court in the presence of appellant s learned counsel at the time of pronouncement of the judgment
Learned counsel had the right and the opportunity of making an appropriate submission to the court as to the permissibility or otherwise of the transfer
Even if the submissions of Shri Ram Jethmalani that in a revision application Section 403 of the Criminal Procedure Code does not envisage a right of being heard and that transfer of a case to be tried by the Judge of the High Court cannot in the estimate of any right thinking person be said to be detrimental to the accused person is not accepted however applicant by his own conduct has disentitled himself to make grievance of it in these proceedings
It cannot be said that after the directions were pronounced and before the order was signed there was no opportunity for the appellant s learned counsel to make any submissions in regard to the alleged illegality or impropriety of the directions
Appellant did 116 not utilise the opportunity
That apart even after being told by two A judicial orders that appellant if aggrieved may seek a review he did not do so
Even the grounds urged in the many subsequent proceedings appellant took to get rid of the effect of the direction do not appear to include the grievance that he had no opportunity of being heard
Where as here a party having had an opportunity to raise a grievance in the earlier proceedings does not do so and makes it a technicality later he cannot be heard to complain
Even in respect of so important jurisdiction as Habeas Corpus the observation of Gibson J in Re
Tarling l 19791 at 987 are significant Firstly it is clear to the Court that an applicant for habeas corpus is required to put forward on his initial application then whole of the case which is then fairly available to him he is not free to advance an application on one ground and to keep back a separate ground of application as a basis for a second or renewed application to the Court
The true doctrine of estoppel known as res judicata does not apply to the decision of this Court on an application for habeas corpus we refer to the words of Lord Parket CJ delivering the Judgment of the Court in Re Hastings No 2
There is however a wider sense in which the doctrine of res judicata may be applicable whereby it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings   This statement of the law by Gibson J was approved by Sir John Donaldson MR in the Court of appeal in Ali vs Secretary of State for the Home Department at 1019
Rules of natural justice embodies fairness in action
By all standards they are great assurances of Justice and fairness
But they should not be pushed to a breaking point
It is not inappropriate to recall what Lord Denning said in R vs Secretary of State for the Home Department ex parte Mughal  
The rules of natural justice must not be stretched too far
Only too often the people who have done wrong seek to invoke the rules of natural justice so as to avoid the consequences 
 Contention d is insubstantial
117 22
Contention e A The contention that the transfer of the case to the High Court involves the elimination of the appellant s right of appeal to the High Court which he would otherwise have and that the appeal under Article 136 of the Constitution is not as of right may not be substantial in view of Section 374 Cr PC which provides such an appeal as of right when the trial is held by the High Court
There is no substance in contention e either
Contention f The argument is that the earlier order of the five Judge bench in so far as it violates the fundamental rights of the appellant under Article 14 and 21 must be held to be void and amenable to challenge under Article 32 in this very Court and that the decision of this Court in Premchand Garg s case supra supports such a position
As rightly pointed out by Ranganath Misra J Premchand Garg s case needs to be understood in the light of the observations made in Naresh Sridhar Mirajkar  Ors
vs State of Maharashtra  Anr
  In Mirajkar s case Gajendragadkar CJ who had himself delivered the opinion in Garg s case noticed the contention based on Garg s case thus ln support of his argument that a judicial decision can be corrected by this Court in exercise of its writ jurisdiction under Article 322 Mr Setalvad has relied upon another decision of this Court in Prem Chand Garg vs Excise Commissioner UP Allahabad supra   Learned Chief Justice referring to the scope of the matter that fell for consideration in Garg s case stated 
It would thus be seen that the main controversy in the case of Prem Chand Garg centered round the question as to whether Article 145 conferred powers on this Court to make rules though they may be inconsistent with the constitutional provisions prescribed by part III
Once it as held that the powers under Article 142 had to be read subject not only to the fundamental rights but to other binding statutory provisions it became clear that the ruler which authorised the making of the impugned order was invalid
It was in that context that the validity of the 118 order had to be incidentally examined
The petition was A made not to challenge the order as such but to challenge the validity of the rule under which the order was made Repelling the contention learned Chief Justice said 
It is difficult to see now this decision can be pressed into service by Mr Setalvad in support of the argument that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself   A passage from Kadish  Kadish Discretion to Disobey 1973 Edn may usefully by recalled on one view it would appear that the right of a citizen to defy illegitimate judicial authority should be the same as his right to defy illegitimate legislative authority
After all if a rule that transgresses the Constitution or is otherwise invalid is no law at all and never was one it should hardly matter whether a court or a legislature made the rule
Yet the prevailing approach of the courts has been to treat invalid court orders quite differently from invalid statutes
The long established principle of the old equity courts was that an erroneously issued injunction must be obeyed until the error was judicially determined
Only where the issuing court could be said to have lacked jurisdiction in the sense of authority to adjudicate the cause and to reach the parties through its mandate were disobedient contemnors permitted to raise the invalidity of the order as a full defence
By and large American courts have declined to treat the unconstitutionality of a court order as a jurisdictional defect within this traditional equity principle and in notable instances they have qualified that principle even where the defect was jurisdiction in the accepted sense
 See 111
Indeed Ranganath Misra J in his opinion rejected the contention of the appellant in these terms In view of this decision in Mirajkar s case supra it must be taken as concluded that judicial proceedings in this Court are not subject to the writ jurisdiction thereof
 119 There is no substance in contention f either
Contention g It is asserted that the impugned directions issued by the five Judge Bench was per incuriam as it ignored the Statute and the earlier Chadda s case
B But the point is that the circumstance that a decision is reached per incuriam merely serves to denude the decision of its precedent value
Such a decision would not be binding as a judicial precedent
A co ordinate bench can disagree with it and decline to follow it
A larger bench can over rule such decision
When a previous decision is so overruled it does not happen nor has the overruling bench any jurisdiction so to do that the finality of the operative order inter parties in the previous decision is overturned
In this context the word decision  means only the reason for the previous order and not the operative order in the previous decision binding inter parties
Even if a previous decision is overruled by a larger bench the efficacy and binding nature of the adjudication expressed in the operative order remains undisturbed inter parties
Even if the earlier decision of the five Judge bench is per incuriam the operative part of the order cannot be interfered within the manner now sought to be done
That apart the five Judge bench gave its reason
The reason in our opinion may or may not be sufficient
There is advertence to Section 71 of the 1952 Act and to the exclusive jurisdiction created thereunder
There is also reference to Section 407 of the Criminal Procedure Code
Can such a decision be characterised as one reached per incurium Indeed Ranganath Misra J says this on the point Overruling when made by a larger bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without affecting the binding effect of the decision in the particular case
Antulay therefore is not entitled to take advantage of the matter being before a larger bench   I respectfully agree
Point g is bereft of substance and merits
Re Contention h The argument is that the appellant has been prejudiced by a mistake of the Court and it is not only within power but a duty as well H 120 of the Court to correct its own mistake so that no party is prejudiced by the Court s mistake Actus Curiae Neminem Gravabid
I am afraid this maxim has no application to conscious conclusions reached in a judicial decision
The maxim is not a source of a general power to reopen and rehear adjudication which have otherwise assumed finality
The maxim operates in a different and narrow area
The best illustration of the operation of the maxim is provided by the application of the rule of nunc pro tunc
For instance if owing to the delay in what the court should otherwise have done earlier but did later a party suffers owing to events occurring in the interrugnum the Court has the power to remedy it
The area of operation of the maxim is
generally procedural
Errors in judicial findings either of facts or law or operative decisions consciously arrived at as a part of the judicial exercise cannot be interfered with by resort to his maxim
There is no substance in contention h
lt is true that the highest court in the land should No by technicalities of procedure forge fetters on its own feet and disable itself in cases of serious miscarriages of justice
It is said that Life of law is not logic it has been experience
 But it is equally true as Cordozo said But Holmes did not tell us that logic is to be ignored when experience is silent
Those who do not put the teachings of experience and the lessons of logic out of consideration would tell what inspires confidence in the judiciary and what does not
Judicial vacillations fall in the latter category and undermine respect of the judiciary and judicial institutions denuding thereby respect for law and the confidence in the even handedness in the administrating of justice by Courts
It would be gross injustice says an author Miller data of jurisprudence  to decide alternate cases on opposite principles
The power to alter a decision by review must be expressly conferred or necessarily inferred
The power of review and the limitations on the power under Article 137 are implicit recognitions of what would otherwise be final and irrevocable
No appeal could be made to the doctrine of inherent powers of the Court either
Inherent powers do not confer or constitute a source of jurisdiction
They are to be exercised in aid of a jurisdiction that is already invested
The remedy of the appellant if any is recourse to Article 137 no where else
This appears to me both good sense and good law
The appeal is dismissed
RANGANATHAN J 1
I have had the benefit of perusing the 121 drafts of the judgments proposed by my learned brothers Sabyasachi Mukharji Ranganath Misra and Venkatachaliah JJ
On the question whether the direction given by this Court in its judgment dated 1621984 should be recalled I find myself in agreement with the conclusion of Venkatachaliah J though for slightly different reasons in preference to the conclusion reached by Sabyasachi Mukharji J and Ranganath Misra J
I would therefore like to set out my views separately on this issue
THE ISSUES 1
This is an appeal by special leave from a judgment of Shah J of the Bombay High Court
The appellant is being tried for offences under Ss 120B 420 161 and 165 of the Indian Penal Code IPC read with section 51d and 52 of the Prevention of Corruption Act 1947
The proceedings against the appellant were started in the Court of Sri Bhutta a Special Judge appointed under section 61 of the Criminal Law Amendment Act 1952 hereinafter referred to as the 1952 Act 
The proceedings have had a chequered career as narrated in the judgment of my learned brother Sabyasachi Mukharji J Various issues have come up for consideration of this Court at the earlier stages of the proceedings and the judgments of this Court have been reported In      and  At present the appellant is being tried by a learned Judge of the Bombay High Court nominated by the Chief Justice of the Bombay High Court in pursuance of the direction given by this Court in its order dated 1621984 reported in  By the order presently under appeal the learned Judge s framed as many as 79 charges against the appellant and b rejected the prayer of the appellant that certain persons named as co conspirators of the appellant in the complaint on the basis of which the prosecution has been launched should be arrayed as co accused along with him
But the principal contention urged on behalf of the appellant before us centres not round the merits of the order under appeal on the above two issues but round what the counsel for the appellant has described as a fundamental and far reaching objection to the very validity of his trial before the learned Judge
As already stated the trial is being conducted by the learned Judge pursuant to the direction of this Court dated 1621984
The contention of the learned counsel is that the said direction is per incuriam illegal invalid contrary to the principles of natural justice and violative of the fundamental rights of the petitioner
This naturally raises two important issues for our consideration A Whether the said direction is inoperative invalid or illegal as alleged and 122 B
Whether if it is this Court can and should recall withdraw revoke or set aside the same in the present proceedings
Since the issues involve a review or reconsideration of a direction given by a Bench of five judges of this Court this seven judge Bench has been constituted to hear the appeal
It is not easy to say which of the two issues raised should be touched upon first as whichever one is taken up first the second will not arise for consideration unless the first is answered in the affirmative
However as the correctness of the direction issued is impugned by the petitioner as there is no detailed discussion in the earlier order on the points raised by the petitioner and as Sabyasachi Mukharji J has expressed an opinion on these contentions with parts of which I am unable to agree it will be perhaps more convenient to have a look at the first issue as if it were coming up for consideration for the first time before us and then depending upon the answer to it consider the second issue as to whether this Court has any jurisdiction to recall or revoke the earlier order
The issues will therefore be discussed in this order
A ARE THE DIRECTIONS ON 1621984 PROPER VALID AND LEGAL 3
For the appellant it is contended that the direction given in the last para of the order of the Bench of five Judges dated 1621984 extracted in the judgment of Sabyasachi Mukharji J is vitiated by illegality irregularity and lack of jurisdiction on the following grounds i Conferment of jurisdiction on courts is the function of the legislature
It was not competent for this Court to confer jurisdiction on a learned Judge of the High Court to try the appellant as under the 1952 Act an offence of the type in question can be tried only by a special Judge appointed thereunder
This has been overlooked while issuing the direction which is therefore per incuriam
ii The direction above mentioned a relates to an issue which was not before the Court b on which no arguments were addressed and c in regard to which the appellant had no opportunity to make his submissions
It was nobody s case before the above Bench that the trial of the accused should no 123 longer be conducted by a Special Judge but should be before a High Court Judge
iii In issuing the impugned direction the Bench violated the principles of natural justice as mentioned above
It also overlooked that as a result thereof the petitioner a was discriminated against by being put to trial before a different forum as compared to other public servants accused of similar offences and b lost valuable rights of revision and first appeal to the High Court which he would have had if tried in the normal course
The direction was thus also violative of natural justice as well as the fundamental rights of the petitioner under Article 14 and 21 of the Constitution
Primary Jurisdiction 4
There can be and indeed counsel for the respondent had no quarrel with the initial premise of the learned counsel for the appellant that the conferment of jurisdiction on courts is a matter for the legislature
Entry 77 of List I entry 3 of List II and entries 1 2 11A and 46 of List III of the Seventh Schedule of the Constitution set out the respective powers of parliament and the State Legislatures in that regard
It is common ground that the jurisdiction to try offences of the type with which are concerned here is vested by the 1952 Act in Special Judges appointed by the respective State Governments
The first question that has been agitated before us is whether this Court was right in transferring the case for trial from the Court of a Special Judge to a Judge nominated by the Chief Justice of Bombay
High Court s Power of Transfer 5
The power of the Supreme Court to transfer cases can be traced in criminal matters either to article 139A of the Constitution or Section 406 of the Code of Criminal Procedure Cr PC 1973
Here again it is common ground that neither of these provisions cover the present case
Sri Jethmalani learned counsel for the respondent seeks to support the order of transfer by reference to Section 407 not Section 406 of the Code and cl 29 of the Letters Patent of the Bombay High Court
Section 407 reads thus 1 Whenever it is made to appear to the High Court 124 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 Code 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 tried by any Court not qualified under Section 177 to 185 both inclusive but in other respects competent to inquire into or try such offences ii that any particular case or appeal or class of cases or appeals be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction iii that any particular case be committed for trial to a Court of Session or iv that any particular case or appeal be transferred to and tried before itself
2 the High Court may act either on the report of the lower court or on the application of a party interested or on its own initiative XXX XXX XXX XXX XXX XXX XXX XXX XXX 9 Nothing in this section shall be deemed to affect any order of Government under Section 197 And cl 29 of the Letters Patent of the Bombay High Court runs thus And we do further ordain that the said High Court shall have power to direct the transfer of any criminal case or 125 appeal from any Court to any other Court of appeal or superior jurisdiction and also to direct the preliminary investigation of trial of any criminal case by any officer of Court otherwise competent to investigate or try it though such case belongs in ordinary course to the jurisdiction of some other officer of Court
 The argument is that this power of transfer vested in the High Court can well be exercised by the Supreme Court while dealing with an appeal from the High Court in the case
For the appellant it is contended that the power of transfer under section 407 cannot be invoked to transfer a case from a Special Judge appointed under the 1952 Act to the High Court
Learned counsel for the appellant contends that the language of section 71 of the Act is mandatory it directs that offences specified in the Act can be tried only by persons appointed under section 62 of the Act by the State Government to be special judges No other Judge it is said has jurisdiction to try such a case even if he is a Judge of the High Court
In this context it is pointed out that a person to be appointed as a special Judge under section 62 of the 1952 Act should be one who is or has been a Sessions Judge which expression in this context includes an Additional Sessions Judge andor an Assistant Sessions Judge
All High Court Judges may not have been Sessions Judges earlier and it is common ground Shah J who has been nominated by the Chief Justice for trying this case does not fulfill the qualifications prescribed for appointment as a Special Judge
But that consideration apart the argument is that while a High Court can transfer a case from one special judge to another and the Supreme Court from a special judge in one State to a special judge in another State a High Court cannot withdraw a case from a Special Judge to itself and the Supreme Court cannot transfer a case from a Special Judge to the High Court
On the other hand it is contended for the respondent that the only purpose of the 1952 Act is to ensure that cases of corruption and bribery do not get bogged up in the ordinary criminal courts which are over burdened with all sorts of cases
Its object is not to create special courts in the sense of courts manned by specially qualified personnel or courts following any special type of procedure
All that is done is to earmark some of the existing sessions judges for trying these offences exclusively
The idea is just to segregate corruption and bribery cases to a few of the sessions judges so that they could deal with them 126 effectively and expeditiously
It is a classification in which the emphasis is on the types of offences and nature of offenders rather than on the qualifications of judges
That being so the requirement in section 71 that these cases should be tried by special judges only is intended just to exclude their trial by the other normal criminal courts of coordinate jurisdiction and not to exclude the High Court
Before dealing with these contentions it may be useful to touch upon the question whether a judge of a High Court can be appointed by the State Government as a special judge to try offences of the type specified in section 6 of the 1952 Act
It will be seen at once that not all the judges of the High Court but only those elevated from the State subordinate judiciary would fulfill the qualifications prescribed under section 62 of the 1952 Act
Though there is nothing in sections 6 and 7 read together to preclude altogether the appointment of a judge of the High Court fulfilling the above qualifications as a special judge it would appear that such is not the atleast not the normal contemplation of the Act
Perhaps it is possible to argue that under the Act it is permissible for the State Government to appoint one of the High Court Judges who has been a Sessions Judge to be a Special Judge under the Act
If that had been done that Judge would have been a Special Judge and would have been exercising his original jurisdiction in conducting the trial
But that is not the case here
In response to a specific question put by us as to whether a High Court Judge can be appointed as a Special Judge under the 1952 Act Shri Jethmalani submitted that a High Court Judge cannot be so appointed
I am inclined to agree
The scheme of the Act in particular the provision contained in sections 83A and 9 militate against this concept
Hence apart from the fact that in this case no appointment of a High Court Judge as a Special Judge has in fact been made it is not possible to take the view that the statutory provisions permit the conferment of a jurisdiction to try this case on a High Court Judge as a Special Judge
Turning now to the powers of transfer under section 407 one may first deal with the decision of this Court in Gurucharan Das Chadha vs State of Rajasthan 1966 2 SCR 678 on which both counsel strongly relied
That was a decision by three judges of this Court on a petition under section 527 of the 1898 Cr
PC corresponding to section 406 of the 1973 CrPC
The petitioner had prayed for the transfer of a case pending in the court of a Special Judge in Bharatpur Rajasthan to another criminal court of equal or superior jurisdiction subordinate to a High Court other than the High Court of 127 Rajasthan
The petition was eventually dismissed on merits
But the Supreme Court dealt with the provisions of section 527 of the 1898 A Cr
PC in the context of an objection taken by the respondent State that the Supreme Court did not have the jurisdiction to transfer a case pending before the Special Judge Bharatpur
The contention was that a case assigned by the State Government under the 1952 Act to a Special Judge cannot be transferred at all because under the terms of that Act which is a self contained special law such a case must be tried only by the designated Special Judge
The Court observed that the argument was extremely plausible but not capable of bearing close scrutiny
After referring to the provisions of section 6 7 and 8 of the 1952 Act the Court set out the arguments for the State thus The Advocate General Rajasthan in opposing the petition relies principally on the provisions of section 71 and 72 and contends that the two sub sections create two restrictions which must be read together
The first is that offences specified in section 61 can be tried by Special Judges only
The second is that every such offence shall be tried by the Special Judge for the area within which it is committed and if there are more special judges in that area by the Special Judge chosen by the Government
These two conditions being statutory it is submitted that no order can be made under section 527 because on transfer even if a special judge is entrusted with the case the second condition is bound to be broken
 Dealing with this contention the Court observed This condition if literally understood would lead to the conclusion that a case once made over to a special Judge in an area where there is no other special Judge cannot be transferred at all
This could hardly have been intended
If this were so the power to transfer a case intra state under section 526 of the Code of Criminal Procedure on a parity of reasoning must also be lacking
But this Court in Ramachandra Parsad vs State of Bihar  unheld the transfer of a case by the High Court which took it to a special judge who had no jurisdiction in the area where the offence was committed
In holding that the transfer was valid this Court relied upon the third sub section of Section 8 of the Act
That sub section preserves the application of any provision of the Code of Criminal Procedure it it is not 128 inconsistent with the Act save as provided in the first two sub sections of that section
The question therefore resolves itself to this Is there an inconsistency between section 527 of the Code and the second sub section of section 7 The answer is that there is none
Apparently this Court in the earlier case found no inconsistency and the reasons appear to be there The condition that an offence specified in section 62 shall be tried by a special Judge for the area within which it is committed merely specifies which of several special Judges appointed in the State by the State Government shall try it
The provision is analogous to others under which the jurisdiction of Magistrates and Sessions Judges is deter mined on a territorial basis
Enactments in the Code of Criminal Procedure intended to confer territorial jurisdiction upon courts and Presiding officers have never been held to stand in the way of transfer of criminal cases outside those areas of territorial jurisdiction
The order of transfer when it is made under the powers given by the Code invests another officer with jurisdiction although ordinarily he would lack territorial jurisdiction to try the case
The order of this Court therefore which transfers a case from one special Judge subordinate to one High Court to another special Judge subordinate to another High Court creates jurisdiction in the latter in much the same way as the transfer by the High Court from one Sessions Judge in a Session Division to another Sessions Judge in another Sessions Division
There is no comparison between the first sub section and the second sub section of Section 7
The condition in the second sub section of section 7 is not of the same character as the condition in the first sub section
The first sub section creates a condition which is a sine qua non for the trial of certain offences
That condition is that the trial must be before a special Judge
The second sub section distributes the work between special Judges and lays emphasis on the fact that trial must be before a special Judge appointed for the area in which the offence is committed
This second condition is on a par with the distribution of work territorially between different Sessions Judges and Magistrates
An order of transfer by the very nature of things must some times result in taking the case out of the territory and the provisions of the Code which are preserved by the third sub 129 section of section 8 must supervene to enable this to be done and the second sub section of section 7 must yield
We do not consider that this creates any inconsistency because the territorial jurisdiction created by the second sub section of section 7 operates in a different sphere and under different circumstances
Inconsistency can only be found if two provisions of law apply in identical circumstances and create contradictions
Such a situation does not arise when either this Court or the High Court exercises its powers of transfer
We are accordingly of the opinion that the Supreme Court in exercise of its jurisdiction and power under section 527 of the Code of Criminal Procedure can transfer a case from a Special Judge subordinate to the High Court to another special Judge subordinate to another High Court  emphasis added 10
The attempt of Sri Jethmalani is to bring the present case within the scope of the observations contained in the latter part of the extract set out above
He submits that a special judge except insofar as a specific provision to the contrary is made is a court subordinate to the High Court as explained in  at pages 943 4 and proceedings before him are subject to the provisions of the 1973 Cr
PC the field of operation of the first sub section of section 7 is merely to earmark certain Sessions Judges for purposes of trying cases of corruption by public servants and this provision is in principle not different from the earmarking of cases on the basis of territorial jurisdiction dealt with by sub section 2 of section 7
The argument is no doubt a plausible one
It does look somewhat odd to say that a Sessions Judge can but a High Court Judge cannot try an offence under the Act
The object of the Act as rightly pointed out by counsel is only to segregate certain cases to special courts which will concentrate on such cases so as to expedite their disposal and not to oust the superior jurisdiction of the High Court or its powers of superintendencet over subordinate courts under article 227 of the Constitution an aspect only of which is reflected in section 407 of the Cr
PC However were the matter to be considered as res integra I would be inclined to accept the contention urged on behalf of the appellant for the following reasons
In the first place the argument of the counsel for the respondent runs counter to the observations made by the Supreme Court in the earlier part of the extract set out above that the first sub section of section 7 and the second sub section are totally different in character
The first sub section deals with a sine qua non for the trial of certain offences whereas the second sub section is only of a pro 130 cedural nature earmarking territorial jurisdiction among persons competent to try the offence
They are therefore vitally different in nature
The Supreme Court has clearly held in the passage extracted above that the case can be transferred only from one special judge to another
In other words while the requirement of territorial jurisdiction is subordinate to section 406 or 407 the requirement that the trial should be by a special judge is not
It is true that those observations are not binding on this larger Bench and moreover the Supreme Court there was dealing only with an objection based on sub section 2 of Section 7
It is however clear that the Bench even if it had accepted the transfer petition of Gurcharan Das Chadha would have rejected a prayer to transfer the case to a court other than that of a Special Judge appointed by the transferee State
I am in respectful agreement with the view taken in that case that there is a vital qualitative difference between the two sub sections and that while a case can be transferred to a special judge who may not have the ordinary territorial jurisdiction over it a transfer cannot be made to an ordinary magistrate or a court of session even if it has territorial jurisdiction
If the contention of the learned counsel for the respondent that section 71 and section 407 operate in different fields and are not inconsistent with each other were right it should be logically possible to say that the High Court can under section 407 transfer a case from a special judge to any other Court of Session
But such a conclusion would be clearly repugnant to the scheme of the 1952 Act and plainly incorrect
It is therefore difficult to accept the argument of Sri Jethmalani that we should place the restriction contained in the first sub section of section 7 also as being on the same footing as that in the second sub section and hold that the power of transfer contained in the Criminal Procedure Code can be availed of to transfer a case from a Special Judge to any other criminal court or even the High Court
The case can be transferred only from one special judge to another special judge it cannot be transferred even to a High Court Judge except where a High Court Judge is appointed as a Special Judge
A power of transfer postulates that the court to which transfer or withdrawal is sought is competent to exercise jurisdiction over the case
vide Raja Soap Factory vs Shantaraj  11
This view also derives support from two provisions of section 407 itself
The first is this
Even when a case is transferred from one criminal court to another the restriction as to territorial jurisdiction may be infringed
To obviate a contention based on lack of territorial jurisdiction in the transferee court in such a case clause ii of section 407 provides that the order of transfer will prevail lack of jurisdiction 131 under Ss 177 to 185 of the Code notwithstanding
The second difficulty arises even under the Cr
PC itself by virtue of section 197 which not only places restriction on the institution of certain prosecutions against public servants without Government sanction but also empowers the Government inter alia to determine the court before which such trial is to be conducted
When the forum of such a trial is transferred under section 407 an objection may be taken to the continuance of the trial by the transferee court based on the order passed under section 197
This eventuality is provided against by section 4079 of the Act which porvides that nothing in section 407 shall be deemed to affect an order passed under section 407
Although specifically providing for these contingencies the section is silent in so far as a transfer from the court of a Special Judge under the 1952 Act is concerned though it is a much later enactment
On the contrary the language of section 71 of the 1952 Act places a definite hurdle in the way of construing section 407 of the Cr
PC as overriding its provisions
For it opens with the words Notwithstanding anything contained in the Code of Criminal Procedure 1898 or in any other law
In view of this non obstanti clause also it becomes difficult to hold that the provisions of section 407 of the 1973 Cr
PC will override or even operate consistently with the provisions of the 1952 Act
For the same reason it is not possible to hold that the power of transfer contained in clause 29 of the Letters Patent of the Bombay High Court can be exercised in a manner not contemplated by section 71 of the 1952 Act
Thirdly whatever may be the position where a case is transferred from one special judge to another or from one ordinary subordirate criminal court to another of equal or superior jurisdiction the withdrawal of a case by the High Court from such a Court to itself for trial places certain handicaps on the accused
It is true that the court to which the case has been transferred is a superior court and in fact the High Court
Unfortunately however the high Court judge is not a person to whom the trial of the case can be assigned under section 71 of the 1952 Act
As pointed out by the Supreme Court in Surajmal Mohta vs Viswanatha Sastry  at pp
464 in a slightly different context the circumstance that a much superior forum is assigned to try a case than the one normally available cannot by itself be treated as a sufficient safeguard and a good substitute for the 132 normal forum and the rights available under the normal procedure
The accused here loses his right of coming up in revision or appeal to the High Court from the interlocutory and final orders of the trial court
He loses the right of having two courts a subordinate court and the High Court adjudicate upon his contentions before bringing the matter up in the Supreme Court
Though as is pointed out later these are not such handicaps as violate the fundamental rights of such an accused they are circumstances which create prejudice to the accused and may not be overlooked in adopting one construction of the statute in preference to the other
Sri Jethmalani vehemently contended that the construction of section 407 sought for by the appellant is totally opposed to well settled canons of statutory construction
He urged that the provisions of the 1952 Act should be interpreted in the light of the objects it sought to achieve and its amplitude should not be extended beyond its limited objective
He said that a construction of the Act which leads to repugnancy with or entails pro tanto repeal of the basic criminal procedural law and seeks to divest jurisdiction vested in a superior court should be avoided
These aspects have been considered earlier
The 1952 Act sought to expedite the trial of cases involving public servants by the creation of courts presided over by experienced special judges to be appointed by the State Government
There is however nothing implausible in saying that the Act having already earmarked these cases for trial by experienced Sessions Judges made this provision immune against the applicability of the provisions of other laws in general and the Cr
PC in particular
Effect is only being given to these express and specific words used in section 71 and no question arises of any construction being encouraged that is repugnant to the Cr
PC Or involves an implied repeal pro tanto of its provisions
As has already been pointed out if the requirement in section 71 were held to be subordinate to the provisions contained in section 406 7 then in principle even a case falling under the 1952 Act can be transferred to any other Sessions Judge and that would defeat the whole purpose of the Act and is clearly not envisaged by it
Supreme Court s power of transfer 15
It will have been noticed that the power of transfer under section 407 or cl 29 of the Letters Patent which has been discussed above is a power vested in the High Court
So the question will arise whether even assuming that the High Court could have exercised such power the Supreme Court could have done so
On behalf of the 133 respondent it was contended that as the power of the High Court under section 407 can be exercised on application of a party or even suo motu and can be exercised by it at any stage irrespective of whether any application or matter in connection with the case is pending before it or not the Supreme Court as an appellate Court has a co equal jurisdiction to exercise the power of transfer in the same manner as the High Court could
In any event the Supreme Court could exercise the power as one incidental or ancillary to the power of disposing of a revision or appeal before it
The appellants however contend that as the power of the Supreme Court to order transfer of cases has been specifically provided for in section 406 and would normally exclude cases of intra state transfer covered by section 407 of the Code the statute should not be so construed as to imply a power of the Supreme Court in appeal or revision to transfer a case from a subordinate court to the High Court
The argument also is that what the Supreme Court as an appellate or revisional court could have done was either a to direct the High Court to consider whether this was a fit case for it to exercise its power under section 4071iv to withdraw the case to itself and try the same with a view to expeditiously dispose it of or b to have withdrawn the case to itself for trial
But it is contended no power which the Supreme Court could exercise as an appellate or revisional court could have enabled the Supreme Court to transfer the case from the Special Judge to the High Court
Here also the contentions of both parties are nicely balanced but I am inclined to think that had the matter been res integra and directions for transfer were being sought before us for the first time this Court would have hesitated to issue such a direction and may at best have left it to the High Court to consider the matter and exercise its own discretion
As already pointed out the powers of the Supreme Court to transfer cases from one court to another are to be found in Article 139 A of the Constitution and section 406 of the Cr
The provisions envisaged either inter state transfers of cases ie from a court in one State to a court in another State or the withdrawal of a case by the Supreme Court to itself
Intra State transfer among courts subordinate to a High Court inter se or from a court subordinate to a High Court to the High Court is within the jurisdiction of the appropriate High Court
The attempt of counsel for the resondent is to justify the transfer by attributing the powers of the High Court under section 407 to the Supreme Court in its capacity as an appellate or revisional court
This argument overlooks that the powers of the Supreme Court in disposing of an appeal or revision are circumscribed by the scope of the proceedings before it
In this 134 case it is common ground that the question of transfer was not put in issue before the Supreme Court
The reliance placed in this context on the provisions contained in articles 140 and 142 of the Constitution and section 401 read with section 386 of the Cr
PC does not also help
Article 140 is only a provisions enabling Parliament to confer supplementary powers on the Supreme Court to enable it to deal more effectively to exercise the jurisdication conferred on it by or under the Constitution
Article 142 is also not of much assistance
In the first place the operative words in that article again are in the exercise of its jurisdiction
 The Supreme Court was hearing an appeal from the order of discharge and connected matters
There was no issue or controversy or discussion before it as to the comparative merits of a trial before a special judge vis a vis one before the High Court
There was only an oral request said to have been made admittedly after the judgment was announced
Wide as the powers under article 141 are they do not in my view envisage an order of the type presently in question
The Nanavati case   to which reference was made by Sri Jethmalani involved a totally different type of situation
Secondly it is one of the contentions of the appellant that an order of this type far from being necessary for doing complete justice in the cause or matter pending before the Court has actually resulted in injustice an aspect discussed a little later
Thirdly however wide and plenary the language of the article the directions given by the Court should not be inconsistent with repugnant to or in violation of the specific provisions of any statute
If the provisions of the 1952 Act read with article 139 A and Ss406 407 of the Cr
PC do not permit the transfer of the case from a special judge to the High Court that effect cannot be achieved indirectly
it is therefore difficult to say in the circumstances of the case that the Supreme Court can issue the impugned direction in exercise of the powers under Article 142 or under section 407 available to it as an appellate court
Learned counsel for the complainant also sought to support the order of transfer by reference to section 386 and 401 of the 1973 Cr
PC He suggested that the Court having set aside the order of discharge had necessarily to think about consequential orders and that such directions as were issued are fully justified by the above provisions
He relied in this context on the decision of the Privy Council in Hari vs Emperor AIR 1935 PC122
It is difficult to accept this argument
Section 401 provides that in the revision pending before it the High Court can exercise any of the powers conferred on a 135 court of appeal under section 386
Section 386 dealing with the powers of the appellate court enables the court in a case such as this i under clause a to alter or reverse the order under appealrevision or ii under clause e to make any amendment or any consequential or incidental order that may be just or proper
The decision relied on by counsel Hari vs Emperor AIR 1935 PC 122 is of no assistance to him
In that case the Additional Judicial Commissioner who heard an appeal on a difference of opinion between two other judicial commissioner had come to the conclusion that the conviction had to be set aside
Then he had the duty to determine what should be done and section 426 of the 1898 Cr
PC corresponding to section 386 of the 1973 CrPC exactly provided for the situation and empowered him to reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction subordinate to such apellate Court
 In the present case the Special Judge
Sri Sule had discharged the accused because of his conclusion that the prosecution lacked the necessary sanction
The conclusion of the Supreme Court that this conclusion was wrong meant automatically that the prosecution had been properly initiated and that the proceedings before the Special Judge should go on
The direction that the trial should be shifted to the High Court can hardly be described as a consequential or incidental order
Such a direction did not flow as a necessary consequence of the conclusion of the court on the issues and points debated before it
I am therefore inclined to agree with counsel for the appellant that this Court was in error when it directed that the trial of the case should be before a High Court Judge
It follows from the above discussion that the appellant in consequence of the impugned direction is being tried by a Court which has no jurisdiction and which cannot be empowered by the Supreme Court to try him
The continued trial before the High Court therefore infringes Article 21 of the Constitution
Denial of equality and violation of Article 21
It was vehemently contended for the appellant that by giving the impugned direction this Court has deprived the appellant of his fundamental rights
He has been denied a right to equality 136 inasmuch as his case has been singled out for trial by a different though higher forum as compared to other public servants
His fundamental right under Article 21 it is said has been violated inasmuch as the direction has deprived him of a right of revision and first appeal to the High Court which he would have had from an order or sentence had he been tried by a Special Judge and it is doubtful whether he would have a right to appeal to this Court at all
It is pointed out that a right of first appeal against a conviction in a criminal case has been held by this Court to be a part of the fundamental right guaranteed under Article 21 of the Constitution
It is not necessary for me to consider these arguments in view of my conclusion that the High Court could not have been directed to try the petitioner s case
I would however like to say that in my opinion the arguments based on Articles 14 and 21 cannot be accepted in case it is to be held for any reason that the transfer of the apellant s case to the High Court was valid and within the competence of this Court
I say this for the following reason If the argument is to be accepted it will be appreciated it cannot be confined to cases of transfer to the High Court of cases under the 1952 Act but would also be equally valid to impugn the withdrawal of a criminal case tried in the normal course under the Cr
PC from a subordinate court trying it to the High Court by invoking the powers under section 407
To put it in other words the argument in substance assails the validity of secion 407 of the 1973 Cr
In my opinion this attack has to be repelled
The section cannot be challenged under Article 14 as it is based on a reasonable classification having relation to the objects sought to be achieved
Though in general the trial of cases will be by courts having the normal jurisdiction over them the exigencies of the situation may require that they be dealt with by some other court for various reasons
Likewise the nature of a case the nature of issues involved and other circumstances may render it more expedient effective expeditious or desirable that the case should be tried by a superior court or the High Court itself
The power of transfer and withdrawal contained in section 407 of the Cr
PC is one dictated by the requirements of justice and is indeed but an aspect of the supervisory powers of a superior court over courts subordinate to it see also sections 408 to 411 of the CrPC
A judicial discretion to transfer or withdraw is vested in the highest court of the State and is made exercisable only in the circumstances set out in the section
Such a power is not only necessary and desirable but indispensable in the cause of the administration of justice
The accused will continue to be tried by a court of equal or superior jurisdiction
Section 4078 read with section 474 of the Cr
PC and section 83 of the 1952 Act makes it clear that he will be 137 tried in accordance with the procedure followed by the original Court or ordinarily by a Court of Session
The accused will therefore suffer no prejudice by reason of the application of section 407
Even if there is a differential treatment which causes prejudice it is based on logical and acceptable considerations with a view to promote the interest of justice
The transfer or withdrawal of a case to another court or the High Court in such circumstances can hardly be said to result in hostile discrimination against the accused in such a case
Considerable reliance was placed on behalf of the appellant on State vs Anwar Ali Sarkar  This decision seems to have influenced the learned judges before whom this appeal first came up for hearing in referring the matter to this larger Bench and has also been aplied to the facts and situation here by my learned brother Sabyasachi Mukharji J
But it seems to me that the said decision has no relevance here
There the category of cases which were to be allocated to a Special Judge were not well defined the selection of cases was to be made by the executive and the procedure to be followed by the special courts was different from the normal criminal procedure
As already pointed out the position here is entirely different
The 1952 legislation has been enacted to give effect to the Tek Chand Committee and to remedy a state of affairs prevalent in respect of a well defined class of offences and its provisions constituting special judges to try offences of corruption is not under challenge
Only a power of transfer is being exercised by the Supreme Court which is sought to be traced back to the power of the High Court under section 407
The vires of that provision also is not being challenged
What is perhaps being said is that the Supreme Court ought not to have considered this case a fit one for withdrawal for trial to the High Court
That plea should be and is being considered here on merits but the plea that Article 14 has been violated by the exercise of a power under section 407 on the strength of Anwar Ali Sarkar s case wholly appears to be untenable
Reference may be made in this context to Kathi Raning Rawat vs The State of Saurashtra and Re Special Courts Bill 1978 and Shukla vs Delhi Administration   which have upheld the creation of special judges to try certain classes of offences
It may be convenient at this place to refer to certain observations by the Bench of this Court while referring this matter to the larger Bench in a note appended to their order on this aspect
The learned Judges have posed the following questions in paragraphs 4 and 6 of their note 138 4
The Criminal Law Amendment Act 1952 as its preamble says is passed to provide for speedier trial Does not further speeding up of the case by transferring the case to the High Court for speedy disposal violate the principle laid down by seven learned Judges of this Court in Anwar Ali Sarkar s case  and result in violation of Article 14 of the Constitution The following observations of Vivian Bose J in Anwar Ali Sarkar s case at pages 366 387 of the Report are relevant Tested in the light of these considerations I am of opinion that the whole of the West Bengal Special Courts Act of 1950 offends the provisions of Article 14 and is therefore bad
When the froth and the foam of discussion is cleared away and learned dialectics placed on one side we reach at last the human element which to my mind is the most important of all
We find men accused of heinous crimes called upon to answer for their lives and liberties
We find them picked out from their fellows and however much the new procedure may give them a few crumbs of advantage in the bulk they are deprived of substantial and valuable privileges of defence which others similarly charged are able to claim
It matters not to me nor indeed to them and their families and their friends whether this be done in good faith whether it be done for the convenience of government whether the process can be scientifically classified and labelled or whether it is an experiment in speedier trials made for the good of society at large
It matters now how lofty and laudable the motives are
The question with which I charge myself is can fair minded reasonable unbiassed and resolute men who are not swayed by emotion or prejudice regard this with equanimity and call it reasonable just and fair regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today I have but one answer to that
On that short and simple ground I would decide this case and hold the Act bad  Underlining by us Do not the above observations apply to judicial orders also 139 6
Does the degree of heinousness of the crime with which an accused is charged or his status or the influence that he commands in society have any bearing on the applicability or the constriction of Article 14 or Article 21 23
In my opinion the answers to the questions posed will again depend on whether the impugned direction can be brought within the scope of section 407 of the 1973 Cr
PC Or not
If I am right in my conclusion that it cannot the direction will clearly be contrary to the provisions of the Cr
PC and hence violative of Article 21
It could also perhaps be said to be discriminatory on the ground that in the absence of not only a statutory provision but even any well defined policy or criteria the only two reasons given in the order namely the status of the petitioner and delay in the progress of the trial are inadequate to justify the special treatment meted out to the appellant
On the other hand if the provisions of section 407 Cr
PC are applicable the direction will be in consonance with a procedure prescribed by law and hence safe from attack as violative of Article 21
The reasons given in the context of the developments in the case can also be sought to be justified in terms of clauses a b or c of Section 4071
In such an event the direction will not amount to an arbitrary discrimination but can be justified as the exercise of a choice of courses permitted under a valid statutory classification intended to serve a public purpose
The argument of infringment of article 21 is based essentially on the premise that the accused will be deprived in cases where the trial is withdrawn to the High Court of a right of first appeal
This fear is entirely unfounded
I think Sri Jethmalani is right in contending that where a case is thus withdrawn and tried by the Court the High Court will be conducting the trial in the exercise of its extraordinary original criminal jurisdiction
As pointed out by Sabyasachi Mukharji J the old Presidency town High Courts once exercised original jurisdiction in criminal matters but this has since been abolished
One possible view is that now all original criminal jurisdiction exercised by High Court is only extraordinary original criminal jurisdiction
Another possible view is that still High Courts do exercise ordinary original criminal jurisdiction in habeas corpus and contempt of court matters and also under some specific enactments eg Companies  Act Ss 454 and 633
They can be properly described as exercising extraordinary original criminal jurisdiction where though the ordinary original criminal jurisdiction is vested in a subordinate criminal court or special Judge a case is withdrawn by the High Court to itself for trial
The 140 decision in Madura Tirupparankundram etc
vs Nikhan Sahib  Kavasji Pestonji vs Rustomji Sorabji AIR 1949 Bombay 42 Sunil Chandra Roy and another vs The State AIR 1954 Calcutta 305 People s Insurance Co Ltd vs Sardul Singh Caveeshar and others AIR 1961 Punjab 87 and People s Patriotic Front vs KK Birla and others 1984 Crl LJ 
545 cited by him amply support this contention
If this be so then Sri Jethmalani is also right in saying that a right of first appeal to the Supreme Court against the order passed by the High Court will be available to the accused under section 374 of the 1973 Cr
In other words in the ordinary run of criminal cases tried by a Court of Sessions the accused will be tried in the first instance by a court subordinate to the High Court he will then have a right of first appeal to the High Court and then can seek leave of the Supreme Court to appeal to it under Article 136
In the case of a withdrawn case the accused has the privilege of being tried in the first instance by the High Court itself with a right to approach the apex Court by way of appeal
The apprehension that the judgment in the trial by the High Court in the latter case will be final with only a chance of obtaining special leave under article 136 is totally unfounded
There is also some force in the submission of Sri Jethmalani that if that really be the position and the appellant had no right of appeal against the High Court s judgment the Supreme Court will consider any petition presented under Article 136 in the light of the inbuilt requirements of Article 21 and dispose of it as if it were itself a petition of appeal from the judgment
see in this context the observations of this Court in Sadananthan vs Arunachalam That apart it may be pointed out this is also an argument that would be valid in respect even of ordinary criminal trials withdrawn to the High Court under section 407 of the Cr
PC and thus like the previous argument regarding Article 14 indirectly challenges the validity of S407 itself as infringing Article 21
For the reasons discussed I have come to the conclusion that an accused tried directly by the High Court by withdrawal of his case from a subordinate court has a right of appeal to the Supreme Court under section 374 of the Cr
The allegation of an infringement of Article 2 1 in such cases is
therefore
unfounded
Natural Justice 25
The appellant s contention that the impugned direction is sued by this Court on 1621984 was in violation of the principles of natural justice appears to be well founded
It is really not in dispute before us that there was no whisper or suggestion in the proceedings before this Court that the venue of the trial should be shifted to the High Court
This direction was issued suo motu by the learned Judges without putting it to the counsel for the parties that this was what they 141 proposed to do
The difficulties created by observations or directions on issues not debated before the Court have been highlighted by Lord Diplock in Hadmor Productions Ltd vs Hamilton In that case Lord Denning in the Court of Appeal had in his judgment relied on a certain passage from the speech of Lord Wedderburn in Parliament as reported in Hansard Parliamentary Reports in support of the view taken by him
The counsel for the parties had had no inkling or information that recourse was likely to be had by the Judge to this source as it had been authoritatively held by the House of Lords in Davis vs Johns  that these reports should not be referred to by counsel or relied upon by the court for any purpose
Commenting on this aspect Lord Diplock observed Under our adversary system of procedure for a judge to disregard the rule by which counsel are bound has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice the right of each to be informed of any point adverse to him that is going to be relied upon by the judge and to be given an opportunity of stating what his answer to it is
In the instant case counsel for Hamilton and Bould complained that Lord Denning MR had selected one speech alone to rely upon out of many that had been made  and that if he has counsel had known that Lord Denning was going to do that not only would he have wished to criticise what Lord Wedderburn had said in his speech   but he would also have wished to rely on other speeches disagreeing with Lord Wedderburn if he as counsel had been entitled to refer to Hansard   The position is somewhat worse in the present case
Unlike the Hamilton case supra where the Judge had only used Hansard to deal with an issue that arose in the appeal the direction in the present case was something totally alien to the scope of the appeal on an issue that was neither raised nor debated in the course of the hearing and completely unexpected
Shri Jethmalani submitted that when the judgment was announced counsel for the complainant present respondent had made an oral request that the trial be transferred to the High Court and that the Judges replied that they had already done that
He submitted that at that time and subsequently the appellant could have protested and put forward his objections but did not and had thus 142 acquiesced in a direction which was in truth beneficial to him as this Court had only directed that he should be tried by a High Court Judge a direction against which no one can reasonably complain
This aspect of the respondent s arguments will be dealt with later but for the present all that is necessary is to say that the direction must have come as a surprise to the appellant and had been issued without hearing him on the course proposed to be adopted
Conclusion 27
To sum up my conclusion on issue A is that the direction issued by the Court was not warranted in law being contrary to the special provisions of the 1952 Act
was also not in conformity with the principles of natural justice and that unless the direction can be justified with reference to section 407 of the Cr PC the petitioner s fundamental rights under Articles 14 and 21 can be said to have been infringed by reason of this direction
This takes me on to the question whether it follows as a consequence that the direction issued can be or should be recalled annulled revoked or set aside by us now
B CAN AND SHOULD THE DIRECTION OF 16284 BE RECALLED 28
It will be appreciated that whatever may be the ultimate conclusion on the correctness propriety or otherwise of the Court s direction dated 1621984 that was a direction given by this Court in a proceeding between the same parties and the important and farreaching question that falls for consideration is whether it is at all open to the appellant to seek to challenge the correctness of that direction at a later stage of the same trial
Is a review possible 29
The first thought that would occur to any one who seeks a modification of an order of this Court particularly on the ground that it contained a direction regarding which he had not been heard would be to seek a review of that order under Article 137 of the Constitution read with the relevant rules
Realising that this would be a direct and straight forward remedy it was contended for the appellant that the present appeal may be treated as an application for such review
The power of review is conferred on this Court by Article 137 of the Constitution which reads thus 143 Subject to the provisions of any law made by Parliament or any rules made under Article 145 the Supreme Court shall have power to review any judgment pronounced or order made by it
 It is subject not only to the provisions of any law made by Parliament and there is no such law so far framed but also to any rules made by this Court under Article 145
This Court has made rules in pursuance of article 145 which are contained in order XL in Part VIII of the Supreme Court Rules
Three of these rules are relevant for our present purposes
They read as follows 1 The Court may review its judgment or order but no appliction for review will be entertained in a civil proceeding except on the ground mentioned in order XLVII rule 1 of the Code and in a criminal proceeding except on the ground of an error apparent on the face of the record
Z An application for review shall be by a petition
and shall be filed within thirty days from the date of the judgment or order sought to be reviewed
It shall set out clearly its grounds for review
3 Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments but the petitioner may supplement his petition by additional written arguments
The court may either dismiss the petition or direct notice to the opposite party
An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed
It is contended on behalf of the respondent that the present pleas of the appellant cannot be treated as an application for review firstly because they do not seek to rectify any error apparent on the face of the record secondly because the prayer is being made after the expiry of the period of thirty days mentioned in rule 2 and there is no sufficient cause for condoning the delay in the making of the application and thirdly for the reason that a review petition has to be listed as far as practicable before the same Judge or Bench of Judges that delivered the order sought to be reviewed and in this case at least two of the learned Judges who passed the order on 1621984 are still available to consider the application for review
These grounds may now be considered
144 32
For reasons which I shall later discuss I am of opinion that the order dated 1621984 does not suffer from any error apparent on the face of the record which can be rectified on a review application
So far as the second point is concerned it is common ground that the prayer for review has been made beyond the period mentioned in Rule 2 of order XL of the Supreme Court Rules
No doubt this Court has power to extend the time within which a review petition may be filed but learned counsel for the respondent vehemently contended that this is not a fit case for exercising the power of condonation of delay
It is urged that far from this being a fit case for the entertainment of the application for review beyond the time prescribed the history of the case will show that the petitioner has deliberately avoided filing a review petition within the time prescribed for reasons best known to himself 
In support of his contention learned counsel for the respondent invited our attention to the following sequence of events and made the following points a The order of this Court was passed on 1621984
At the time of the pronouncement of the said order counsel for the present respondent had made a request that the trial of the case may be shifted to the High Court and the Court had observed that a direction to this effect had been included in the judgment
Even assuming that there had been no issues raised and no arguments advanced on the question of transfer at the time of the hearing of the appeals there was nothing to preclude the counsel for the appellant when the counsel for the complainant made the above request from contending that it should not be done or at least that it should not be done without further hearing him and pointing out this was not a matter which had been debated at the hearing of the appeal
But no the counsel for the accused chose to remain quiet and did not raise any objection at that point of time
He could have filed a review application soon thereafter but he did not do so
Perhaps he considered at that stage that the order which after all enabled him to be tried by a High Court Judge in preference to a Special Judge was favourable to him and therefore he did not choose to object
b The matter came up before the trial judge on 13th March 1984
The accused who appeared in person stated that he 145 did not want to engage any counsel at least for the present 
A He would not put down his arguments in writing and when he argued the gravemen of his attack was that this Court s order transferring the trial from the Special Judge to the High Court was wrong on merits
Naturally the learned Judge found it difficult to accept the contention that he should go behind the order of the Supreme Court
He rightly pointed out that if the accused had any grievance to make his proper remedy was to move the Supreme Court for review of its judgment or for such further directions or clarifications as may be expedient
Thus as early as 13th March 1984 Khatri J had given a specific opportunity to the accused to come to this Court and seek a review of the direction
it can perhaps be said that on 1621984 when this Court passed the impugned direction the appellant was not fully conscious of the impact of the said direction and that therefore he did not object to it immediately
But by the 13th March 1984 he had ample time to think about the matter and to consult his counsel
The appellant himself was a barrister
He chose not to engage counsel but to argue himself and even after the trial court specifically pointed out to him that it was bound by the direction of this Court under articles 141 and 144 of the Constitution and that if at all his remedy was to go to the Supreme Court by way of review or by way of an application for clarification he chose to take no action thereon
c on 16th March 1984 Khatri J disposed of the preliminary objections raised by the accused challenging the jurisdiction and competence of this Court to try the accused
Counsel for the respondent points out that at the time of the hearing the appellant had urged before Khatri J all the objections to the trial which he is now putting forth
These objections have been summarised in paragraph 3 of the order passed by the learned Judge and each one of them has been dealt with elaborately by the learned Judge
It has been pointed out by him that the Supreme Court was considering not only the appeals preferred by the accused and the complainant namely Crl
Appeal Nos
246 247 and 356 of 1983 but also two revision petitions being CR Nos 354 and 359 of 1983 which had been withdrawn by the Supreme Court to itself for disposal along with Crl
Appeal No 356 of 1983
A little later in the order the learned Judge pointed out that even 146 assuming that in the first instance the trial can be conducted only by a Special Judge the proceedings could be withdrawn by the high Court to itself under powers vested in it under Article 228a of the Constitution as well as section 407 of the Cr
When the criminal revisions stood transferred to the Supreme Court this was obviously done under Article 139 A though that article is not specifically mentioned in the judgment of the Supreme Court the Supreme Court could pass the order under Article 139 A read with Article 142
The learned Judge also disposed of the objections based on Article 21
He pointed out that as against an ordinary accused person tried by a special judge who gets a right of appeal to the High Court a court of superior jurisdiction with a further right of appeal to the Supreme Court under section 374 of the Cr
PC and that an order of transfer passed in the interest of expeditious disposal of a trial was primarily in the interests of the accused and could hardly be said to be pre judicial to the accused
Despite the very careful and fully detailed reasons passed by the High Court the appellant did not choose to seek a review of the earlier direction
d Against the order of the learned Judge dated 1631984 the complainant came to the Court because he was dissatisfied with certain observations made by the trial Judge in regard to the procedure to be followed by the High Court in proceeding with the trial
This matter was heard in open court by same five learned Judges who had disposed of the matter earlier on 1621984
The accused was represented by a senior counsel and the Government of Maharashtra had also engaged a senior counsel to represent its case
Even at this hearing the counsel for the appellant did not choose to raise any objection against the direction given in the order dated 1621984
The appeal before the Supreme Court was for getting a clarification of the very order dated 1621984
This was a golden opportunity for the appellant also to seek a review or clarification of the impugned direction if really he had a grievance that he had not been heard by the Court before it issued the direction and that it was also contrary to the provisions of the 1952 Act as well as violative of the rights of the accused under article 21 of the Constitution
e The petitioner instead filed two special leave petitions and a writ petition against the orders of Khatri
J dated 1331984 147 and 1631984
In the writ petition the petitioner had mentioned that the impugned direction had been issued without hearing him
In these matters counsel for the accused made both oral and written submissions and all contentions and arguments which have now been put forward had been raised in the written arguments
The appeals and writ petition were disposed of by this Court
This Court naturally dismissed the special leave petitions pointing out that the High Court was quite correct in considering itself bound by the directions of the Court
The Court also dismissed the writ petition as without merit
But once again it observed that the proper remedy of the petitioner was elsewhere and not by way of a writ petition
These two orders according to the learned counsel for the respondent conclude the matter against the appellant
The dismissal of the writ petition reminded the petitioner of his right to move the Court by other means and though this advice was tendered as early as 1741984 the petitioner did nothing
So far as the special leave petition was concerned its dismissal meant the affirmation in full of the decision given by Justice Khatri dismissing and disposing of all the objections raised by the petitioner before him
Whatever may have been the position on 1621984 or 1631984 there was absolutely no explanation or justification for the conduct of the petitioner in failing to file an application for review between 1741984 and october 1986
Recounting the above history which according to him fully explained the attitude of the accused learned counsel for the respondent submitted that in his view the appellant was obviously trying to avoid a review petition perhaps because it was likely to go before the same learned Judges and he did not think that he would get any relief and perhaps also because he might have felt that a review was not an adequate remedy for him as under the rules it would be disposed of in chamber without hearing him once again
But whatever may be the reason it is submitted the delay between April 1984 and october 1986 stood totally unexplained and even now there was no proper review petition before this Court
In the circumstances it is urged that this present belated prayer for review
There is substance in these contentions
The prayer for review is being made very belatedly and having regard to the circumstances outlined above there is hardly any reason to condone the 148 delay in the prayer for review
The appellant was alive to all his present contentions as is seen from the papers in the writ petition
At least when the writ petition was dismissed as an inappropriate remedy he should have at once moved this Court for review
The delay from April 1984 to october 1986 is totally inexplicable
That apart there is also validity in the respondent s contention that
even if we are inclined to condone the delay the application will have to be heard as far as possible by the same learned Judges who disposed of the earlier matter
In other words that application will have to be heard by a Bench which includes the two learned Judges who disposed of the appeal on 1621984 and who are still available in this Court to deal with any proper review application that may be filed
However since in my view the delay has not been satisfactorily explained I am of opinion that the prayer of the appellant that the present pleas may be treated as one in the nature of a review application and the appellant given relief on that basis has to be rejected
Is a writ maintainable 36
This takes one to a consideration of the second line of attack by the appellant s counsel
His proposition was that a judicial order of a court even the High Court or this Court may breach the principles of natural justice or the fundamental rights and that if it does so it can be quashed by this Court in the exercise of its jurisdiction under Article 32
In other words the plea would seem to be that the present proceedings may be treated as in the nature of a writ petition to quash the impugned order on the above ground
The earliest of the cases relied upon to support this contention is the decision in Prem Chand Garg vs Excise Commissioner 1963 Supp 1 SCR 885 which may perhaps be described as the sheet anchor of the appellant s contentions on this point
The facts of that case have been set out in the judgment of Sabyasachi Mukharji J and need not be repeated
The case was heard by a Bench of five judges
Four of them speaking through Gajendragadkar J held that Rule 12 of order XXXV of the Supreme Court Rules violated Article 32 and declared it invalid
This also set aside an earlier order dated 12121961 passed by the Court in pursuance of the rule calling upon the petitioner to deposit cash security
Sri Rao contended that this case involved two separate issues for consideration by the Court a the validity of the rule and b the validity of the order dated 12121961 and that the decision is authority not only for the proposition that a writ petition under Article 32 could be filed to Impugn the constitutional validity of a rule but also for the proposition that the Court could entertain a writ petition to set aside a judicial 149 Order passed by the Court earlier on discovering that it is inconsistent with the fundamental rights of the petitioner
Counsel submitted that an impression in the minds of some persons that the decision in Prem Chand Garg is not good law after the decision of the nine Judge Bench in Naresh Sridhar Mirajkar vs State 19663 SCR 744 is incorrect
He submitted that far from Garg s case being overruled it has been confirmed in the later case
Mirajkar was a case in which the validity of an interlocutory order passed by a judge of the Bombay High Court pertaining to the publication of reports of the proceedings in a suit pending before him was challenged by a journalist as violating his fundamental rights under Article 19 of the Constitution
The matter came to the Supreme Court by way of a writ petition under Article 32
The validity of the order was upheld by the majority of the Judges while Hidayatullah J dissented
In this connection it is necessary to refer to a passage at p 767 in the judgment of Gajendragadkar CJ Mr Setalvad has conceded that if a court of competent jurisdiction makes an order in a proceeding before it and the order is inter partes its validity cannot be challenged by invoking the jurisdiction of this Court under article 32 though the said order may affect the aggrieved party s fundamental rights
His whole argument before us has been that the impugned order affects the fundamental rights of a stranger to the proceeding before the Court and that he contends justifies the petitioners in moving this Court under Artc
It is necessary to examine the validity of this argument
The question before the Supreme Court was thus as to whether even at the instance of a stranger to the earlier proceedings the earlier order could be challenged by means of a writ petition under Article 32
One of the questions that had to be considered by the Court was whether the judicial order passed by the learned judge of the High Court was amenable to be writ jurisdiction of the Court under Article 32
On this question the judges reacted differently i Gajendragadkar CJ and Wanchoo Mudholkar Sikri and Ramaswamy JJ
had this to say The High Court is a superior Court of Record and it is for it to consider whether any matter falls within its jurisdiction 150 Or not
The order is a judicial order and if it is erroneous a person aggrieved by it though a stranger could move this Court under Article 136 and the order can be corrected in appeal but the question about the existence of the said jurisdiction as well as the validity or the propriety of the order cannot be raised in writ proceedings under article 32  ii Sarkar J also concurred in the view that this Court had no power to issue a certiorari to the High Court
He observed I confess the question is of some haziness
That haziness arises because the courts in our country which have been given the power to issue the writ are not fully analogous to the English courts having that power
We have to seek a way out for ourselves
Having given the matter my best consideration I venture to think that it was not contemplated that a High Court is an inferior court even though it is a court of limited jurisdiction
The Constitution gave power to the High Court to issue the writ
In England an inferior court could never issue the writ
I think it would be abhorrent to the principle of certiorari if a Court which can itself issue the writ is to be made subject to be corrected by a writ issued by another court
When a court has the power to issue the writ it is not according to the fundamental principles of certiorari an inferior court or a court of limited jurisdiction
It does not cease to be so because another Court to which appeals from it lie has also the power to issue the writ
That should furnish strong justification for saying that the Constitution did not contemplate the High Courts to be inferior courts so that their decisions would be liable to be quashed by writs issued by the Supreme Court which also had been given power to issue the writs
Nor do I think that the cause of justice will in any manner be affected if a High Court is not made amenable to correct by this Court by the issue of the writ
In my opinion therefore this Court has not power to issue a certiorari to a High Court
 iii Bachawat J held The High Court has jurisdiction to decide if it could restrain the publication of any document or information relating to the trial of a pending suit or concerning which the 151 suit is brought if it erroneously assume a jurisdiction not vested in it its decision may be set aside in appropriate proceedings but the decision is not open to attack under Article 32 on the ground that it infringes the fundamental right under Article 191a
If a stranger is prejudiced by an order forbidding the publication of the report of any proceeding his proper course is only to apply to the Court tn lift the ban  iv Justice Shah thought that in principle a writ petition could perhaps be filed to challenge an order of a High Court on the ground that it violated the fundamental rights of the petitioner under Articles 20 21 and 22 but he left the question open
He however concluded that an order of the nature in issue before the Court could not be said to infringe Article 19
Hidayatullah J as His Lordship then was however dissented
He observed Even assuming the impugned order means a temporary suppression of the evidence of the witness the trial Judge had no jurisdiction to pass the order
As he passed no recorded order the appropriate remedy in fact the only effective remedy is to seek to quash the order by a writ under Article 32
There may be action by a Judge which may offend the fundamental rights under articles 14 15 19 20 21 and 22 and an appeal to this Court will not only be practicable but will also be an ineffective remedy and this Court can issue a writ to the High Court to quash its order under Article 32 of the Constitution
Since there is no exception in Article 32 in respect of the High Courts there is a presumption that the High Courts are not excluded
Even with the enactment of Article 226 the power which is conferred on the High Court is not in every sense a coordinate power and the implication of reading articles 32 136 and 226 together is that there is no sharing of the powers to issue the prerogative writs possessed by this Court
Under the total scheme of the Constitution the subordination of the High Courts to the Supreme Court is not only evident but is logical His Lordship proceeded to meet an objection that such a course might 152 cast a slur on the High Courts or open the floodgates of litigation
He observed Article 32 is concerned with Fundamental Rights and Fundamental Rights only
It is not concerned with breaches of law which do not involve fundamental rights directly
The ordinary writs of certiorari mandamus and prohibition can only issue by enforcement of Fundamental Rights
A clear cut case of breach of Fundamental Right alone can be the basis for the exercise of this power
I have already given examples of actions of courts and judges which are not instances of wrong judicial orders capable of being brought before this court only by appeal but breaches of Fundamental Rights clear and simple
Denial of equality as for example by excluding members of a particular party or of a particular community from the public court room in a public hearing without any fault when others are allowed to stay on would be a case of breach of fundamental right of equal protection given by this Constitution
Must an affected person in such a case ask the Judge to write down his order so that he may appeal against it or is he expected to ask for special leave from this Court If a High Court judge in England acted improperly there may be no remedy because of the limitations on the rights of the subject against the Crown
But in such circumstances in England the hearing is considered vitiated and the decision voidable
This need not arise here
The High Court in our country in similar circumstances is not immune because there is a remedy to move this court for a writ against discriminatory treatment and this Court should not in a suitable case shirk to issue a writ to a High Court Judge who ignores the fundamental rights and his obligations under the Constitution
Other cases can easily be imagined under Article 14 15 19 20 21 and 22 of the Constitution in which there may be action by a Judge which may offend the fundamental rights and in which an appeal to this Court will not only be not practicable but also quite an ineffective remedy
We need not be dismayed that the view I take means a slur on the High Courts or that this Court will be flooded with petitions under Article 32 of the Constitution
Although the High Courts possess a power to interfere by way of high 153 prerogative writs of certiorari mandamus and prohibition such powers have not been invoked against the normal and routine work of subordinate courts and tribunals
The reason is that people understand the difference between an approach to the High Court by way of appeals etc
and approach for the purpose of asking for writs under Article 226
Nor have the High Courts spread a Procrustean bed for high prerogative writs for all actions to lie
Decisions of the courts have been subjected to statutory appeals and revisions but the losing side has not charged the Judge with a breach of fundamental rights because he ordered attachment of property belonging to a stranger to the litigation or by his order affected rights of the parties or even strangers
This is because the people understand the difference between normal proceedings of a civil nature and proceedings in which there is a breach of fundamental rights
The courts acts between parties and even between parties and strangers done impersonally and objectively are challengeable under the ordinary law only
But acts which involve the court with a fundamental right are quite different
 One more passage from the judgment needs to be quoted
Observed the learned Judge I may dispose of a few results which it was suggested might flow from my view that this Court can issue a high prerogative writ to the High Court for enforcement of fundamental rights
It was suggested that the High Courts might issue writs to this Court and to other High Courts and one Judge or Bench in the High Court and the Supreme Court might issue a writ to another judge or Bench in the same Court
This is an erroneous assumption
To begin with High Courts cannot issue a writ to the Supreme Court because the writ goes down and not up
Similarly a High Court cannot issue a writ to another High Court
The writ does not go to a court placed on an equal footing in the matter of jurisdiction XX XX XX I must hold that this English practice of not issuing writs in the same court is in the very nature of things
One High Court will thus not be able to issue a writ to another High 154 Court nor even to a court exercising the powers of the High Court
In so far as this Court is concerned the argument that one Bench or one Judge might issue a writ to another Bench or Judge need hardly be considered
My opinion gives no support to such a view and I hope I have said nothing to give countenance to it
These are imaginary fears which have no reality either in law or in fact
I have set out at length portions from the judgment of Hidayatullah J as Shri Rao placed considerable reliance on it
From the above extracts it will be seen that the majority of the Court was clearly of opinion that an order of a High Court cannot be challenged by way of a writ petition under Article 32 of the Constitution on the ground that it violates the fundamental rights not even at the instance of a person who was not at all a party to the proceedings in which the earlier order was passed
Even Hidayatullah J has clearly expressed the view that though a writ of certiorari might issue to quash the order of a High Court in appropriate case it cannot lie from a Bench of one court to another Bench of the same High Court
Subba Rao CJ has also made an observation to like effect in regard to High Court Benches inter se in Ghulam Sarwar vs Union  The decision in Prem Chand Garg seems to indicate to the contrary
But it is clearly distinguishable and has been distinguished by the nine judge Bench in Mirajkar
The observations of Gujendragadkar CJ at p 766 and Sarkar J at p 780 be seen in this context
In that case it is true that the order passed by the Court directing the appellant to deposit security was also quashed but that was a purely consequential order which followed on the well founded challenge to the validity of the rule
Hidayatullah J also agreed that this was so and explained that the judicial decision which was based on the rule was only revised
p790
Sri Rao also referred to Sadhanatham vs Arunachalam  In that case the petitioner was acquitted by the High Court in appeal of charges under section 302 and 148 of the Indian Penal Code
The brother of the deceased not the State or the informant petitioned this court under Article 136 of the Constitution for special leave to appeal against the acquittal
Leave was granted and his appeal was eventually allowed by the High Court
The judgment of the High Court was set aside and the conviction and sentence imposed by the trial court under section 302 was upheld by the Supreme Court in his earlier decision reported in  Thereupon the petitioner filed a writ petition under Article 32 of the Constitution 155 challenging the validity of the earlier order of this Court
Eventually the petition was dismissed on the merits of the case
However learned counsel for the appellant strongly relied on the fact that in this case a Bench of five judges of this Court entertained a petition under Article 32 to reconsider a decision passed by it in an appeal before the Court
He submitted that it was inconceivable that it did not occur to the learned judges who decided the case that after Mirajkar a writ petition under Article 32 was not at all entertainable
He therefore relied upon this judgment as supporting his proposition that in an appropriate case this court can entertain a petition under Article 32 and review an earlier decision of this court passed on an appeal or on a writ petition or otherwise
This decision one is constrained to remark is of no direct assistance to the appellant
It is no authority for the proposition that an earlier order of the court could be quashed on the ground that it offends the Fundamental Right
As the petition was eventually dismissed on the merits it was not necessary for the court to consider whether if they had come to the conclusion that the earlier order was incorrect or invalid they would have interfered therewith on the writ petition filed by the petitioner
Two more decisions referred to on behalf of the appellant may be touched upon here
The first was the decision of this Court in Attorney General vs Lachma Devi AIR 1986 SC 467
In that case the High Court had passed an order that certain persons found guilty of murder should be hanged in public
This order was challenged by a writ petition filed under article 32 by the Attorney General of India on the ground that it violated Article 21 of the Constitution
This petition was allowed by this Court
The second decision on which reliance was placed is that in Sukhdas vs Union Territory  In that case the petitioner accused of a criminal offence had not been provided with legal assistance by the court
The Supreme Court pointed out that this was a constitutional lapse on the part of the court and that the conviction on the face of the record suffered from a fatal infirmity
These decisions do not carry the petitioner any further
Sukhdas was a decision on an appeal and Lachma Devi does not go beyond the views expressed by Hidayatullah J and Shah J in Mirajkar
On a survey of these decisions it appears to me that Prem Chand Garg cannot be treated as an authority for the proposition that an earlier order of this Court could be quashed by the issue of a writ on the ground that it violated the fundamental rights
Mirajkar clearly precludes such a course
It is therefore not possible to accept the 156 appellant s plea that the direction dated 1621984 should be quashed on the grounds put forward by the petitioner
Inherent power to declare orders to be null and void 43
The next line of argument of learned counsel for the appellant is that the order dated 1621984 in so far as it contained the impugned direction was a complete nullity
Being an order without jurisdiction it could be ignored by the person affected or challenged by him at any stage of the proceedings before any Court particularly in a criminal case vide Dhirendra Kumar vs Superintendent  Counsel also relied on the following observations made in Kiran Singh v 
Chaman Paswan AIR  The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction and what the effect of Section 11 of the Suits Valuation Act is on that position
It is a fundamental princple well established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings
A defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties
If the question now under consideration fell to be determined only on the application of general principles governing the matter there can be no doubt that the District Court of Monghyr was coram non judice and that its judgments and decree would be nullities
emphasis added He also extensively quoted from the dicta of this Court in M L Sethi vs RP Kapur   where after setting out the speeches of Lord Reid and Lord Pearce in Anisminic Ltd vs Foreign Compensation Commissioner  this Court observed The dicta of the majority of the House of Lords in the above case would show the extent to which lack  and excess  of jurisdiction have been assimilated or in other words the extent to which we have moved away from the 157 traditional concept of jurisdiction
The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point
The practical effect of the decision is that any error of law can be reckoned as jurisdictional
This comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong
Almost any misconstruction of a statute can be represented as basing their decision on a matter with which they have no right to deal impose an unwarranted condition or addressing themselves to a wrong question
 The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error
Whether there is excess or jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute which will give little guidance
It is really a question of how much latitude the Court is prepared to allow
In the end it can only be a value judgment see RWR Wade Constitutional and Administrative Aspects of the Anisintic case Law Quarterly Review Vo 85 1969 p 198
Why is it that a wrong decision on a question of limitation or res judicata was treated as a jurisdictional error and liable to be interfered with in revision It is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata could oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack
The reason can only be that the error of law was considered as vital by the Court
And there is no yardstick to determine the magnitude of the error other than the opinion of this Court
 He also referred to Badri Prasad vs Nagarmal 1959 1 Supp
SCR 769 which followed the clear law laid down in Surajmul Nagarmul vs Trilon Insurance Co Ltd 1924 LR 52 IA 126 Balai Chandra Hazra vs Shewdhari Jadav  which followed Ledgard vs Bull LR 13 IA 134 Meenakshi Naidu vs Subramaniya Sastri LR 14 IA 140 and Sukhrani vs Hari Shankar  Sri Rao citing a reference from Halsbury s Laws of England 4th Edition Vol
X para 713 pages 321 2 contended that the High Court s jurisdiction clearly stood excluded by section 71 of the 1952 Act and hence the direction of the Supreme Court was also one without jurisdiction
158 44
In dealing with this contention one important aspect of the concept of jurisdiction has to be borne in mind
As pointed out by Mathew J in Kapur vs Sethi supra the word jurisdiction is a verbal coat of many colours
It is used in a wide and broad sense while dealing with administrative or quasi judicial tribunals and subordinate courts over which the superior courts exercise a power of judicial review and superintendence
Then it is only a question of how much latitude the court is prepared to allow and there is no yardstick to determine the magnitude of the error other than the opinion of the court
 But the position is different with superior courts with unlimited jurisdiction
These are always presumed to act with jurisdiction and unless it is clearly shown that any particular order is patently one which could not on any conceivable view of its jurisdiction have been passed by such court such an order can neither be ignored nor even recalled annulled revoked or set aside in subsequent proceedings by the same court
This distinction is well brought out in the speeches of Lord Diplock Lord Edmund Devier and Lord Scarman in Re Racal Communications Ltd  In the interests of brevity I resist the temptation to quote extracts from the speeches here
In the present case the order passed is not one of patent lack of jurisdiction as I shall explain later
Though I have come to the conclusion on considering the arguments addressed now before us that the direction in the order dated 1621984 cannot be justified by reference to Article 142 of the Constitution or section 407 of the 1973 Cr
PC that is not an incontrovertible position
It was possible for another court to give a wider interpretation to these provisions and come to the conclusion that such an order could be made under those provisions
If this Court had discussed the relevant provisions and specifically expressed such a conclusion it could not have been modified in subsequent proceedings by this Bench merely because we are inclined to hold differently
The mere fact that the direction was given without an elaborate discussion cannot render it vulnerable to such review
Shri PP Rao then placed considerable reliance on the observations of the Privy Council in Isaacs vs Robertson 1984 3 AER140 an appeal from a decision of the Court of Appeal of St Vincent and the Grenadines
Briefly the facts were that Robertson had obtained an interim injunction against Isaacs and two others on 3151979 which the latter refused to obey
The respondents motion for committal of the appellant for contempt was dismissed by the High Court of Saint Vincent
The Court of Appeal allowed the respondents 159 application the appellants were found to be in contempt and also asked to pay respondents costs
However no penalty was inflicted because the appellant would have been entitled to succeed on an application for setting aside the injunction has he filed one
The main attack by the appellant on the Court of Appeal s judgment was based on the contention that as a consequence of the operation of certain rules of the Supreme Court of St Vincent the interlocutory injunction granted by the High Court was a nullity so disobedience to it could not constitute a contempt of court
Lord Diplock observed Glosgow J accepted this contention the Court of Appeal rejected it in their Lordships  view correctly on the short and well established ground that an order made by a court of unlimited jurisdiction such as the High Court of Saint Vincent must be obeyed unless and until it has been set aside by the court
For this proposition Robotham AJA cited the passage in the judgment of Romer LJ in Hadkinson vs Hadkinson at at 288
It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a Court of competent jurisdiction to obey it unless and until that order is discharged
The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void
Lord Cotteniiam Leven to cases where the person affected by an order believes it to be irregular or even void
Lord Cotteniiam LC said in Chuck vs Cremer  at 342 47 ER884 at 855 A party who knows of an order whether null or valid regular or irregular cannot be permitted to disobey it 
It would be most dangerous to hold that the suitors or their solicitors could themselves judge whether an order was null or valid whether it was regular or irregular
That they should come to the court and not take upon themselves to determine such a question
That the course of a party knowing of an order which was null or irregular and who might be affected by it was plain
He should apply to the Court that it might be discharged
As long as it existed it must not be obeyed
 Such being the nature of this obligation two consequences will in general follow from its breach
The first is that anyone who dis 160 obeys an order of the court is in contempt and may be published by committal or attachment or otherwise
It is in their Lordships view says all that needs to be said on this topic
It is not itself sufficient reason for dismissing this appeal
Having said this the learned Law Lord proceeded to say The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind what they do support is the quite different proposition that there is a category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deals expressly with proceedings to set aside orders for irregularity and give to the Judge a discretion as to the order he will make
The judges in the case that have drawn the distinction between the two types of orders have cautiously refrained from seeking to lay down a comprehensive definition of defects that bring an order in the category that attracts ex debito justitiae the right to have it set aside save that specifically it includes orders that have been obtained in breach of rules of natural justice
The contrasting legal concepts of voidness and voidability form part of the English law of contract
They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentions litigation
Such an order is either irregular or regular
If it is irregular it can be set aside by the court that made it on application to that court if it is regular it can only be set aside by an appellate court on appeal if there is one to which an appeal lies
 Sri Rao strongly relied on this passage and modifying his earlier somewhat extreme contention that the direction given on 1621984 being a nullity and without jurisdiction could be ignored by all concerned even by the trial judge he contended on the strength of these observations that he was at least entitled ex debito justitiae to come to this Court and request the court in the interests of justice to set aside the earlier order without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irre 161 gularity if only on the ground that the order had been made in breach of the principles of natural justice
Violation of the principles of natural justice he contended renders the direction a nullity without any further proof of prejudice see Kapur vs Jagmohan  at 766 
Learned counsel contended in this context that the fact the direction had been given in the earlier proceedings in this very case need not stand in the way of our giving relief if we are really satisfied that the direction had been issued per incuriam without complying with the principles of natural justice and purported to confer a jurisdiction on the High Court which it did not possess
In this context he relied on certain decisions holding that an erroneous decision on a point of jurisdiction will not constitute res judicata
In Mathura Prasad vs Dossibai   this Court observed A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court
If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction the question would not in our judgment operate as res judicata
Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties whether the cause of action in the subsequent litigation is the same or otherwise
It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment
The matter in issue if it is one purely of fact decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be re opened
A mixed question of law and fact determined in the earlier proceeding between the same parties may not for the same reason be questioned in a subsequent proceeding between the same parties
0 xxxxx xxxxx Where however the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the court sanctioning something which is illegal by resor to the rule of res judicata a party affected by the decision will not 162 be precluded from challenging the validity of that order under the rule of res judicata for a rule of procedure cannot supersede the law of the land
 Counsel also relied on the decision of this Court in Ghulam Sarwar vs Union of India 1956 2 SCC271 where it was held that the principle of constructive res judicata was not applicable to habeas corpus proceedings
He also referred to the observations of DA Desai J in Soni Vrijlal Jethalal vs Soni Jadavji Govindji AIR 1972 Guj 148 that no act of the court or irregularity can come in the way of justice being done and one of the highest and the first duty of all courts is to take care that the act of the court does no injury to the suitors
He also made reference to the maxim that an act of or mistake on the part of a court shall cause prejudice to no one vide Jang Singh vs Brij Lal  at p 159
Relying on these decisions and passages from various treatises which I do not consider it necessary to set out in in extenso here Sri Rao contended that this court should not consider itself bound by the earlier order of the Bench or any kind of technicality where the liberty of an individual and the rights guaranteed to him under Articles 14 and 21 of the Constitution are in issue
It is urged that if this Court agrees with him that the direction dated 1621984 was an illegal one this Court should not hesitate nay it should hasten to set aside the said order and repair the injustice done to the appellant without further delay
On the other hand Sri Jethmalani vehemently urged that the present attempt to have the entire matter reopened constitutes a gross abuse of the process of court that it is well settled that the principle of res judicata is also available in criminal matters vide Bhagat Ram vs State 1972 2 SCC 466 and State vs Tara Chand 1973 SCc
774 that in the United States the principle of res judicata governs even jurisdictional issues and that the slightest hospitality to the accused s pleas will lead to a grave miscarriage of justice and set up a precedent perilous to public interest
I have given careful thought to these contentions
The appellant s counsel has relied to a considerable extent on the maxim actus curiae neminem gravabit for contending that it is not only within the power but a duty as well of this Court to correct its own mistakes in order to see that no party is prejudiced by a mistake of the Court
I am not persuaded that the earlier decision could be reviewed on the application of the said maxim
I share the view of my learned brother Venkatachaliah J that this maxim has very limited application and that it cannot be availed of to correct or review specific conclusions 163 arrived at in a judicial decision
brother Venkatachaliah J has further taken the view that this Court cannot exercise any inherent powers for setting right any injustice that may have been caused as a result of an earlier order of the Court
While alive to the consideration that the highest court in the land should not by technicalities of procedure forge fetters on its own feet and disable itself in cases of serious miscarriages of justice he has nevertheless come to the conclusion that the remedy of the appellant if any is by recourse to article 137 and nowhere else
 It is at this point that I would record a dissent from his opinion
In my view the decisions cited do indicate that situations can and do arise where this Court may be constrained to recall or modify an order which has been passed by it earlier and that when ex facie there is something radically wrong with the earlier order this Court may have to exercise its plenary and inherent powers to recall the earlier order without considering itself bound by the nice technicalities of the procedure for getting this done
Where a mistake is committed by a subordinate court or a High Court there are ample powers in this Court to remedy the situation
But where the mistake is in an earlier order of this Court there is no way of having it corrected except by approaching this Court
Sometimes the remedy sought can be brought within the four comers of the procedural law in which event there can be no hurdle in the way of achieving the desired result
But the mere fact that for some reason the conventional remedies are not available should not in my view render this Court powerless to give relief
As pointed out by Lord Diplock in Isaac vs Robertson  19841 3 AER 140 it may not be possible or prudent to lay down a comprehensive list of defects that will attract the ex debito justitiae relief
Suffice it to say that the court can grant relief where there is some manifest illegality or want of jurisdiction in the earlier order or some palpable injustice is shown to have resulted
Such a power can be traced either to article 142 of the Constitution or to the powers inherent in this Court as the apex court and the guardian of the Constitution
It is however indisputable that such power has to be exercised in the rarest of rare cases
As rightly pointed out by Sri Jethmalani there is great need for judicial discipline of the highest order in exercising such a power as any laxity in this regard may not only impair the eminence dignity and integrity of this Court but may also lead to chaotic consequences
Nothing should be done to create an impression that this Court can be easily persuaded to alter its views on any matter and that a larger Bench of the Court will not only be able to reverse the precedential effect of an earlier ruling but may also be 164 inclined to go back on it and render it ineffective in its application and binding nature even in regard to subsequent proceedings in the same case
In Bengal Immunity Company Limited vs The State of Bihar and Ors  this Court held that it had the power in appropriate cases to reconsider a previous decision given by it
While concurring in this conclusion Venkatarama Ayyar J sounded a note of warning of consequences which is more germane in the present context The question then arises as to the principles on which and the limits within which this power should be exercised
It is of course not possible to enumerate them exhaustively nor is it even desirable that they should not crystallised into rigid and inflexible rules
But one principle stands out prominently above the rest and that is that in general there should be finality in the decisions of the highest courts in the land and that is for the benefit and protection of the public
In this connection it is necessary to bear in mind that next to legislative enactments it is decisions of Courts that form the most important source of law
It is on the faith of decisions that rights are acquired and obligations incurred and States and subjects alike shape their course of action
It must greatly impair the value of the decisions of this Court if the notion came to be entertained that there was nothing certain or final about them which must be the consequence if the points decided therein came to be re considered on the merits every time they were raised
It should be noted that though the Privy Council has repeatedly declared that it has the power to reconsider its decisions in fact no instance has been quoted in which it did actually reverse its previous decision except in ecclesiastical cases
If that is the correct position then the power to reconsider is one which should be exercised very sparingly and only in exceptiona1 circumstances such as when a material provision of law had been overlooked or where a fundamental assumption on which the decision is base1 turns out to be mistaken
In the present case it is not suggested that in deciding the question of law as they did in The State of Bombay vs The United Motors India Ltd 1953 SCR l069 the learned Judges ignored any material provisions of law or were under any misapprehension as to a matter fundamental to the decision
The arguments for the appellant before us were in fact only a repetition of the 165 very contentions which were urged before the learned Judges and negatived by them
The question then resolves itself to this
Can we differ from a previous decision of this Court because a view contrary to the one taken therein appears to be preferable I would unhesitatingly answer it in the negative not because the view previously taken must necessarily be infallible but because it is important in public interest that the law declared should be certain and final rather than that it should be declared in one sense
Or the other
That I conceive in the reason behind article 141
There are questions of law on which it is not possible to avoid difference of opinion and the present case is itself a signal example of it
The object of article 141 is that the decisions of this Court on these questions should settle the controversy and that they should be followed as law by all the Courts and if they are allowed to be reopened because a different view appears to be the better one then the very purpose with which article 141 has been enacted will be defeated and the prospect will have been opened of litigants subjecting our decisions to a continuous process of attack before successive Benches in the hope that with changes in the personnel of the Court which time must inevitably bring a different view might find acceptance
I can imagine nothing more damaging to the prestige of this Court or to the value of its pronouncements
In James vs Commonwealth 18 CLR54 it was observed that a question settled by a previous decision should not be allowed to be reopened upon a mere suggestion that some or all of the Members of the later Court might arrive at a different conclusion if the matter was res integra
Otherwise there would be grave danger of want of continuity in the interpretation of the law per Griffiths CJ at p 58
It is for this reason that article 141 invests decisions of this Court with special authority but the weight of that authority can only be what we ourselves give to it
 Even in the context of a power of review properly so called Ven kataramiah J had this to say in Sheonandan Paswan vs State of Bihar  Ors  The review petition was admitted after the appeal had been dismissed only because Nandini Satpathy cases 1987 1 SCC269 and 1987 lSCC279 had been subsequently 166 referred to a larger bench to review the earlier decisions
When the earlier decisions are allowed to remain intact there is no justification to reverse the decision of this Court by which the appeal had already been dismissed
There is no warrant for this extraordinary procedure to be adopted in this case
The reversal of the earlier judgment of this Court by this process strikes at the finally of judgments of this Court and would amount to the abuse of the power of review vested in this Court particularly in a criminal case
It may be noted that no other court in the country has been given the power of review in criminal cases
I am of the view that the majority judgment of Baharul Islam and RB Misra JJ should remain undisturbed
This case cannot be converted into an apeal against the earlier decision of this Court  The attempt of the appellant here is more far reaching
He seeks not the mere upsetting of a precedent of this Court nor the upsetting of a decision of a High Court or this Court in accordance with the normal procedure
What he wants from us is a declaration that an order passed by a five judge Bench is wrong and that it should in effect be annulled by us
This should not be done in my view unless the earlier order is vitiated by a patent lack of jurisdiction or has resulted in grave injustice or has clearly abridged the fundamental rights of the appellant
The question that arises is whether the present case can be brought within the narrow range of exceptions which calls for such interference
I am inclined to think that it does not
I have indicated earlier while discussing the contentions urged by Shri PP Rao that some of them were plausible and that if I were asked to answer these questions posed by counsel for the first time I might agree with his answers
But I have also indicated that in my view they do not constitute the only way of answering the questions posed by the learned counsel
Thus to the question did this Court have the jurisdiction to issue the impugned direction a plausible answer could well be that it did if one remembers that one of the transferred cases before this Court was the revision petition before the Bombay High Court in which a transfer of the case to the High Court has been asked for and if one gives a wide interpretation to the provisions of Article 142 of the Constitution
On the question whether this Court could transfer the case to a High Court Judge who was not a Special Judge a court could certainly accept the view urged by Sri Ram Jethmalani that section 71 of the 1952 Act should not be so construed 167 as to exclude the application of the procedural provisions of the Cr
PC in preference to the view that has found favour with me
Though the order dated 1621984 contains no reference to or discussion of section 407 Cr
PC this line of thinking of the judges who issued the direction does surface in their observations in their decision of even date rendered on the complainant s special leave petition  at page 943 4I have already pointed out that if the transfer is referable to section 407 of the 1973 Cr
PC it cannot be impugned as offending Article 14 and 21 of the Constitution
The mere fact that the judges did not discuss at length the facts or the provisions of section 407 Cr
PC vis a vis the 1952 Act or give a reasoned order as to why they thought that the trial should be in the High Court itself cannot render their direction susceptible to a charge of discrimination
A view can certainly be taken that the mere entrustment of this case to the High Court for trial does not perpetrate manifest or grave injustice
On the other hand prima facie it is something beneficial to the accused and equitable in the interest of justice
Such trial by the High Court in the first instance will be the rule in cases where a criminal trial is withdrawn to the High Court under section 407 of the Cr
PC Or where a High Court judge has been constituted as a Special Judge either under the 1952 Act or some other statute
The absence of an appeal to the High Court with a right of seeking for further leave to appeal to the Supreme Court may be considered outweighed by the consideration that the original trial will be in the High Court as in Sessions cases of old in the Presidency Towns with a statutory right of appeal to the Supreme Court under section 374 of the Cr
In this situation it is difficult to say that the direction issued by this Court in the impugned order is based on a view which is manifestly incorrect palpably absurd or patently without jurisdiction
Whether it will be considered right or wrong by a different Bench having a second look at the issues is a totally different thing
It will be agreed on all hands that it will not behove the prestige and glory of this Court as envisaged under the Constitution if earlier decisions are revised or recalled solely because a later Bench takes a different view of the issues involved
Granting that the power of review is available it is one to be sparingly exercised only in extraordinary or emergent situations when there can be no two opinion about the error or lack of jurisdiction in the earlier order and there are adequate reasons to invoke a resort to an unconventional method of recalling or revoking the same
In my opinion such a situation is not present here
The only question that has been bothering me is that the appellant had been given no chance of being heard before the 168 impugned direction was given and one cannot say whether the Bench A would have acted in the same way even if he had been given such opportunity
However in the circumstances of the case I have come to the conclusion that this is not a fit case to interfere with the earlier order on that ground
It is true that the audi altarem partem rule is a basic requirement of the rule of law
But judicial decisions also show that the degree of compliance with this rule and the extent of consequences flowing from failure to do so will vary from case to case
Krishna Iyer J Observed thus in Nawabkhan Abbaskhan vs State 19743 SCR 47 thus an order which infringed a fundamental freedom passed in violation of the audi alteram partem rule was a nullity
A determination is no determination if it is contrary to the constitutional mandate of article 19
On this footing the externment order was of no effect and its violation was not offence
Any order made without hearing the party affected is void and ineffectual to bind parties from the beginng if the injury is to a constitutionally guaranteed right
May be that in ordinary legislation or at common law a Tribunal having jurisdiction and failing to hear the parties may commit an illegality which may render the proceedings voidable when a direct attack was made thereon by way of appeal revision or review but nullity is the consequence of unconstitutionality and so the order of an administrative authority charged with the duty of complying with natural justice in the exercise of power before restricting the fundamental right of a citizen is void ab initio and of no legal efficacy
The duty to hear menacles his jurisdictional exercise and any act is in its inception void except when performed in accordance with the conditions laid down in regard to hearing  emphasis added So far as this case is concerned I have indicated earlier that the direction Of 1621984 cannot be said to have infringed the fundamental rights of the appellant or caused any miscarriage of justice
As pointed out by Sri Jethmalani the appellant did know on 16284 that the judges were giving such a direction and yet he did not protest
Perhaps he did think that being tried by a High Court Judge would be more beneficial to him as indeed was likely to be
That apart as discussed earlier several opportunities were available for the appellant to set this right
He did not move his little finger to obtain a variation of this 169 direction from this Court
He is approaching the Court nearly after two years of his trial by the learned judge in the High Court
Volumes of testimony we are told have been recorded and numerous exhibits have been admitted as evidence
Though the trial is only at the stage of the framing charges the trial being according to the warrant procedure a lot of evidence has already gone in and the result of the conclusions of Sabyasachi Mukharji J would be to wipe the slate clean
To take the entire matter back at this stage to square No 1 would be the very negation of the purpose of the 1952 Act to speed up all such trials and would result in more injustice than justice from an objective point of view
As pointed out by Lord Denning in R vs Secretary of State for the Home Departrnent ex parte Mughal l 19731  the rules of natural justice must not be stretched too far
They should not be allowed to be exploited as a purely technical weapon to undo a decision which does not in reality cause substantial injustice and which had the party been really aggrieved thereby could have been set right by immediate action
After giving my best anxious and deep thought to the pros and cons of the situation I have come to the conclusion that this is not one of those cases in which I would consider it appropriate to recall the earlier direction and order a retrial of the appellant de novo before a Special Judge
I would therefore dismiss the appeal
O R D E R In view of the majority judgments the appeal is allowed all proceedings in this matter subsequent to the directions of this Court on 16th February 1984 as indicated in the judgment are set aside and quashed
The trial shall proceed in accordance with law that is to say under the Act of 1952


Summary:
The petitioners are a public limited company and its General Manager Legal
The Company was a manufacturer of electric resistence welded steel tubes and pipes and registered as a dealer under the Haryana General Sales Tax Act 1973 as also the Central Sales Tax Act
It filed returns for all the quarters covered within the period 1968 69 to 1974 75 as prescribed by the Punjab General Sales Tax Act 1948 till March 31 1973 and under the Haryana Act for the quarters of the remaining years as the Haryana Act came into force with effect from May 5 1973
On the receipt of notice relating to the assessment years 1968 69 to 1973 74 in the prescribed form ST XIV under section 142 of the Punjab Act and in the prescribed form ST 25 under section 282 of the Haryana Act relating to the year 1974 75 the petitioner Company appeared before respondent No 2 Assessing Authority and complied with the requirements of the said notice by production of documents books and other papers
While the matter was thus proceeding respondent No 2 again issued a notice on September 24 1982 requiring the petitioner Company to produce certain further records and documents
The petitioners in their writ petition challenged the notices and also the vires of Section 28A of the Haryana General Sales Tax Act 1973
On the question Whether an order of assessment under subsection 3 of section 11 of the Punjab Act or section 283 of the Haryana Act can now be completed or would be barred by limitation
896 Dismissing the writ petition  HELD 1
Assessment of tax should be completed with expedition
It involves the revenue to the State
905B C 2
In the case of a registered dealer who collects sales tax on behalf of the State there is no justification for him to withhold the payment of the tax so collected
If a timely assessment is completed the dues of the State can be conveniently ascertained and collected
Delay in completion of assessment often creates problems
Long delay is not in the interest of either the assessee or the State
905C D 3
In the absence of any prescribed period of limitation the assessment has to be completed within a reasonable period
What such reasonable period would be would depend upon the facts of each case
904E F 4
Until by statute a limitation is provided it is proper for the State Government to require by statutory rules or appropriate instructions to ensure completion of assessments with expedition and reasonable haste but subject to rules of natural justice
905E F In the instant case though notices were issued under sections 112 of the Punjab Act or Section 282 of the Haryana Act within a reasonable period from the filing of returns for the respective quarters in the assessment years under consideration further action had not been taken by the assessing officer to complete the assessments
Now that the assessing authority intends to complete assessments under section 113 of the Act no prejudice is seen to be caused to the assessee if the assessing authority is permitted to complete the assessment now
In the situation which has thus arisen it would be appropriate to call upon the assessing authority to complete all these pending assessments within a total period of four months on the basis of available material in the record before him and such other material as the authority may obtain
Such assessment has to be only under section 113 of the Act
904D EG H905A B 5
It may be that in a given case the original notice under section 112 or a subsequent order requiring production of some more material on specific points is not complied with
Non compliance with the notice under section 112 of the Act leads to a situation where a best judgment assessment can be complied
This Court in Indian Aluminium Cables Ltd  Anr
vs Excise and Taxation Officer  Anr 1977 1 897 SCR 716 has indicated that a further notice has to be given
The question that fell for determination before the Court did not require examination as to whether such a notice was necessary
Though such a notice is not a statutory prescription judicial propriety would require a larger bench of the Court to examine the correctness of the view in the Indian Aluminium case
On an appropriate occasion the question as to whether such a notice is a condition precedent to completion of assessment would be examined
903E H Ghanshyamdas vs Regional Assistant Commissioner of Sales Tax Nagpur  Ors
14 STC 976 Madan Lal Arora vs Excise and Taxation Officer Amritsar 12 STC 387 Jagat Ram Om Prakash vs Excise and Taxation Officer Amritsar 16 STC 107 and Indian Aluminium Cables Ltd  Anr
vs Excise and Taxation Officer  Anr
   referred to