ivil Appeal No 523 NT of 1975
From the Judgment and Order dated 3111974 of the High Court of Kerala in Tax Reference Case No 52 of 1971
TS Krishnamurthy Iyer and PK Pillai for the Appellant
G Vishwanath Iyer and N Sudakaran for the Respondent
The Judgment of the Court was delivered by KANIA J
This is an appeal against a judgment of a Division Bench of the High Court of Kerala under the provisions of the Kerala General Sales Tax Act 1963 and Tax Reference Case No 52 of 1971 filed pursuant to special leave granted by this Court
The Appellant before us is the Ms Alwaye Agencies and the respondent is the Dy
Commissioner of Agricultural Income tax and Sales Tax Ernakulam
The assessee firm was appointed as Distributor by the Travancore Cochin Chemicals Ltd referred to hereinafter as the said company to effect the sale of Sodium Hydrosulphite manufactured by the said company in the area covered by the Kerala State under an agreement entered into on 11th February 1967
The dispute pertains to the transactions which took place between 1st September 1967 and 20th December 1968 since it is an undisputed that the transactions upto the former date are not taxable
It is common ground that the relations between the parties were governed throughout by the said agreement and that the parties adhered to the terms of the said agreement
In view of this it would be desirable to examine that agreement at this stage
As aforesaid the agreement is dated 11th February 1967
Under the agreement the assessee firm was appointed as Distributor for the aforesaid product manufactured by the company for the area covered by the Kerala State
Clause 2 of the agreement provides that the distributorship was on an exclusive basis giving the distributor the right of sale of the product within the aforementioned area and that supplies would be made only direct to the distributor Sub clause a of clause 2 further provides 882 However when on the advice of the distributor bulk supplies are effected in waggon load or lorry load lots the Company may effect supplies direct to the consumer provided that the distributor arranges the payment as per the clause hereinafter mentioned and also takes the responsibility to bear entirely the resultant effects and risks from effecting such direct despatches
 Sub clause b of the said clause provides that the company reserves the right to effect the sale of Sodium Hydrosulphite to anybody and anywhere in India direct
Under Clause 4 the price which the distributor would be entitled to charge to the consumer was fixed by the company and it was provided that the distributor will sell the materials to the clients or consumers at the said price plus certain costs incurred by the distributor
Cluase 6 provides that the said company would grant the distributor a rebate of 3 on the ex factory selling price which the company was entitled to determine as aforesaid
This rebate was liable to be paid to the distributor only at the end of the month when the statement of the account would be settled
Under Clause 7 the distributor was liable to guarantee the minimum off take of the said product
Clause 8 of the agreement provides for mode of payment by the assessee distributor to the said company and very briefly stated it provides that the assessee would arrange for effecting payment either in cash or by Demand draft payable at par or alternatively would open an irrevocable letter of credit in favour of the said company negotiable against RR or other documents of despatch of goods
It is provided that the letter of credit would cover the value of goods as well as charges of transport for booking the goods to destination station Sales tax and other expenses including cost of insurance if any effected at the distributor s request
An alternative mode of the payment is provided to the effect that the assessee as distributor must remit 10 of the full value by Demand Draft and retire the documents of despatch of goods sent to the assessee through bank for collection from the bank
Clause 8 further provides if the documents sent by the said company are not retired within the stipulated time interest would be payable by the distributor on the amount due at the rate of 12 per annum
The clause also makes it clear that if the second mode of payment is adopted by the assessee consignments would be insured by the said company against transit risk and the insurance charges would have to be borne by the assessee
It may be noted at this stage that the Tribunal has found as a fact that in respect of the said transactions 883 from 1st September 1967 to 20th December 1968 the invoices were prepared by the said company in the names of the consumers of goods and the goods were consigned to the destinations through public carriers booked self
The transport bills were endorsed and handed over by the said company to the assessee
From 20th December 1968 goods were consigned to the destination showing the assessee as consignor
But we are not concerned with the period from 20th December 1968
In the assessment of the assessee for the period 1967 68 under the Kerala General Sales Tax Act 1963 the final assessment was initially completed on 27th September 1968 and a turnover of Rs7095261 as reported by the assessee was accepted and tax levied on that basis
Thereafter it was alleged by the Assessing Authority that the transactions in the aforesaid period which had taken place in the manner set out earlier had been wrongly excluded from the turnover reported by the assessee in the return and hence that turnover has escaped assessment
The contention of the assessee that these transactions did not constitute sales by the said company to the assessee was not accepted and hence it was held by the Assessing Officer that the said turnover was liable to be included in the taxable turnover of the assessee as escaped turnover
An appeal preferred by the assessee to the Appellant Assistant Commissioner was dismissed
In a Second Appeal to the Tribunal the Tribunal took the view by majority that the aforesaid transactions had taken place directly between the said company and the consumers and the assessee was merely an agent of the company in respect thereof
The Tribunal allowed the appeal and directed the aforesaid transactions to be excluded from the taxable turnover of the assessee
On a revision to the High Court under Section 41 of the said Act the Division Bench of the High Court took the view that the Tribunal was wrong in coming to the conclusion that the assessee was acting only as an Agent in respect of the aforesaid transactions between the said company and the consumers and allowed the Revision Application
The Division Bench of the High Court considered several cases which were cited before the Division Bench and held that the test to determine whether there is a sale or not is to find out whether there is transfer of property
It further pointed out that the question whether there has been transfer of property must necessarily depend upon an appreciation of the rights and obligations of the parties under the contract
If the property is transferred unless there is a specific stipulation to the contrary any risk of loss or injury to the goods would thereafter be not in the seller but in the buyer
They further pointed out that the delivery may be either to the distributor himself or to his 884 nominee the nominee could be the person whose orders are booked by the distributor
They pointed out that in the present case even when the goods were despatched by the said company to the address of the customers whose orders were booked by the distributor namely the assessee the documents of title were not delivered to the customers but handed over to the distributor on receipt of price or the documents of title were endorsed in favour of the distributor and sent through the banks to be honoured by the distributor by payment
In such cases where there was some time lag between the despatch of goods and the entrustment of documents of title on receiving payment through the bank care was taken to stipulate that the risk would be covered by insurance which would be at the cost of the distributor
The Division Bench further pointed out that in the said agreement the distributor had not been referred to as Agent but as Distributor and that this was also significant although not conclusive
It was on the basis of these conclusions that the High Court reversed the decision of the Tribunal and allowed the Revision Application
In our opinion since both the parties have proceeded on the footing that the transactions in question were effected pursuant to the said agreement the primary task to which we must address ourselves is to examine whether under the agreement the assessee firm was an agent of the said company or whether the assessee firm was really a purchaser of the goods which were booked by it
In this connections it must be noticed that under sub clause a of Clause 2 provides that the distributor has the right of the sale of the product within the stipulated area
Bulk supplies were effected in waggon load or lorry load by the said company direct to the consumer but only provided that the distributor arranged the payment as per the agreement and also took the responsibility to bear entirely the resultant effects and risk from said direct despatches
It is true that the price at which the goods were to be sold to the customers was fixed by the company but that itself does not necessarily lead to the conclusion that the assessee acted merely as an agent of the said company
In fact it is well settled that the mere fact that the manufacturer fixes the sale price by itself cannot lead to the conclusion that the distributor is merely an agent
It is significant that under the agreement what the distributor got is described as a rebate and not as commission as one would normally expect in an agreement of agency
This is a factor which is by no means conclusive but to a certain extent indicative of the relationship between the said company and the assessee
What is most important is however that the supplies were made to the distributor against payment either immediate or deferred as provided in the agreement and even when 885 the goods were destined directly to the customer it was the distributor who had to guarantee to arrange the payment
Clause 8 makes it quite clear that the arrangement for effecting payment had to be made by the distributor either in case of by demand draft or by irrevocable letter of credit in the company s favour negotiable against RR or other documents of despatch of goods
It is also significant that where there was some time lag between the sending of the goods and the payment the goods were to be insured at the cost of the assessee
This circumstance in our opinion clearly shows that in respect of the goods dispatched under orders placed by the distributors the distributors really acted as purchasers of the goods which they in turn sold to the customers and did not merely act as agents of the said company
In respect of the goods in question which were despatched through public carriers although the invoices were prepared in the names of the consumers of the goods and the goods were consigned to the destination through public carrier booked to self as pointed by the Tribunal and the bills were endorsed and handed over to the assessee
When considered in the light of the agreement these circumstances clearly shows that in respect of these transactions the property in the goods dispatched passed to the distributor on the bills being endorsed and handed over to the distributors
Our attention was drawn by Shri Krishnamurthy Iyer learned counsel for the assessee appellant to the decision of this Court in The Bhopal Sugar Industries Ltd vs Sales Tax Officer Bhopal 1977 3 SCC p 147 where the question was whether the contract was one of agency or sale
This Court held that the question will have to be determined having regard to the terms and recitals of the agreement the intention of the parties as may be spelt out from the terms of the document and the surrounding circumstances and having regard to the course of dealings between the parties
While interpreting the terms of the agreement the Court has to look to the substance rather than the form of it
The mere fact that the word agent  or agency  is used or the words buyer  and seller  are used to describe the status of the parties concerned is not sufficient to lead to the irresistible inference that the parties did in fact intend that the said status would be conferred
We are in complete agreement with the principles laid down in this decision
We may point out that although we have referred to the assessee being described in the agreement as distributor and not as agent and to the fact that what they got was described as rebate and not commission we have not treated these circumstances as in any manner decisive
In our view however these descriptions considered in the light of the general tenor of the agreement and the 886 circumstances surrounding the transactions between the parties show that the assessee was not agent but really a purchaser from the company in respect of the goods in question
Learned counsel for the appellant also drew our attention to a passage in Pollack  Mulla s Commentary on the Sale of Goods and Partnership Acts 4th Edition at page 114 where the learned authors have cited with approval the statement of Lord Justice Cotton to the effect that when the vendor on shipment takes the bill of lading to his own order he has the power of absolutely disposing of the cargo and may prevent the purchaser from ever asserting any right of property therein
Lord Justice Cotton observed that in such cases the purchaser had no property in the goods though he had offered to accept bills or had paid the price
These observations however in our view have no application to the case before us because in the case before us although the goods were consigned to the self the documents relating to the despatch of goods namely RR or other documents of title were endorsed in favour of the assessees and handed over to them on payment or were sent to the assessees through the bank for collection
We may mention that it was urged by learned counsel for the respondentin the alternative that although sub section 21 of Section 2 of the Kerala General Sales Tax Act defines sale in a manner similar to the definition of the said term under the Sale of Goods Act Explanation 5 to sub section 21 of Section 2 provides that two independent sales or purchases shall for the purposes of that Act be deemed to have taken place in the circumstances set out in that explanation
A perusal of the said explanation shows that such independent sales or purchases take place inter alia where the goods are transferred from a principal to his selling agent and from the selling agent to the purchaser
It was submitted by him that in view of this explanation even ifthe appellant firm was merely the agent of the said company in respect of the transactions in question there were two sales which must be deemed to have taken place in respect of each of the transactions for the purposes of the said Act one from the said company to the appellant and the other from the appellant to the respective consumer and that the sale from the said company to the appellant was liable to be included in the taxable turnover of the assessce
In ourview it is not necessary to consider this submission because according to us in view of the said agreement considered in the light of the surrounding circumstances the assesseeas distributor was not an agent of the said company in respect of the transaction in question but was the pur 887 chaser and hence the transactions were liable to be included in the turnover of the assessee
In the result we find that there is no merit in the appeal and the appeal must stand dismissed with costs
There will be an order accordingly
SL Appeal dismissed


Summary:
The appellant was the Chief Minister of Maharashtra between June 9 1980 and January 12 1982 when he resigned that office in deference to the judgment of High Court in a writ petition filed against him but continued as an MLA
On August 9 1982 respondent No 1 a member of a political party filed a complaint before a Special Judge against the appellant and others for offences under sections 161 and 165 of the Indian Penal Code and section 5 of the Criminal Law Amendment Act 1952 and also under sections 384 and 420 read with sections 109 and 120B of the Indian Penal Code
The Special Judge issued process to the appellant
Later the Special Judge over ruled the objection of the appellant to take cognizance of the offences on a private complaint and to issue process in the absence of notification under section 72 of the Criminal Law Amendment Act 1952 specifying as to which of the three special Judges of the area should try such cases
Against this the appellant filed a revision application in the High Court which dismissed it subsequently
The appellant s Special Leave Petition against this was dismissed by the Supreme Court which held that the complaint filed by respondent No 1 was clearly maintainable and cognizance was properly taken of it
During the pendency of the revision application in the High Court the State Government notified the Special Judge to try the off 3 ences specified under section 61 of the Act and appointed another Special Judge who discharged the appellant holding that a member of the Legislative Assembly was a public servant and there was no valid sanction for prosecuting the appellant
Against this order of discharge
respondent No 1 filed a Criminal Revision Application in the High Court which was subsequently withdrawn to this Court
On an appeal filed by respondent No 1 directly under Article 136 of the Constitution against the order of discharge the Supreme Court held on 1621984 that a member of the Legislative Assembly was not a public servant and set aside the order of the Special judge
The Court observed that though nearly 2 12 years had rolled by since prosecution against the accused who was Chief Minister of a State was launched and his character and integrity came under cloud the case had not moved an inch further and that an expeditious trial was primarily in the interest of the accused and mandate of Article 21
It further observed that expeditious disposal of a criminal case was in the interest of both the prosecution and the accused
It therefore suo motu withdrew this special case and another one filed against the appellant by another person and transferred them to the High Court with the request to the Chief Justice to assign these two cases to a sitting Judge of the High Court who should proceed to expeditiously dispose of the cases preferably by holding trial from day to day
Pursuant to the directions of this Court dated February 16 1984 the Chief Justice of the High Court assigned the cases to one of the Judges of that Court
The appellant appeared before him and raised an objection that the case could be tried only by a Special Judge appointed by the Government under the 1952 Act
The Judge rejected this and other objections holding that he was bound by the order of the Supreme Court 
Special Leave Petitions as well as a writ petition filed by the appellant against the aforesaid decision were dismissed by this Court on April 17 1984 holding that the Judge was perfectly justified and indeed it was his duty to follow the decision of this Court which was binding on him
It also observed that the writ petition challenging the validity of the order and judgment of this Court as nullity or otherwise could not be entertained and that the dismissal of the writ petition would not prejudice the petitioner s right to approach this Court with an appropriate review petition or any other application which he may be entitled to in law
4 Thereafter the cases were transferred to another Special Judge who framed 21 charges and declined to frame 22 other charges proposed by respondent No 1
This Court allowed respondent No1s appeal by special leave except in regard to three draft charges under section 384 IPC and requested the High Court to nominate another Judge to try the cases
The Judge to whom the cases were transferred framed 79 charges against the appellant and refused to proceed against the other named conspirators
Against the aforesaid order the appellant filed a Special Leave Petition before this Court questioning the jurisdiction of the Special Judge to try the case in violation of the appellant s fundamental rights conferred by Articles 14 and 21 and the provisions of the Criminal Law Amendment Act of 1952
The appellant also filed a Special Leave Petition against the decision of the Judge holding that none of the 79 charges framed against the accused required sanction under section 1971 of the Cr
PC and a writ petition challenging a portion of section 1971 as ultra vires Articles 14 and 21 of the Constitution
This Court granted special leave in the Special Leave Petition questioning the jurisdiction of the Special Judge to try the case and stayed further proceedings in the High Court
It also issued notice in the other Special Leave Petition and the writ petition and directed these to be tagged on to the appeal
An application filed by respondent No 1 for revocation of the Special Leave was dismissed and the appeal was referred to a Bench of seven Judges
The other Special Leave Petition and the writ petition were delinked to be heard after the disposal of the appeal
In the appeal two questions arose namely 1 whether the directions given by this Court on 16th February 1984 withdrawing the special cases pending in the Court of Special Judge and transferring the same to the High Court with the request to the Chief Justice to assign these cases to a sitting Judge of that High Court in breach of section 71 of the Criminal Law Amendment Act 1952 which mandated that the offences as in this case should be tried only by a Special Judge thereby denying at least one right of appeal to the appellant was violative of Articles 14 and 21 of the Constitution and whether such direction were at all valid or legal and 2 if such directions were not at all valid or legal in view of the Court s order of April 17 1984 whether the present 5 appeal was sustainable or the grounds therein justiciable in these proceedings
In other words whether the said directions in a proceeding inter parties were binding even if bad in law or violative of Articles 14 and 21 of the Constitution and as such immune from correction by this Court even though they caused prejudice and injury
Allowing the appeal and setting aside and quashing all the proceedings subsequent to the directions of the Court on 1621984 and directing that the trial should proceed in accordance with law ie Criminal Law Amendment Act 1952
 HELD Majority Sabyasachi Mukharji Oza and Natarajan JJ
Per Sabyasachi Mukharji
Section 71 of the Criminal Law Amendment Act 1952 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
The offences specified under section 61 of the 1952 Act are those punishable under sections 161 162 163 164 and 165A of the Indian Penal Code and section 5 of the Prevention of Corruption Act 1947
44B C49HA Gurcharan Das Chadha vs State of Rajasthan  referred to
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 to try any case when it did not possess such jurisdiction under the scheme of the 1952 Act
49A B Kiran Singh and others vs Chaman Paswan  Others  at 121 and M L Sethi vs R P Kapur  relied on
21 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
No Court whether superior or inferior or both combined can enlarge the jurisdiction of the Court or divest a person of his rights of revision and appeal
50E 6 ML Sethi vs RP Kapur  and Raja Soap Factory vs section P Shantara  referred to
Halsbury s Laws of England 4th Vol10 page at para 720 and Ammon Rubinstein s Jurisdiction and Illegality 1965 Edn
16 50 referred to
22 Want of jurisdiction can be established solely by superior court and in practice no decision can be impeached collaterally by any interior court but the superior court can always correct its own error brought to its notice either by way of petition or ex debito justitiae50G Rubinstein s jurisdiction and illegality1965 Edn referred to
23 The distinction between an error which entails absence of jurisdiction and an error made within the jurisdiction is so fine that it is rapidly being eroded
69H70A Anismatic Ltd vs Foreign Compensation Commissioner 1969 1 All ER208 at 241 referred to
This is not a case of collateral attack on judicial proceedings it is a case where the Court having no court superior to it rectifies its own order
69 The impugned directions were void because power was not there for this Court to transfer a proceeding under the Act of 1952 from one Special Judge to the High Court
69G The singling out of the appellant for a speedier trial by the High Court for an offence which the High Court had no jurisdiction to try under the Act of 1952 was unwarranted unprecedented and directions given by this Court for the said purposes were not warranted
When that fact is brought to the notice of the court it must remedy the situation
51D E 24 In rectifying the error no personal inhibitions should debar this Court because no person should suffer by reason of any mistake of this Court
Here no rule of res judicata would apply to prevent this Court from entertaining the grievance and giving appropriate directions51E F Soni Vrajlal Jethalal vs Soni Jadavji and Govindji  Ors
AIR 1972 Gujarat 148 approved
7 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 the Supreme Court and transfer of it to the High Court
Unless a plea in question is taken it cannot operate as res judicata62G H Shivshankar Prasad Shah and others v Baikunth Nath Singh and others   Bikan Mahuri and others vs Mst
Bibi Walian and others AIR 1939 Patna 633 SL Kapoor vs Jagmohan and others 1981 1 SCC 746 Maneka Gandhi vs Union of India 1978 2 SCR 621 at pages 674 681 and Bengal Immunity Co Ltd vs The State of Bihar and others and 623 referred to
31 Section 407 of the Criminal Procedure Code was subject to over riding 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 Judge60D E 32 Article 1341b of the Constitution 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 that where power to withdraw is restricted it can be widened by virtue of Article 1341b of the Constitution
67B C 33 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
67C 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 tb itself could not have acquired larger jurisdiction
The fact that the objection was not raised before this Court gave directions on 16th February 1984 cannot amount to any waiver
161F G 8 Ledgard vs Bull 131 A 134 Meenakshi Naidoo vs Subramaniya A Sastri 141 A 160 referred to
34 The Parliament did not grant to the Court the jurisdiction to transfer a case to the High Court
However as the superior Court is deemed to have a general jurisdiction the law presumes that the Court acted within jurisdiction
60G In the instant case the presumption cannot be taken firstly because the question of jurisdiction was not agitated before the Court secondly these directions were given per incuriam 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 the 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
60H61A B Kuchenmeister vs Home office  Attorney General vs Herman James Sillam 1864 10 HLC 703 and Issacs vs
Robertson 1984 3 AIR 140 referred to
Jurisdiction and Illegality by Amnon Rubinstein 1965 Edn
referred to
41 Per incuriam are those decisions given in ignorance or forget fulness of some inconsistent statutory provision or 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
If a decision is given per in curiam the Court can ignore it
52A B 53G Morelle vs Wakeling   State of Orissa vs The Titaghur Paper Mills Co Ltd  and Bengal Immunity Co Ltd vs State of Bihar  623 referred to
In the instant case when this Court gave directions on 16th February 1984 for disposal of the case against the appellant by the High Court it was oblivious of the relevant provisions of the law and the decision in Anwar Ali Sarkar s case which is a binding precedent 51G H 42 A Full Bench or a Constitution Bench decision was binding on the Constitution Bench because it was a Bench of seven Judges
There is 9 a hierarchy in this Court itself where larger Benches over rule smaller Benches which is the crystallised rule of law
52EF State of West Bengal vs Anwar Ali Sarkar   Nattulal vs Radhe Lal   Union of lndia and Anr
vs KS
Subramaniam  at p 92 State of UP vs Ram Chandra Trivedi  at 473 Halsbury s Laws of England 4th Edn
26 page 297 para 578 and page 300 relevant notes on 811 and 15 Dias on Jurisprudence 5th Edn
pages 128 and 130 Young vs Bristol Aeroplane Co Ltd at 300 Moore vs Hewitt at 272A Penny vs Mcholas and Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra  referred to
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 the Court precluded the exercise of power under section 407 of the Code
There was no argument no submission and no decision on this appeal at all
There was no prayer in the appeal which was pending before this Court for such directions
59D E The order of this Court was clearly per incuriam
The Court was not called upon to 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 over ridden in the manner sought to be followed as a consequential direction of this Court
This Court did not have jurisdiction to transfer the case to itself
That will be evident from an analysis of different provisions of the Code as well as the 1952 Act 50C D Therefore in view of the clear provisions of section 72 of the Act of 1952 and Articles 14 and 21 of the Constitution these directions were legally wrong
52C 43 Though the previous statute is referred to in the other judgment delivered on the same date in connection with other contentions section 71 was not referred to in respect of the impugned directions
Hence these observations were indubitably per incuriam
66A Miliangos vs George Frank Textiles Ltd at 821 referred to
This Court is not powerless to correct its error which has the 10 effect of depriving a citizen of his fundamental rights and more so the A 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
54A B Powers of review can be exercised in a petition file 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
54B C The Supreme Court has the power to review either under Article 137 or suo motu the directions given by this Court
62E Prem Chand Garg vs Excise Commissioner UP Allahabad 1963 Suppl1 SCR 885 Naresh Shridhar Mirajkar and others vs State of Maharashtra and another  and Smt
Ujjam Bai vs State of UP 1963 1 SCR 778 Kailash Nath vs State of UP AIR 1957 SC 790 PSR Sadhananatham vs Arunachalam   Suk Das vs Union Territory of Arunachal Pradesh 1986 2 SCC 401 Asrumati Devi vs Kumar Rupendra Deb Raikot and others   Satyadhyan Ghosal and others vs Smt
Deorajin Debi and another   Sukhrani dead by LRs
and others vs Hari Shanker and others  and Bejoy Gopal Mukherji vs Pratul Chandra Ghose  referred to
It is also well settled that an elementary rule of justice is that no party should suffer by mistake of the Court
63B Sastri Yagnapurushadji and others vs Muldas Bhudardas Vaishya and another   Jang Singh vs Brijlal  Bhajahari Mondal vs
The State of West Bengal  at 1284 1286 and Asgarali N Singaporawalle vs The State of Bombay  at 692 referred to
It 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
Therefore 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
56C D The directions have been issued without observing the principle of audi alteram partem53D 11 This Court is not debarred from re opening this question and giving proper directions and correcting the error in the present appeal
53C The appellant should not suffer on account of the direction of this Court based upon an error leading to conferment of jurisdiction
53B 7
The principle of finality on which Article 145e proceeds applies to both judgments and orders made by the Supreme Court
But directions given per incuriam 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
68F G In the instant case this Court is correcting an irregularity committed by the 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
69C D Issacs vs Robertson and Re Recal Communications Ltd Case  referred to
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 the act a nullity59H 91 Four valuable rights 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
iii The 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
The right of the appellant under Article 14 regarding equality 12 before the law and equal protection of law 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
60A C62A B State of West Bengal vs Anwar Ali Sarkar  relied on
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 without hearing the appellant though the order was passed in the presence of the counsel for the appellant these are bad
62B Dl It is proper for this Court to act ex debito justitiae in favour of the fundamental rights of the appellant
62E Nawabkhan Abbas Khan vs The State of Gujarat  referred to
92 There was prejudice to the accused in being singled out as a special class of accused for a special dispensation witbout any room for any appeal as of right and without power of revision to the High Court
67G Romesh Chandra Arora vs The State at 927 distinguished
93 The trial even of person holding public office though to be made speedily must be done in accordance with the procedure estab lished 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 and any deviation even by a judicial direction will be negation of the rule of law
68D E By judicial direction the rights and previliges of the accused have been curtailed without any justification in law
 68B State of West Bengal vs Anwar Ali Sarkar  relied on
13 Re Special Courts Bill 1978 referred to
94 The right of appeal under section 374 of the Cr
PC is confined only to cases decided by the High Court in its Letters Patent jurisdiction which in terms is extraordinary original criminal jurisdiction  under clause 27 of Letters Patent
63F 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 Notes1089People insurance Co Ltd vs Sardul Singh Caveeshgar  Ors
J AIR 1961 Punj
87 and PP Front New Delhi vs K K Birla
referred to
95 By the time the 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
64C 10
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
66C Sussex Peerage Claim  at 143 referred to
Cross Statutory Interpretation p 36
In view of the specific language used in section 7 of the 1952 Act it is not necessary to consider 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
66B 11
No man is above the law but at the same time 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
71B This Court in its anxiety to facilitate the parties to have a speedy trial gave direction on 16th February 1984 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
71B C 14 By reason of giving the impugned directions 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
71C D 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 otherwise the injustice noticed will remain forever a blot on justice
71D 121 The basic fundamentals of the administration of justice are simple
No man should suffer because of the mistake of 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
If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied
72B C 122 The maxim Actus Curiae Neminem Gravabit An act of the Court shall prejudice no man is founded upon justice and good sense and affords a safe and certain guide for the administration of the law
71E Alaxander Rodger vs The Comptoir Dlescompte De Paris Cham Reports Vol
III 1869 71 p 465 at 475 referred to 13
Purity of public life is one of the cardinal principles which t 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
73B Even if the accused has been wronged if he is allowed to be left in doubt that would cause more serious damage to him
Public confidence in public administration should not be eroded any further
One wrong cannot be remedied by another wrong
73B The legal wrong that has been done to the appellant should be remedied and right should be done
In doing so no more further injury should be caused to the public purpose
73C The impugned directions were in deprival of the Constitutional rights and contrary to the express provisions of the Criminal Law 15 Amendment Act 1952 in violation of the principles of natural justice and 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
69F 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 there is nothing which detracts the power of the Court to review its judgment ex debito justitiae in case injustice has been caused
No Court however high has jurisdiction to give an order unwarranted by the Constitution
70A B Ittavira Mathai vs VarkeP Varkey and others  referred to
Bhatia Cooperative Housing Society Ltd vs DC Patel  at 190 distinguished
Since this Court infringed the Constitutional safeguards granted to a citizen or to an accused in giving the directions and injustice results therefrom it is just and proper for the Court to rectify and recall that injustice in the peculiar facts and circumstances of this case
Therefore all the proceedings in the matter subsequent to the directions of this Court on February 16 1984 are set aside and quashed and the trial should proceed in accordance with law that is to say under the Act of 1952
70C73D E RS Nayak vs AR Antulay   AR Antulay vs Ramdas Sriniwas Nayak and another   Abdul Rehman Antulay vs Union of India and others etc  at 483 Kailash Nath vs State of UP AIR 1957 SC 790 Sukdas vs Union Territory of Arunachal Pradesh Discretion to Disobey by Mortimer R Kadish and Sanford H Kadish pages 111 and 112 referred to
Per Ranganath Misra J Concurring 14
Section 71 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
As long as section 7 of the Amending Act of 1952 holds the field it was not open to any court including the Apex Court to act contrary to section 71 of the Amending Act81E F 16 State of West Bengal vs Anwar Ali Sarkar  referred to
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 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 because such a transfer would not contravene the mandate of section 71 of the Amending Act of 1952
While that may be so the provisions for transfer do not authorise 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
This Court did not possess the power to transfer the proceedings from the Special Judge to the High Court
81G H82A Raja Soap Factory vs SP Santharaj  referred to
161 It is the settled position in law that jurisdiction of courts comes solely from the law of the land and cannot be exercised other wise
77E 162 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
77G 17
By the change of forum of trial the accused has been pre judiced
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 a 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
83H 84A B 18
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 Judges of this Court obviously did not take note of the special provisions In section 71 of the 1952 Act
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
82E F 17 19
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 proceedings the direction of the Constitution Bench on 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 he binding on this Court as well and cannot be interfered with after attaining finality
84C D 201 It is a well settled position in law that an act of the court should not injure any of the suitors
84F Alexander Rodger vs The Comptori D Escompte De Paris 1871 3 PC 465 referred to
Once it is found that the order of transfer by this Court was not within jurisdiction by the direction of the transfer of the proceedings made by this Court the appellant should not suffer
85B 203 This being the apex Court no litigant has any opportunity of approaching any higher forum to question its decisions
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
A mistake of the Court can be corrected by the Court itself without any fetters
In the present situation the Court s inherent powers can be exercised to remedy the mistake
87F88B C Gujarat vs Ram Prakash  Alexander Rodger vs The Comptori D Escompte De Paris 1871 3 PC 465 and Krishna Deo vs Radha Kissan   Debi vs Habib lLR 35 All 331 and Murtaza vs Yasin
AIR 191 PC 857 referred to
204 The injustice done should be corrected by applying the principle actus curiae neminem gravabit an act of the court shall prejudice no one88H 205 To err is human
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
89B 21
If a mistake is detected and the apex Court is not able to 18 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
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 status or influence of the accused cannot stand in the way as a bar to the making of that order
89F G 22
Finality of the orders is the rule
By 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
Nn strait jacket formula can be laid down for judicial functioning particularly for the apex Court
The apprehension that the decision to recall the earlier 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
This Court is 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
87H 90A B 23
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 be taken as a review petition
87E 24
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
85C Naresh Chandra Mirajkar  Ors
vs State of Maharashtra Prem Chand Garg vs Excise Commissioner UP Allahabad referred to
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 19 it must have gone only before a Bench of five with those two learned Judges
87D E 26
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 this Court is sitting as a Bench of Seven this Court is not entitled to reverse the decision of the Constituffon Bench
89B C 27
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
89C In the instant case the appellant is therefore 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
89D Per Oza J Supplementing 28
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
90F 29
No doubt a judgment or an order passed by this Court will not be open to a writ of certiorari even if an error is apparent
But at the same time there should be no hesitation in correcting an error in exercise of inherent jurisdiction if it comes to the notice of the Court
90D E In the instant case it is this error which is sought to be corrected although it is being corrected after long lapse of time
90F Per RayJConcurring 20 30
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 and the court cannot confer a jurisdiction on itself which is not provided in the law and judicial order of this Court is not Emenable to a writ of certiorari tor correcting any error in the judgment
However since the act of the court should not injure any of the suitors the error in question is sought to be corrected
after a lapse of more than three years
90H91A B Per Venkatachaliah J Dissenting 311 The exclusiveness of jurisdiction uf the special judge under section 71 of 1952 Act 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 section 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
108D E Thomas vs Collins  referred to
312 The earlier decision proceeded on a construction of section 71 of the Act and section 407 of Cr
This bench does not sit in appeal over what the five Judge Bench said and proclaim how wrong they were
This Bench is simply not entitled to embark at a later stage upon an investigation of the correctness of the very decision
The same bench can of course reconsider the matter under Article 137
321 The expression jurisdiction or the power to determine is a verbal cast of many colours
In the case of a Tribunal an error of law might become not merely an error m 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
102C 322
In relation to the powers of superior courts the familiar distinction between jurisdictional issues and adjudicatory issues approts priate to Tribunals of limited jurisdiction has no place
102A 323 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
102B 21 324 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
102D Mallikarjun vs Narhari 1900 27 IA 2 10 referred to
Anismatic Ltd vs Foreign Compensation Commission  distinguished
325 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 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
102G103A 326 The superior court has jurisdiction to determine its own jurisdiction and an error in that determination does not make it an error of jurisdiction
103B Holdsworth History of English Law Vol
6 page 239 and Rubinstein Jurisdiction and Illegality referred to
Re Racal Communications Ltd  and Issac vs Robertson referred to
327 Superior courts apart even the ordinary civil courts of the land have jurisdiction to decide questions of their own jurisdiction
105H It would 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
106E 33
A judgment inter parties is final and concludes the parties
106F Re Hastings No 3  Daryao vs State of UP   Trilok Chand vs HB Munshi and 22 Shiv Nandan Paswan vs State of Bihar   at 343 relied on 341 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 the High Court from a Special Judge such a law enabling withdrawal would not prima facie be bad as violation of Article 14
114G H 115A 342 No doubt the fundamental right under Article 14 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
114D F 343 The five judge bench in the earlier case has held that such a transfer is permissible under law
That decision had assumed finality
The appeal to the principle in Anwar Ali s Sarcar s case in such a context would be out of place
115A State of West Bengal vs Anwar Ali Sarkar  distinguished
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 pronouncements
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
115C D 36
The plea that transfer of the case to the High Court involves the elimination of the appellant s right of appeal to the High Court 23 which he would otherwise have and that the appeal under Article 136 of the Constitution as of right cannot be accepted in view of section 374 Cr PC which provides such an appeal as of right when the trial is held by the High Court
117A B 37
Directions for transfer were issued on 1621984 in the open court in the presence of appellant s counsel at the time of pronouncement of the judgment and counsel had the right and the opportunity of making submission to the court as to the permissibility or otherwise of the transfer
After the directions were pronounced and before the order was signed though there was opportunity for the appellant s counsel to make submission in regard to the alleged illegality or impropriety of the directions appellant did not utilise the same
That apart even after being told by two 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
115F G H116A B Therefore where 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
116B 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
116F R vs Secretary of State for Home Deptt
ex parte Mughal  referred to
381 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 discharge 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 over turned
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 over 24 ruled by a larger bench the efficacy and binding nature of the adjudication expressed in the operative order remains undisturbed interparties
119B D 382 Even if the earlier decision of the five judge bench is perincuriam the operative part of the order cannot be interfered with in the manner now sought to be done
That apart the five judge bench gave its reason
The reason may or may not be sufficient
There is advertence to section 71 of the 1952 Act and to exclusive jurisdiction created thereunder
There is also reference to section 407 of the Criminal Procedure Code
119D E 391 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 depend 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
101D E 392 However motions to set aside the judgments are permitted where a judgment was rendered in ignorance of the fact that u necessary party had not been served at all and was wrongly shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented or where a judgment was obtained by fraud and it tended to prejudice a non party as in the case of judgments in rem such as for divorce or jactitation or probate etc
even a person not eo nomine a party to the proceedings or where a party has had no notice and a decree is made against him in which case the party is said to become entitled to relief ex debito justitiae on proof of the fact that there was no service since there is no trial at all and the judgment is for default
110C F Cases of such frank failure of natural justice are obvious cases where relief is granted as of right
111A Where a person is not actually served out but is held erroneously to have been served he can agitate that grievance only in that forum or in any further proceeding therefrom
111A Issac vs Robertson distinguished
Rajunder Narain Rae vs Bijai Govind Singh 2 MIA 181 referred to
25 DM Gordan Actions to set aside judgment 1961 77 Law quarterly Review 358 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
111C D 40
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 finality of the decisions of Other division benches
108H 411 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 implict 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 e that is already invested
120F G 412 If the decision suffers from an error the only way to correct it is to go in Review under Article 137 read with order 40 Rule 1 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
109A In the instant case the remedy of the appellant is recourse to Article 137 no where else
This is both in good sense and good law
120G Judicial proceedings of this Court are not subject to writ jurisdiction thereof
118H Naresh Sridhar Mirajkar  Ors
vs State of Maharashtra  Anr followed
Prem Chand Garg vs Excise Commissioner UP  referred to
Kadesh  Kadesh Discretion to Disobey 1973 edn
P 111 referred to
26 42
The maxim Actus Curiae Neminem Gravabid had 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 maximum 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 this maxim
120B C 43
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 administration of justice by Courts
120E This Court had therefore the jurisdiction and power to with draw and transfer the cases from Special Judge to the High Court and the directions for trial of the offences by a Special Judge are not void and these directions could not be challenged in a collateral attack
This Court had not created a new jurisdiction and usurped legislative power violating the basic tenet of doctrine of separation of powers
99C F 114D 106E 44
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
98B D Choraria vs Maharashtra  referred to
In the instant case the appellant cannot be heard to complain
Of the so called co conspirators some have been examined already as pro 27 secution witnesses some others proposed to be so examined and two others had died in the interregnum
The appeal on the point has no substance and would require to be dismissed
98G Per Ranganathan J partly concurringdissenting 451 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
In view of non obstante clause also it cannot be held that the provisions of section 407 of the 1973 Cr
PC will override or even operate consistently with the provisions of the 1952 Act
Similarly the power of transfer contained m clause 29 of the letters Patent of the High Court cannot be exercised in a manner not contemplated by section 71 of the 1952 Act
131D E 452 A power of transfer postulates that the court to which transfer or withdrawal is sought is competent to exercise jurisdiction over the case
130F Raja Soap Factory vs Shantaraj  1965 2 SCR relied on
453 The power of transfer contained in the Code of Criminal Procedure cannot be availed of to transfer a criminal case from a Special Judge to any other criminal court or even to 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
130E F Gurcharan Das Chadha vs State of Rajasthan 1966 2 SCR referred to
454 Not all the judges of the High Court but only those elevated from the State subordinate judiciary would fulfil 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 such is not the atleast not the normal contemplation of the Act
The scheme of the Act in particular the provisions contained in sections 83A and 9 militate against this concept
126C E Hence in the instant case apart from the fact that 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 28 conferment of a jurisdiction to try this case on a High Court Judge as a Special Judge
126F 455 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
Effect is only 13 being given to the 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
132D E 461 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  158A B M L Sethi vs Kapur  1973 I SCR 697 referred to
462 The Superior Courts with unlimited jurisdiction 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
158B C  Dhirendera Kumar vs Superintendent 1955 I SCR 224 Kiran Singh vs Chaman Paswan AIK   Anisminic Ltd vs Foreign Compensation Commissioner 1969 2 AC 147 Badri Prasad vs Nagarmal 1959 1 Supp
SCR 769 Surajmul Nagarmul vs Triton Insurance Co Ltd 1924 LR 52 IA 126 Balai Chandra Hazra vs Shewdhari Jadhav   Ledgard vs Bull LR 13 IA 134 Meenakshi Naidu vs Subramaniya Sastri LR 14 IA 140 Sukhrani vs Hari Shankar   Re Recal Communications Ltd  and lssacs vs Robertson referred to
In the present case the order passed is not one of patent lack of jurisdiction
Though the direction in the order dated 1621984 cannot be justified by reference to Article 142 of the Constitution of section 407 of the 1973 Cr
PC that is not an incontrovertible position
It was 29 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 it was inclined to hold differently
The mere fact that the direction was given without an elaborate discussion cannot render it vulnerable to such review 
158D F 47
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 this Court should not declare that an order passed by a five Judge Bench is wrong and annul it
The present case cannot be brought within the narrow range of exceptions which calls for such interference
166E The direction issued by this Court in the impugned order cannot be said to be 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 issue is a totally different thing
167E 481 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 envisage 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 to inter se or from a court subordinate to a High Court to the High Court is within the jurisdiction of the appropriate High Court
133F G 482 The powers of the Supreme Court in disposing of an appeal or revision are circumscribed by the scope of the proceedings before it
133H In the instant case the question of transfer was not put in issue before the Supreme Court
The 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 envisage an order of the type presently in question
134A C D KM Nanavati vs The State of Bombay  distinguished
30 483 If the provisions of the 1952 Act read with Article 139 A and sections 406 407 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
In the circumstances of the case the Supreme Court cannot issue the impugned direction in exercise of the powers under Article 142 or under section 407 available to it as an appellate court
l34F Hari vs Emperor AIR 1935 PC 122 referred to
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
Therefore this Court was in error when it directed that the trial of the case should be before a High Court Judge in consequence of which the appellant 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
135E GI 491 Section 407 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
136E F3 492 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
136FJ 493 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 or equal or superior jurisdiction
136G The accused will therefore suffer no prejudice by reason of the 31 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 interests 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
137A B 494 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
137E State vs Anwar Ali Sarkar   distinguished
Kathi Raning Rawat vs The State of Saurashtra  Re Special Courts Bill 1978 and Shukla vs Delhi Administration   referred to
l Where a case is withdrawn and tried by the Court the High Court will be conducting the trial in the exercise of its extraordinary original criminal jurisdiction
Here 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
139F H 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 Peoples Insurance Co Ltd vs Sardul Singh Caveeshar and others AIR 1961 Punjab 87 and People s Patriotic Front vs K K Birla and others  1984 Crl
LJ 545 referred to
502 In a withdrawn case 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 PC and 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 will be final with only a chance of obtaining special leave under Article 136 is totally unfounded
The Supreme Court will consider any petition presented under Article 136 in the light of the in built requirements of Article 21 and dispose it of as if it were itself a petition of appeal from the judgment
Therefore 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 in 32 fringement of Article 21 in such cases is therefore unfounded
140B F Sadanathan vs Arunachalam  distinguished
503 The court to which the case has been transferred is a superior court and in fact the High Court
However the High Court Judge is not a person to whom the trial of the case can be assigned under s71 of the 1952 Act
The circumstances 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 normal forum and the rights available under the normal procedure
131G H Surajmal Mohta vs Vishwanath Sastry 1955 1 SCR referred to
504 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 and the right of having two courts subordinate court and the High Court adjudicate upon his contentions before bringing the matter up in the Supreme Court
Though these are not such caps 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 statue in preference to the other
132A B 511 t It is true that the audi altarem partem rule is a basic requirement of the rule of law
But the degree of compliance with this rule and the extent or consequences flowing from failure to do so will vary from case to case
168B Nawabkhan Abbaskhan vs State   referred to
In the instant case the appellant had been given no chance of being heard before the impugned direction was given and it cannot be said whether the Bench would have acted in the same way even if he had been given such opportunity
However in the circumstances of the case
this is not a fit case to interfere with the earlier order on that ground
167H 168A 512 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 live been set right by immediate action
169C 33 R vs Secretary of State for Home Department ex parte Mughal  referred to
The direction of 1621984 cannot be said to have infringed the fundamental rights of the appellant or caused any miscarriage of justice
The appellant did know on 1621984 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 it was likely to be
That apart several opportunities were available for the appellant to set this right
He did not move his little finger to obtain a variation of this 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 have been recorded and numerous exhibits have been admitted as evidence
Though the trial is only at the stage of the framing of charges the trial being according to the warrant procedure a lot of evidence has already gone in and if the directions of this Court are re called it would 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
168G H 169A B 521 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
163C 522 Where a mlstake 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 corners of the procedural law in which event there can be 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 render this Court powerless to give relief
163D E Ghulam Sarwar vs Union of India  Soni Vrijlal Jethalal vs Soni Jadavji Govindji AIR 1972 Guj
148 Jang Singh vs Brij Lal  at p 159 Bhagat Ram vs State  and State vs Tara Chand 1973 SCC Cr 774 referred to
34 523 lt may not be possible or prudent to lay down comprehensive list of defects that will attract the ex debito justiae relief
163E 524 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 in Justice 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
163F Issac vs Robertson referred to
525 However such power has to be exercised in the rarest of rare cases and 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 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
163G H 164A Bengal Immunity Company Ltd vs The State of Bihar and ors and Sheonandan Paswan vs State of Bihar  Ors   referred to
The power of review is conferred on this Court by Article 137 of the Constitution
It is subject not on to the provisions of any law made by Parliament but also to rules made by this Court under article 145
142H 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
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 having regard to the circumstances of the case there is hardly any reason to condone the delay in the prayer for review
144A B143B147H The appellant was alive to all his present contentions
At least when the writ petition was dismissed as an inappropriate remedy he should have at once moved this Court for review
148A 35 That apart even if the Court is inclined to condone the delay the application will have to be heard as far as possible by the same Judges who disposed of the earlier matter
148B 54
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 opinions 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
Such a situation is not present in the instant case
167F G 55
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
155G H Prem Chand Garg vs Excise Commissioner 1963 Supp 1 SCR 885 explained and distinguished
Naresh Shridhar Mirajkar and others vs State of Maharashtra and another
relied on