Case: Kamlesh Kumar And Ors Vs. State Of Jharkhand And Ors

Court observed in paragraph 15 which reads as follows:- “15. …. The point which we wish to emphasise, however, is that a party to a proceeding cannot as a matter of right come to this Court for revision of any order passed by the lower Court, but it is a matter of practice that such applications are entertained by this Court as a matter of expediency. But no party has any vested right either in procedure or in practice.” 17. The First Schedule to Cr.P.C. deals with the Classification of Offences. Part-1 thereof deals with the offences under the Indian Penal Code, Part-II deals with classification of offences against other laws, which would include offences under laws such as FERA. The petitioners were being prosecuted under Section 56 of FERA, wherein the maximum punishment that could be awarded was up to seven years. The second entry of this Part-II laid down that such offences were triable by Magistrate of first Class, provided those offences were cognizable offences. As noted earlier, Section 62 of FERA made the offence under Section 56 non-cognizable. Besides, Section 61 (1) of FERA stated that ‘it shall be lawful’ for the Magistrate to pass the necessary sentence under Section 56. It does not state that the Magistrate alone is empowered to pass the necessary sentence, in which case the proceeding cannot be transferred from his Court. This provision is not like the one in the case of A.R. Antulay (supra) where under Section 7(1) of Criminal Law Amendment 1952 Act, the offence was ‘triable by special judge only’. In the instant case it was merely lawful for the Magistrate to try the offences under Section 61, but the Court of Magistrate was not a court of exclusive jurisdiction as in Antulay’s case. The offence was a non-cognizable one, and therefore it was not mandatory that it ought to have been tried only by the Magistrate of the First Class. Thus the petitioner could not claim that the Magistrate had the special jurisdiction to try the offence, and that the State could not transfer the case to the Sessions Judge. In view of what is stated above, it cannot be said that the Magistrate’s Court had an exclusive jurisdiction to try the cases relating to violations of the provisions of FERA, and those cases could not be transferred to the Special Judge. In the present case the accused were common, many of the witnesses would be common, and so also their evidence. The administrative power of the High Court in such a situation to effect transfer has been upheld in the case of Ranvir Yadav (supra), and there is no reason for this Court to take a different view in the facts of the present case.18. The petitioner had relied upon the judgment of a Division Bench of Delhi High Court in the case of A.S. Impex Limited (supra), on the question of transfer of a proceeding. Mr. Malhotra pointed out that although the judgment in Ranvir Yadav (supra) was brought to the notice of the Division Bench in that matter, the Division Bench had erroneously held that the reliance thereon to be a ‘misplaced’ one, as can be seen from the sentence at the end of paragraph 12 of that judgment. This judgment has been distinguished and found to be not laying down a good law by another Division Bench of Delhi High Court in Mahender Singh v. High Court of Delhi and Anr. reported in 2009 (151) Company Cases 485 (Delhi). In that matter, the Court was concerned with transfer of prosecutions under Securities and Exchange Board Act, 1992 from the Magistrate’s Court to Court of Sessions, and the High Court has held it to be valid and permissible. The Division Bench in Mahender Singh (supra) has in terms held that reliance on the judgment in A.R. Antulay (supra) to oppose such transfer was of no help, and rightly so. There is no difficulty in stating that A.S. Impex Limited (supra) does not lay down the correct proposition of law.19. The High Court does have the power to transfer the cases and appeals under Section 407 of the Cr.P.C. which is essentially a judicial power. Section 407 (1) (c) of Cr.P.C. lays down that, where it will tend to the general convenience of the parties or witnesses, or where it was expedient for the ends of justice, the High Court could transfer such a case for trial to a Court of Sessions. That does not mean that the High Court cannot transfer cases by exercising its administrative power of superintendence which is available to it under Article 227 of the Constitution of India. While repelling the objection to the exercise of this power, this Court observed in paragraph 13 of Ranvir Yadav (supra) as follows:- “13. We are unable to share the above view of Mr. Jethmalani. So long as power can be and is exercised purely for administrative exigency without impinging upon and prejudicially affecting the rights or interests of the parties to any judicial proceeding we do not find any reason to hold that administrative powers must yield place to judicial powers simply because in a given circumstance they coexist……” 20. For the reasons stated above, there is no substance in the objections raised by the petitioners. The High Court has looked into Section 407 of Cr.P.C., referred to Articles 227 and 235 of the Constitution of India, and thereafter in its impugned judgment has observed as follows:- “Having perused Section 407 Cr.P.C. and Article 227 and 235, I have no hesitation to hold that this Court either in the administration side or in the judicial side has absolute jurisdiction to transfer any criminal cases pending before one competent Court to be heard and decided by another Court within the jurisdiction of this Court. This Court in its administrative power can issue direction that cases of particular nature shall be heard by particular court having jurisdiction.” In view of what is stated earlier,

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The First Schedule to Cr.P.C. deals with the Classification of Offences. Part-1 thereof deals with the offences under the Indian Penal Code, Part-II deals with classification of offences against other laws, which would include offences under laws such as FERA. The petitioners were being prosecuted under Section 56 of FERA, wherein the maximum punishment that could be awarded was up to seven years. The second entry of this Part-II laid down that such offences were triable by Magistrate of first Class, provided those offences were cognizable offences. As noted earlier, Section 62 of FERA made the offence under Section 56 non-cognizable. Besides, Section 61 (1) of FERA stated that ‘it shall befor the Magistrate to pass the necessary sentence under Section 56. It does not state that the Magistrate alone is empowered to pass the necessary sentence, in which case the proceeding cannot be transferred from his Court. This provision is not like the one in the case of A.R. Antulay (supra) where under Section 7(1) of Criminal Law Amendment 1952 Act, the offence was ‘triable by special judgeIn the instant case it was merely lawful for the Magistrate to try the offences under Section 61, but the Court of Magistrate was not a court of exclusive jurisdiction as incase. The offence was a non-cognizable one, and therefore it was not mandatory that it ought to have been tried only by the Magistrate of the First Class. Thus the petitioner could not claim that the Magistrate had the special jurisdiction to try the offence, and that the State could not transfer the case to the Sessions Judge. In view of what is stated above, it cannot be said that theCourt had an exclusive jurisdiction to try the cases relating to violations of the provisions of FERA, and those cases could not be transferred to the Special Judge. In the present case the accused were common, many of the witnesses would be common, and so also their evidence. The administrative power of the High Court in such a situation to effect transfer has been upheld in the case of Ranvir Yadav (supra), and there is no reason for this Court to take a different view in the facts of the present case.18. The petitioner had relied upon the judgment of a Division Bench of Delhi High Court in the case of A.S. Impex Limited (supra), on the question of transfer of a proceeding. Mr. Malhotra pointed out that although the judgment in Ranvir Yadav (supra) was brought to the notice of the Division Bench in that matter, the Division Bench had erroneously held that the reliance thereon to be aone, as can be seen from the sentence at the end of paragraph 12 of that judgment. This judgment has been distinguished and found to be not laying down a good law by another Division Bench of Delhi High Court in Mahender Singh v. High Court of Delhi and Anr. reported in 2009 (151) Company Cases 485 (Delhi). In that matter, the Court was concerned with transfer of prosecutions under Securities and Exchange Board Act, 1992 from theCourt to Court of Sessions, and the High Court has held it to be valid and permissible. The Division Bench in Mahender Singh (supra) has in terms held that reliance on the judgment in A.R. Antulay (supra) to oppose such transfer was of no help, and rightly so. There is no difficulty in stating that A.S. Impex Limited (supra) does not lay down the correct proposition of law.19. The High Court does have the power to transfer the cases and appeals under Section 407 of the Cr.P.C. which is essentially a judicial power. Section 407 (1) (c) of Cr.P.C. lays down that, where it will tend to the general convenience of the parties or witnesses, or where it was expedient for the ends of justice, the High Court could transfer such a case for trial to a Court of Sessions. That does not mean that the High Court cannot transfer cases by exercising its administrative power of superintendence which is available to it under Article 227 of the Constitution ofHigh Court could have exercised its judicial power of transfer under Section 407 of the Code (if called upon to do so) and it could also have exercised its administrative power of transfer under Article 227 of the Constitution, which it did, as is evident from the letter dated 6th May 2002 issued by the Registrar General of the High Court of Jharkhand to the Secretary to the Government, Law (Judl.) Department, Government of Jharkhand. The fact that for an administrative exigency, the High Court decided to exercise its plenary administrative power does not per se lead to the conclusion that the transfer of the case from the Magistrate to the Special Judge was unlawful. The legality of the action cannot be called in question in this case since no prejudice has been caused to the petitioners by such athe revisional power of a superior court actually enables it to correct a grave error, the existence of that power does not confer any corresponding right on a litigant. This is the reason why, in a given case, a superior court may decline to exercise its power of revision, if the facts and circumstances of the case do not warrant the exercise of its discretion. This is also the reason why it is felicitously stated that a revision is not a right but only ale to a party. If the matter is looked at in this light, the transfer of a case from a Magistrate to a Special Judge does not take away this procedural facility available to the petitioners. It only changes the forum and as already held above, the petitioners have no right to choose the forum in which to file an appeal or move a petition for revising an interlocutory order.