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

Dr. K.M. Prasad, father of the petitioners, was working earlier as the Director of Animal Husbandry department, Government of Bihar. He is being prosecuted along with some others by the Central Bureau of Investigation (C.B.I.) in the Court of Special Judge at Ranchi for conspiracy to defraud the State Government to the extent of Rs.7,09,92,000/- during 1980-90 on the basis of fake allotment letters purportedly issued by him for the purchase of medicines. It is claimed that fake supplies were shown as made by the suppliers, and the money withdrawn towards such fake allotments was misappropriated by the accused persons.3. During the course of investigation it was realized that the amount involved was much more, i.e. Rs.19,81,66,460/- approximately, and that the accused Dr. K.M. Prasad had acquired huge movable as well as immovable assets in his own name, and in the name of his children and others at different places. The said Dr. K.M. Prasad and his children were also therefore prosecuted in the case arising out of this investigation, and charges have already been submitted by the CBI against them, and the cases are pending in the court of Special Judge CBI at Ranchi.4. It was further revealed during the course of investigation, that Mr. Kamlesh Kumar and three others, children of Dr. K.M. Prasad, had received huge amounts of Foreign Exchange over U.S. $3,15,000 and British £1000. It was suspected that these remittances were not actually genuine gifts as claimed by them, but were amounts arranged by certain persons involved in the animal husbandry scam in violation of the provisions of FERA. It was alleged that they had violated the provisions of Section 9(1) (a) and (b) and 64(2) of the FERA, and rendered themselves liable to be prosecuted under Section 56 of the said Act.5. The Enforcement Director accordingly filed cases against the petitioners before the Chief Judicial Magistrate Ranchi for taking cognizance under Section 56 of FERA. The Enforcement Director however, realized that many of the offenders in the FERA cases were also accused in the cases which were pending before the Special Judge in the Fodder scam cases, and the documents relied upon and the witnesses to be examined were common. The Director, therefore, wrote to the State Government on 25.1.2002 seeking to have these cases tried by the same court. Accordingly, the Law Secretary of the Government of Jharkhand wrote to the Registrar General of the High Court on 2.3.2002 and on 25.4.2002. Thereafter, the full Court of Jharkhand High Court passed a resolution on 25.4.2002, to empower the Special Judge, CBI Animal Husbandry scam cases, to try the cases of FEMA, 1999. (This is because in the meanwhile, from 1.6.2000, FERA had been replaced by the Foreign Exchange Management Act, 1999 – FEMA for short). Accordingly a notification was issued by the State of Jharkhand on 17.5.2002, empowering the Special Judge CBI (AHD Scam cases) to try the cases under FEMA. Pursuant to that notification, the Complaint filed on 23.5.2002 before the Chief Judicial Magistrate, Ranchi was transferred by order dated 31.5.2002, for trial to the court of the Learned Additional Judicial Commissioner cum Special Judge CBI (AHD Scam cases) Ranchi.6. This made the petitioners file the above referred Criminal Writ Petitions to quash the notification dated 17.5.2002. The Learned Single Judge of the Jharkhand High Court at Ranchi dismissed the said Writ Petitions by his judgment and order dated 19.7.2012. It is this order which is under challenge in the present Special Leave Petitions (Criminal).

Reasoning: 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.