A.R. Antulay V/s R.S Nayak & Anr.

 Vs R.S. NAIK & ORS DATE OF JUDGMENT29 10 1986 VENKATARAMIAH E.S.91 1986 SCC Supl. 510 JT 1986 759 1986 SCALE of the Criminal Law Amendment Act 1952 by the Govern ment of Maharashtra. The said Special Judge discharged the accused on the ground that there was no valid sanction to institute the complaint The correctness of the said Order of the Special Judge was challanged before this Court by the Complainant in appeal. That appeal was allowed and the order of discharge passed by the Special Judge was set aside on February 16 1984. The operative part of the judgment of this CourtS.C.R. 495) is found at page 557 of the Report. It reads thus "This appeal accordingly succeeds and is allowed. The ’order and decision of the learned Special Judge Shri R.B. Sule dated July 25 1983 discharging the accused in Special Case No. 282 and Special Case No. 3 83 is hereby set aside and the trial shall proceed further from the stage where the accused was discharged The accused was the Chief Minister of a premier State the State of Maharashtra By a prosecution laun 93 ched as early as on September 11 1981 his character and integrity came under a cloud Nearly 21 2 years have rolled by and the case has not moved an inch further. An expeditious trial is primarily in the interest of the accused and a mandate of Art. 21. Expeditious disposal of a criminal case is in the interest of both the prosecution and the accused Therefore special Case No. 24 of 1982 and Special Case No. 3 83 pending in the Court of Special Judge Greater Bombay shri R.B. Sule are withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court. On being so assigned the learned Judge may proceed to expeditiously dispose of the cases preferably by holding the trial from day to day In this case the following points arise for consideration 1. If an order of transfer of a criminal case which purports to violate Article 14 and Article 21 is passed against an accused person by this Court without any pleading or hearing or even consulting his wishes in that regard can he not question it by an independent petition since a review is not an adequate remedy because the petitioner in a review petition has no right of personal hearing at the stage of admission of the review petition 2. Under the Criminal Law Amendment Act 1952 an offence punishable under section 5 of the Prevention of Corruption Act or under sections 161 162 163 164 165 and 165A of the Indian Penal Code can be tried only by a Special Judge appointed under section 6 of that Act by the State Government. An order of transfer by this Court cannot be a substitute for an order of appointment to be made by the State Government under section 6 of that Act In Gurucharandas Chadha v. State of Rajasthan 2 S.C.R. 678 it is laid down that the trial by a special Judge is the sine qua non of a trial under that Act and a case can be transferred by this Court from one Special Judge to another Special Judge only. That means that all other courts including the High Court are excluded. In Bhajahari Mondal v State of West Bengal S.C.R. 1276 it is held that the trial 94 by a Judge who is not authorised to try a case amounts to an incurable illegality and the trial would be a nullity. In view of these decisions can the trial in this case proceed before a High Court Judge who is not a Special Judge It may be noted that section 7(1) of the Criminal Law Amendment Act 1952 which opens with a nonobstante clause prevails upon every provision in the Criminal Procedure Code including sections 406 and 407 which deal with the powers of transfer of criminal cases exercisable by the Supreme Court and the High Court respectively and upon every other law in force. Does not the order of transfer in this case deny the right of the accused to be tried according to the procedure established by law and is not Article 21 violated thereby 3. Has the accused in this case a remedy by way of appeal as of right under the Crimi nal Procedure Code There appears to be a reasonable doubt in this case because section 374(1) of the Code of Criminal Procedure 1973 provides for an appeal to this Court against a conviction by a High Court under its extraor dinary original criminal jurisdiction. Clause 24 of the Letters Patent of the Bombay High Court which confers extraordinary original criminal jurisdiction on the High Court refers only to cases brought before the High Court by the Advocate General any Magistrate or any other officer specially empowered by the Gov ernment in that behalf. But this case is brought by a private person. If it fails outside clause 24 of the Letters Patent the accused will have perhaps a remedy of appeal by way of special leave of this Court under Article 136 of the Constitution. Denial of even one appeal as of right may amount to violation of Article 14 arid Article 21. Does not this question require examination 4. The Criminal law Amendment Act 1952 as its preamble says is passed to provide for speedier trial Does not further speeding up of the case by transferring the case of the High Court for speedy disposal violate the principle laid down by seven learned Judges of this Court in Anwar Ali Sarkar’s case cannot an Indian citizen who had not been heard by this Court on the question of transfer complain by an independent petition before this Court before the commencement of 96 the trial that his fundamental rights under Article 14 and Article 21 are being violated even though he may have a remedy of a re stricted character like a review petition and ask for a writ of prohibition against the trial Judge’ 6. Does the degree of heinousness of the crime with which an accused is charged or his status or the influence that he commands in society have any bearing on the applicability or the construction of Article 14 or Article 21 7. If a decision of this Court is given per incuriam that is without taking note of the appropriate legal provisions can that decision be treated as a binding precedent Is it not a circumstance in jurisprudence which entitles a Court to disregard and earlier judicial precedent the accused was not given relief. He was asked to file a review petition which is restricted in character and where he would have no right of oral heating at the stage of admission or to file any other application which he may be entitled in law to file. In that situation. what is wrong in the accused who apprehends that a trial is going on against him contrary to the law and the Constitution without giving him a reasonable opportunity of being heard personally on that question as every other litigant in this Court is given except in review petitions raising the question before the Judge who is trying him or in an appeal filed before this Court against the order of the Trial Judge 9. Could the High Court not have re quested the State Government to appoint a Judge of the High Court as a Special Judge in order to implement the direction of this Court If this was possible both the order of transfer passed by this Court and the Criminal Law Amendment Act 1952 could have been satis fied by the issue of the necessary notifica tion by the Sate Government. If this 97 was possible the accused can always raise the objection to the trial of the case before a Judge of the High Court until the notification is issued by the Government appointing him as a Special Judge without in any way question ing the binding nature of the order of this Court because while the order of transfer takes care of the territorial jurisdiction of the Trial Judge a notification issued by the Government would confer the necessary compe tence on the Judge concerned. It may be noted that in Chadha’sthis Court has made this distinction between the territorial jurisdiction and the competence of the trial court There is another point to be considered in this context. Section 6(2) of the Criminal Law Amendment Act 1952 says that a person shall not be qualified for appointment as a Special Judge under that Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure. Even if the State Government wishes to appoint a High Court judge as a Special Judge it can only appoint such Judge who has filled any of these offices under the Criminal Procedure Code earlier. Justice P.S. Shah who is now trying the case was only a member of the Bar before he became a High Court Judge 10. In recent times Article 21 is being inter preted liberally and is being extended to issues which were not considered to be within the scope of Article 21. Does that Article not therfore apply with greater force in the case of those persons i.e. persons accused of criminal offences for whom that Article was primarily intended 11. Question of Judicial discipline: Recently the question of constitutional validity of certain provisions of the Punjab Pre emption Act 1913 as in force in Haryana came up for consideration before a Division Bench of two Judges 3 S.C.R. 858. The Division Bench felt that the decision in Ram Sarup’s case 98 was erroneous and needed reconsidera tion. It accordingly admitted the case issued stay orders and referred the matter to a larger Bench. Thereupon another Constitution Bench of five Judges accepted the reference overruled the view of the another Constitution Bench and declared the impunged provisions as unconstitutional. 2 S.C.C. 249). In almost all the cases references to larger Benches are made by smaller Benches where the smaller Benches do not agree with the view of a larger Bench expressed earlier. It was a smaller Bench which doubted the view in Shankari Prasad’s caseS.C.R. 89 and in Sajjan Singh’s caseI S.C.R. 938 that referred the case to a larger Bench which decided Golak Nath’s case2 S.C.R. 762. It was again a smaller Bench which did not agree with the decision in Golaknath’s case that referred the case to a larger Bench which decided the Keshvananda Bharati’s caseSupp. S.C.R 1 which overruled Golaknath’s case. In all such cases the smaller Banches had entertained the petitions and passed appropriate interim orders. In view of what is stated above can it be said that in this case the DiVision Bench which having regard to the various constitutional issues involved in it merely granted Special Leave to Appeal and issued an interim order of stay had violated rules of judicial discipline Even if all the issues are to be held against the appellant ultimate ly after hearing the appeal until that deci sion is given by this Court is it not reason able to stay the trial pending disposal of this appeal 12. If ultimately it is found in this that the proceedings before the High Court consequent upon the order of transfer are not constitutional what is the effect of that decision on all the proceedings which have gone on till now in the High Court and the decisions of this Court passed in appeals against the orders of the High Court passed at different stages in these proceedings 

Summary:   A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court.  [Case Brief] A.R. Antulay V/s R.S Nayak &amp; Anr. Case name: A.R. Antulay V/s R.S Nayak &amp; Anr. Citation: 1988 AIR 1531 Court: The Supreme Court Of India Bench: Justice Sabyasachi Mukherjee, Justice Ranganath Misra, Justice G.L. Oza, Justice B.C. Ray, Justice S. Natarajan, Justice M.N. Venkatachaliah, Justice S. Ranganathan Decided on: APRIL 29, 1988 Relevant Act/Sections: Section  21 of Criminal Procedure, 1973 and Article 21 and 142 Constitution of India, 1950    R. Antulay became Chief Minister of the State of Maharashtra on 9th June 1980. On 1st September 1981, R. S. Naik a member of opposition applied to the Governor of the State under sec 197 of the Criminal Procedure Code, 1973 and sec 6 of the Prevention of Corruption Act, 1947 for sanction to prosecute the C.M.On 11th of September, 1981, Naik filed a complaint before the Additional Metropolitan Magistrate, Bombay against the M. and other known and unknown persons for alleged offence under sections 161and 165 of the Indian Penal Code and section 5 of the Act as also under sections 384 and 420 read with sections 109 and 120B of the Indian Penal Code and his character and integrity came under a cloud. But the learned magistrate due to absence of sanction refused to take cognizance.The said order was appealed before the Bombay High Court, which held that sanction was necessary for the prosecution of the appellant and also an order in a writ petition all wired against A.R. Antulay which resulted in his resignation from the post of C.M. on 12th January, 1982. But continued as the member of legislative assembly.On 28th of July, 1982, the Governor of Maharashtra granted sanction under section 197of the Code and section 6 of the Act in respect of five items relating to three subjects only and refused sanction in respect of all other items.Finally, On 9th August, 1982 a fresh case was instituted by S. Naik against A.R. Antulay before the learned Special Judge bringing in many more allegations including those for which sanction was refused by the Governor reasoning it that the person is seized to be a C.M.The State Government on 15th of January, 1983 notified the appointment of Shri R.B. Sule as the Special Judge to try the offence. PROCEDURAL HISTORY: On 25th of July 1983, Shri R.B. Sule, Special Judge discharged R. Antulay holding that a member of the Legislative Assembly is a public servant and there was no valid sanction for prosecuting the appellant.An appeal filed by complainant under Article 136, the Constitution Bench held that a member of the Legislative Assembly is not a public servant and set aside the order of Special Judge Sule. The court also ordered that the cases against A.R. Antulay and others be transferred to the High Court Bombay withdrawing from the special judge and request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court for holding the trial from day to day, for expeditious disposal in accordance with law.An Special leave petition was filed by A.K. Antulay for S.C. Questioning the jurisdiction of the special judge to try the case in violating his Fundmental Right under Article 21 and 14 and provision of Criminal law. And also another SLP was filed against the order of special judge stating that the 79 charges against the Appellant need no sanction and a writ petition was filed questioning the validity of sec 197(1) CRPC. ISSUE BEFORE THE COURT: Whether the directions of this court in the last order were legally proper?Whether the action and the trial proceedings pursuant to those directions, are legal and valid?Can those directions be recalled or set aside or annulled in those proceedings and trial be proceeded according to CRPC? RATIO OF THE COURT: 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. The SC held thatthe Apex Court were without jurisdiction and as such void. There was no jurisdiction or power to transfer a case from the Court of the Special Judge to any High Court.The bench pointed that the directions of the Court were given per incuriam, that is to say without awareness of or advertence to the exclusive nature of the jurisdiction of the Special Court and without reference to the possibility of the violation of the fundamental rights in a case of this nature as observed by a seven Judges Bench decision in The State of West Bengal v. Anwar Ali Sarkar [1952].The court observed that following rights of the appellant have been taken away by the impugned directions; The right to be tried by a Special Judge in accordance with the procedure established by law and enacted by Parliament.The right of revision to the High Court under sec 9 of the Criminal Law Amendment Act.(The right of first appeal to the High Court under the same section.The right to move the Supreme Court under sec 136thereafter by way of a second appeal, if necessary. 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 stated by the bench. Also 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, violating Art. 21.The court held that the learned Special Judge was clearly in error in holding that M.L.A. is a public servant within the meaning of the expression in Section 12(a)and further erred in holding that a sanction of the Legislative Assembly of Maharashtra or majority of the members was a condition precedent to taking cognizance of offences committed by the accused.The Court infringed the Constitutional safeguards granted to a citizen or to an accused and injustice results therefrom. It is just and proper for the Court to rectify and recall that in justice, in the peculiar facts and circumstances of this case This case has caused us considerable anxiety. The appellant accused has held an important position in this country, being the Chief Minister of a premier State of the country. He has been charged with serious criminal offences. His trial must be in accordance with law and the procedure established by law would have to be in accordance with the 1952 Act.The apex court observed that the legal wrong that has been caused to the appellant should be remedied. Let that wrong be therefore remedied. Let right be done and in doing so let no more further injury be caused to public purpose DECISION HELD BY COURT: In this case the judgement was given by JUSTICE SABYASACHI MUKHARJEE that the appeal was Allowed by the majority among the 7 judges bench.And all proceedings to this matter subsequent to the directions of this Court on 16th February, 1984 are set aside and quashed. The trial shall proceed in accordance with law, that is to say, under the Act of 1952.