Judges: B.C. Ray, G.L. Oza, M.N. Venkatachaliah, Ranganath Misra, S. Natarajan, S. Ranganathan, Sabyasachi Mukherjee.

Facts:

The Appellant was Chief Minister of Maharashtra. Respondent sought permission from the state's governor to file a lawsuit against the Appellant under Section 197 of the Criminal Procedure Code, 1973 (Code) and Section 6 of the Prevention of Corruption Act, 1947(Act). The Respondent then filed a complaint against the appellant and others before the Additional Metropolitan Magistrate's Court in Bombay for violations of Sections 161, 165, 384, and 420, as well as Sections 109 and 120 B of the Indian Penal Code (IPC) and Section 5 of the Act. The Magistrate refused to take the cognizance unless, sanction for prosecution is given.

A Revision against the order was filed before Bombay High Court. In between the Appellant resigned from his position as Chief Minister. The High Court has rejected the revision and Respondent No. 1's request to transfer the matter from the Additional Chief Metropolitan Magistrate Court's to itself and observed that the sanction was required for the prosecution of the Appellant.

Later on, the Governor has granted sanction for three subjects. The Respondent no 1, filed a new case before the Special Judge. The judge held that a member of the Legislative Assembly is a public servant and a valid sanction is required to prosecute the Appellant and hence, discharged the Appellant.

Being aggrieved, the Respondent has filed a petition under Article 136 of Constitution before the Supreme Court. The Supreme Court ruled that the member of the legislative assembly is not a public servant and reversed the order of the Special Judge. The Supreme Court suo moto withdrew the special case from the court of a Special judge and transferred it to the Bombay High Court instead of returning it to the Special judge for disposition in accordance with the law. Hence, the matter reaches before present bench.

Issues:

(i) Whether the directions given by the Court on 16th of February, 1984 in R.S. Nayak v. A.R. Antulay, withdrawing the Special Case and transferring the same to the High Court of Bombay, is in breach of Section 7(1) of the Act and violative of Articles 14 and 21 of the Constitution and whether such directions were at all valid or legal?

(ii) Whether the interparty directives are binding even if they are against the law or violate Articles 14 and 21 of the Constitution and, as a result, are not subject to review by the Court even if they cause harm and prejudice?

Law:

Indian Penal Code, 1860- Section 120B- Punishment of criminal conspiracy-

Code of Criminal Procedure, 1973 - Section 197 - Prosecution of Judges and public servants.

Constitution of India- Article 14- Equality before law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Constitution of India - Article 21 - Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

Criminal Law Amendment Act, 1952- Section 6 - Power to appoint special judges

Criminal Law Amendment Act, 1952- Section 7- Cases triable by special judges

Indian Penal Code,1860- Section 161 - which states that the public servant should not take remuneration more than the government provides or obtain any valuable thing without consideration becomes a Cognizable Non-bailable offence.

Criminal Procedure Code, 1973 - Section 374(1)- Appeals from convictions - Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

Code of Criminal Procedure, 1973 - Section 406(1) - Power of Supreme Court to transfer cases and appeals- Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.

Indian Penal Code, 1860- Section 161- Public servant taking gratification other than legal remuneration in respect of an official act.

Indian Penal Code, 1860- Section 165- Public servant obtaining valuable thing, without consideration, from person concerned in proceeding or business transacted by such public servant.

Contentions:

Appellant

The jurisdiction to entertain and try cases is conferred either by the Constitution or by the laws made by the parliament. The appellant has a right to be tried in accordance with law and no procedure which will deny the equal protection of law can be invented and any order passed by this Court which will deny equal protection of laws would be an order which is void by virtue of Article 13(2) of the Constitution.

The directions given by the 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. Section 406 of the Code only permitted transfer of cases from one High Court to another High Court or from a Criminal Court subordinate to one High Court to a Criminal Court subordinate to another High Court. It is apparent that the impugned directions could not have been given under Section 406 of the Code as the Court has no such power to order the transfer from the Court of the Special Judge to the High Court of Bombay.

The directions of 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. The appellant's Fundamental Right under Article 21 of the Constitution which is a right to trial by a special judge under Section 7(1) of the Criminal Law Amendment Act, 1952.

The Fundamentals of the administration of justice i.e., no man should suffer because of court, no man should suffer a wrong by the technical procedure of irregularity was violated.

Respondent

Section 7 of the Act of 1952 is of exclusive jurisdiction, qua the Courts subordinate to the High Court. It is not exclusive qua a Court of superior jurisdiction including a Court which can hear an appeal against its decision. The non-obstante clause does not prevail over other provisions of the Code such as those which recognise the powers of the superior Courts to exercise jurisdiction on transfer.

Apart from the power under Sections 406 and 407 of the Code the power of transfer is also exercisable by the High Court under Article 228 of the Constitution. There is no doubt that under this Article the case can be withdrawn from the Court of a Special Judge. It is open to the High Court to finally dispose it of. A chartered High Court can make orders of transfer under Clause 29 of the Letters Patent. Article 134(1)(b) of the Constitution expressly recognises the existence of such power in every High Court.

The judgment of the Constitution Bench of the Court was delivered on 16th of February, 1984 and counsel for both sides were present and it was neither objected to nor stated by the appellant that he wanted to be heard in regard to the transfer of the trial forum. There was no review against this order. The order of transfer to a superior court cannot in law or in fact ever cause any harm or prejudice to any accused.

Analysis:

(i) It has to be borne in mind that Section 7(1) of Criminal Law Amendment Act, 1952(1952 Act) creates a condition which is sine qua non for the trial of offenders under Section 6(1) of-that Act. In this connection, the offences specified under Section 6(1) 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 1947 Act. Therefore, the order of the Court transferring the cases to the High Court on 16th February, 1984, was not authorised by law. the Court, by its directions could not confer jurisdiction on the High Court of Bombay to try any case which it did not possess such jurisdiction under the scheme of the 1952 Act.

(ii) It has been proclaimed and pronounced that no man is above the law; but at the same time reiterate and declare that no man can be denied his rights under the Constitution and the laws. He has a right to be dealt with in accordance with the law and not in derogation of it. The Court, in its anxiety to facilitate the parties to have a speedy trial gave directions on 16th February,1984as mentioned hereinbefore without conscious awareness of the exclusive jurisdiction of the Special Courts under the 1952 Act and that being the only procedure established by law, there can be no deviation from the terms of Article 21 of the Constitution of India. That is the only procedure under which it should have been guided. By reason of giving the directions on 16th February, 1984 the Court had also unintentionally caused the appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special procedure not provided for by law. When these factors are brought to the notice of the Court, even if there are any technicalities the Court should not feel shackled and decline to rectify that injustice or otherwise the injustice noticed will remain forever a blot on justice. It has been said long time ago that "Actus Curiae Neminem Gravabit"- an act of the Court shall prejudice no man.

(iii) The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law and no Court, whether superior or inferior or both combined can enlarge the jurisdiction of a Court or divest a person of his rights of revision and appeal.

(iv) The Court concluded that the doctrine of per incuriam is applicable in the present case also. The Court opined that the Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty. It can do so in exercise of its inherent jurisdiction in any proceeding pending before it without insisting on the formalities of a review application.

(v) It is no necessary to consider whether Section 374 of the Criminal Procedure Code confers the right of appeal to the Court from the judgment of a learned Judge of the High Court to whom the case had been assigned inasmuch as the transfer itself was illegal. One has to consider that Section 407 of the Criminal Procedure Code was subject to the overriding mandate of Section 7(1) of the 1952 Act, and hence, it does not permit the High Court to withdraw a case for trial to itself from the; Court of Special Judge.

Sabyasachi Mukherjee, J (concurring)

(i) The power to transfer a case conferred by the Constitution or by Section 406 of the CrPC does not specifically relate to the special Court. Section 406 of the Code could perhaps be applied on the principle that the Special Judge was a subordinate court for transferring a case from one special Judge to another special Judge. That would be so because such a transfer would not contravene the mandate of Section 7(1) of the Amending Act of 1952. While that may be so, the provisions for transfer, already referred to, do not authorize 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.

Ranganath Misra, J. (concurring)

(i) If a mistake is detected and the apex Court is not able to correct it with a view to doing justice for fear of being misunderstood, the cause of justice is bound to suffer and for the Apex Court the apprehension would not be a valid consideration. Today it is Abdul Rehman Antulay with a political background and perhaps some status and wealth but tomorrow it can be any ill-placed citizen. Court while administering justice does not take into consideration as to who is before it.

G.L. Oza, J.(concurring)

(i) Even if an error is apparent in a judgment or an order passed by the Court it will not be open to a writ of certiorari. There should be no hesitation in correcting an error in exercise of inherent jurisdiction if it comes to our notice. Jurisdiction to try a case could only be conferred by law enacted by the legislature and this Court could not confer jurisdiction if it does not exist in law and it is this error which is sought to be corrected.

B.C. Ray, J. (concurring)

(i) Judicial order of court is not amenable to a writ of certiorari for correcting any error in the judgment. It has also been highlighted that the court cannot confer a jurisdiction on itself which is not provided in the law. It has also been observed that the act of the court does not injure any of the suitors. It is for this reason that the error in question is sought to be corrected after a lapse of more than three years.

M.N. Venkatachaliah, J. (dissenting),

(i) The practice has developed that a larger bench is entitled to over-rule the decision of a small bench notwithstanding the fact that each of the decisions is that of the Court. That principle, however, would not apply in the present situation and since the sitting Bench is of seven it is not entitled to reverse the decision of the Constitution Bench.

(ii) 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.

(iii) "Actus Curaie Neminem Gravabit", this maxim has no application to conscious conclusions reached in a judicial decision. The maxim is not a source of a general power to reopen and rehear adjudication which have otherwise assumed finality. The maxim operates in a different and narrow area. The area of operation of the maxim is, generally, procedural. Errors in judicial findings, either of facts or law or operative decisions consciously arrived at as a part of the judicial-exercise cannot be interfered with by resort to his maxim.

(iv) The power to alter a decision by review must be expressly conferred or necessarily inferred. The power of review and the limitations on the power-under Article 137 are implicit recognitions of what would, otherwise, be final and irrevocable. No appeal could be made to the doctrine of inherent powers of the Court either. Inherent powers do not confer, or constitute a source of, jurisdiction. They are to be exercised in aid of a jurisdiction that is already invested. The remedy of the appellant, if any, is recourse to Article 137; no where else. This appears to me both good sense and good law.

S. Ranganathan, J.(dissenting)

(i) Direction given by the Court in its judgment dated 16.2.1984 should not be recalled and dismissed the Appellant's appeal. The delay has not been satisfactorily explained, the prayer of the appellant that the present pleas may be treated as one in the nature of a review application and the appellant given relief on that basis has to be rejected.

Conclusion:

(i) It was held that directions on 16th February, 1984, were violative of the limits of jurisdiction and the directions have resulted in deprivation of the fundamental rights of the appellant, guaranteed by Articles 14 and 21 of the Constitution. The appellant has been treated differently from other offenders, accused of a similar offence in view of the provisions of the Act of 1952 and the High Court was not a Court competent to try the offence. It was directed to try the appellant under the directions of this Court, which was in derogation of Article 21 of the Constitution. The directions have been issued without observing the principle of Audi Alteram Partem.

(ii) In view of the majority judgments the appeal is allowed. All proceedings in this matter subsequent to the directions of the Court on 16th February, 1984 as indicated in the judgment are set aside and quashed. The trial shall proceed in accordance with law, that is to say, under the Act of 1952.

Important Precedents:

(i) State of Bengal v. Anwar Ali Sarkar.

(ii) Soni Vrajlal Jethalal v. Soni Jadavji Govindji and Ors.

(iii) Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr.

(iv) Nawabkhan Abbaskhan v. The State of Gujarat.