PETITIONER:
A.R. ANTULAY
Vs.
RESPONDENT:
R.S. NAIK & ORS.
DATE OF JUDGMENT29/10/1986
BENCH:
VENKATARAMIAH, E.S. (J)
MUKHARJI, SABYASACHI (J)
CITATION:
1987 AIR 1140 1987 SCR (1) 91
1986 SCC Supl. 510 JT 1986 759
1986 SCALE (2)703
ACT
Supreme Court Rules, 1966 Order XVI read.
With Order XXLVII--Revocation of special leave--Whether an application for revocation of special leave can be granted by the Supreme Court when in a case in the presence of the counsel for the respondents and after hearing his submissions the said special leave was granted.
HEADNOTE
HELD: Having regard to the various aspects of the case and the important points of law which arise for consideration the petition to revoke the special leave cannot be granted. Further the special leave, was granted by the Court in the presence of the counsel for the respondents and after hearing his submissions. The petition has not only culminated in criminal appeal but the very same counsel has made a request that the case should be referred to a Constitution Bench’ [92B, 91H]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Miscellaneous Petition No. 4248 of 1986 IN Criminal Appeal No. 468 of 1986
From the Judgment and Order dated 24.7.1986 of the Bombay High Court in special Case No. 24 of 1982. Ram Jethmalani and Miss Rani Jethmalani for the Appellant.
P.P. Rao, R.S. Desai, M.N. Shroff, A.M. Khanwilkar and Bhasme for the Respondents. The following Order of the Court was delivered:
The Special-leave was granted by this court in this case in the presence of the learned counsel for the respondents and after hearing submissions. Today we axe asked to revoke the leave already 92 granted by us. We have considered the points urged before us in support of the application for revocation. We do not find any ground to revoke the special leave already granted by us. Shri Jethmalani learned counsel for the respondents reiterates his request which he had made on the date on which the Special leave was granted, namely that this case should be referred to a Constitution Bench. Having regard to the various aspects of this case and the points which arise for consideration which. we have recorded in the form of a note which forms part of this order, we agree with Shri Jethmalani that this case should be referred to a larger bench. We accordingly direct that this case should be listed for hearing before a bench of 7 Judges of this Court. Liberty to mention for early hearing. The papers may be placed before the Hon’ble the Chief Justice of India for further directions regarding Constitution of the Bench. The prayer for vacating the stay is rejected. NOTE APPENDED
A private complaint was first heard by Shri R.B. Sule who had been appointed as a Special Judge under section 6 (1) of the Criminal Law Amendment Act, 1952 by the Government 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 Court (R. S. Nayak v. A.R. Antulay, [1984] S.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. 24 of 1982 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 (which by its very nature is of a
restricted character) 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,
[1966] 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, [1959] 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 [1952]
S.C.R. 284 and result in violation of Article
14 of the Constitution? The following observa-
tions of Vivian Bose, J. in Anwar Ali Sarkar’s
95
case at pages 366-367 of the Report are rele-
vant:
"Tested in the light of these considerations,
I am of opinion that the whole of the West
Bengal Special Courts Act of 1950 offends the
provisions of article 14 and is therefore bad.
When the froth and the foam of discussion is
cleared away and learned dialectics placed on
one side, we reach at last the human element
which to my mind is the most important of all.
We find men accused of heinous crimes called
upon to answer for their lives and liberties.
We find them picked out from their fellows,
and however much the new procedure may give
them a few crumbs of advantage, in the bulk
they are deprived of substantial and valuable
privileges of defence which others, similarly
charged, are able to claim. It matters not to
me, nor indeed to them and their families and
their friends, whether this be done in good
faith, whether it be done for the convenience
of government. whether the process can be
scientifically. classified and labelled, or
whether it is an experiment in speedier trials
made for the good of society at large. It
matters not how lofty and laudable the motives
are. The question with which I charge myself
is, can fair-minded, reasonable, unbiassed and
resolute men, who are not swayed by emotion or
prejudice, regard this with equanimity and
call it reasonable, just and fair, regard it
as that equal treatment and protection in the
defence of liberties which is expected of a
sovereign democratic republic in the condi-
tions which obtain in India today? I have but
one answer to that. On that short and simple
ground I would decide this case and hold the
Act bad."
(underlining by us) Do not the above observations apply to judicial orders also?
If under the American Constitution a prisoner
can challange successfully a conviction which
has become final on the ground of contraven-
tion of the Vlth Amendment even after he is
sent to jail, by an independent petition,
(vide Gideon’s case 372 U.S. 335) 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?
(See Salmond’s Jurisprudence (Eleventh Edn. P.
203).
8. We find that even when the accused in
this case brought to the notice of this Court
(before a Bench presided over by the Judge who
delivered the judgment), 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’s (supra) this 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 (E.S. Venkataramiah and R.B. Misra,
JJ)It was noticed by the Division Bench that
the said provisions had been upheld by a
Constitution Bench in Ram Sarup v. Munshi,
[1963] 3 S.C.R. 858. The Division Bench felt
that the decision in Ram Sarup’s case
98
(supra) 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. (See Atam Prakash v. State
of Haryana, [1986] 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 case [1952] S.C.R. 89 and in Sajjan
Singh’s case [1965] I S.C.R. 938 that referred
the case to a larger Bench which decided Golak
Nath’s case [1967] 2 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 case [1973] Supp. 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? 99