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Supreme Court of India
Kamlesh Kumar And Ors vs State Of Jharkhand And Ors on 26 September, 2013
Author: H.L. Gokhale
Bench: H.L. Gokhale, Madan B. Lokur
                                                                             REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


          SPECIAL LEAVE PETITION (CRIMINAL) Nos. 6219-6220 OF 2012


Kamlesh Kumar & Ors.                         …     Petitioners

                                    Versus

The State of Jharkhand & Ors.                …     Respondents





                          J  U  D  G  E  M  E  N  T


H.L. GOKHALE, J

            These Special Leave Petitions (Criminal) seek to  challenge  the
judgment and order dated 19.7.2012, whereby a Learned Single  Judge  of  the
Jharkhand High Court dismissed the two  Writ  Petitions  bearing  Nos.  Writ
Petition Nos.95 & 112 of 2003 filed by Shri Kamlesh Kumar and three  others,
all children of one Dr. K.M. Prasad who worked earlier as  the  Director  of
Animal  Husbandry  department  in  Government  of  Bihar.   They  are  being
prosecuted under the provisions of Foreign  Exchange  Regulation  Act,  1973
(in short FERA), and those

cases have been transferred to the Special Judge  hearing  the  Fodder  scam
cases.  In the above referred Criminal Writ Petitions  they  had  challenged
the transfer of those cases to the Special  Court  by  contending  that  the
transfer order was bad on various grounds, the principal amongst them  being
that the State Government had  no  jurisdiction  to  authorise  the  Special
Judge to try these cases under FERA.  Those  Criminal  Writ  Petitions  have
been rejected, and hence these Special Leave Petitions (Criminal) have  been
filed.

Facts leading this Criminal Petition are as follows:-
2.          The above referred 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).

7.          The  notification  issued  by  the  Jharkhand  Government  dated
17.5.2002 reads as follows:-
                            “JHARKHAND GOVERNMENT
                          LAW (JUSTICE), DEPARTMENT

                                NOTIFICATION


                                   RANCHI dated 17th May, 2002


      Sr. Prabhu Tiwari, Special Judge, CBI (A.H.D Scam cases),  Ranchi,  is
      being authorized for disposal of cases of FEMA, 1979, in  addition  to
      his own works in the light of letter No. 3449/APPTT  dated  06/05/2002
      of Jharkhand High Court, Ranchi.

                                                    By the order of Governor
                                    (Prashant Kumar) Secretary to Government
                                                     Law(Justice) Department
                                                           Jharkhand, Ranchi

      Memo No. 1-A/court-Gathan-103/2001-1111/J Ranchi dated 17th May 2002


      Copy  to,  Superintendent,  State  Press,  Post-Doranda,  Ranchi   for
      publishing the same in the next state gazette.

                                                     Secretary to Government
                                                    Law (Justice) Department
                                                          Jharkhand, Ranchi�

This notification had been issued in the  light  of  letter  dated  6.5.2002
from the Registrar General of the High Court of Jharkhand,  which  reads  as
follows:-
                                                             “Office:-501449
                                                                 Res:-503024
                                                         Fax No: 0651-501114
                                                               No. 3449/APPT

                                                    Dated, Ranchi 06/05/2002

      IBRAR HASSAN
      Registrar General High Court of Jharkhand, Ranchi

      To
      The Secretary to the Government
      Law (Judl.) Department, Govt. of Jharkhand, Ranchi

      Sir
           With reference to your Letter No. 1/A/Court-Estab-103/2001 J 531
      dated 02/03/2002, I am directed to say that the Court has been pleased
      to resolve that Sri Prabhu Tiwary, Special  Judge,  C.B.I.  (AHD  Scam
      cases) at Ranchi be vested with the Powers to try cases under  Foreign
      Exchange Management Act, 1999.

           I am further directed to say that  since  the  vesting  of  this
      power has to be effective before 31st May, 2002 immediate notification
      to this effect may be issued.

                                                            Yours faithfully
                                                           Registrar General
                                                                 06.05.2002�


Submissions on behalf of the Petitioners:-
8.          It was firstly submitted on behalf of the petitioners  that  the
transfer of appellants’ prosecution under FERA / FEMA from the  Magistrate’s
Court to the Court of the Special Judge was  unlawful,  since  the  disputed
transfer was being made to a Court which had  no  jurisdiction  to  try  the
offence.  In this context, it was submitted by learned  senior  counsel  Mr.
Shekhar Naphade appearing for the petitioners  that  for  the  offences  for
which the petitioners were being prosecuted under Section 56  of  FERA,  the
punishment did not exceed 7 years of imprisonment.  Since we  are  concerned
with sub-section (1) of Section 56, we may reproduce the  said  sub-section.
We may note at this stage that though FERA came to be repealed and  replaced
by FEMA with effect from 1.6.2000, in view of Section 49 (4)  of  FEMA,  all
offences committed under FERA continue to be governed by the  provisions  of
FERA, as if that Act had not been repealed.  This Section  56  (1)  of  FERA
reads as follows:-

                 “56. Offences and prosecution- (1) Without prejudice to any
           award of penalty by the adjudicating officer under this Act,  if
           any person contravenes any of the provisions of this Act  [other
           than section 13, clause (a) of sub-section (1) of  [section  18,
           section 18A], clause (a) of sub-section (1) of section 19,  sub-
           section (2) of section  44 and sections 57 and 58],  or  of  any
           rule,  direction  or  order  made  thereunder  he  shall,   upon
           conviction by a court, be punishable-

           (i)   in the case of an offence the amount or value involved  in
           which exceeds one lakh of rupees, with imprisonment for  a  term
           which shall not be less than six months, but which may extend to
           seven years and with fine:


           Provided that the  court  may,  for  any  adequate  and  special
           reasons to be mentioned in the judgment, impose  a  sentence  of
           imprisonment for a term of less than six months;


           (ii)  in any other case, with imprisonment for a term which  may
           extend to three years or with fine or with both.�

9.          It was then submitted that the  punishment  being  less  than  7
years, as provided under the second entry of Part-II of  First  Schedule  to
Cr.P.C., the offences which  are  punishable  with  imprisonment  for  three
years and upwards but not more than seven years, and are cognizable and non-
bailable offences,  are triable by the Magistrate of the  first  class.  The
State Government was therefore, not competent to  transfer  the  prosecution
under Section 56 of FERA from the Court of Chief Judicial Magistrate to  the
Court of the Special Judge.  This is because if so permitted it will  result
into denial of one right of appeal to the petitioner.
10.   (i)   Reliance was placed  in  support  of  this  proposition  on  the
judgment of a Constitution Bench of this Court in the case of A.R.

Antulay  v.  R.S.  Nayak  and  Anr.  reported  in  1988  (2)  SCC  602,  and
particularly paragraphs 55, 56, 77, 78 and 91 thereof to  submit  that  this
transfer will reduce the right of appellants to  appeal.   The  transfer  of
the prosecution against the petitioner A.R. Antulay, from the Court  of  the
Special Judge to the High Court of Bombay was held to  be  in  violation  of
the  Fundamental  Rights  of  the   petitioner,   and   therefore,   without
jurisdiction and null  and  void.   It  was  held  that  the  right  of  the
petitioner to prefer an appeal against the decision of the Special Judge  to
the High Court was taken away by such a transfer.
(ii)  Reliance was also placed in this behalf on a judgment  of  a  Division
Bench of Delhi High Court in the case of A.S. Impex Limited & Ors. v.  Delhi
High Court & Ors. reported in 107 (2003)  Delhi  Law  Times  734.   In  that
matter, the Court was concerned with the administrative order passed by  the
High Court to transfer cases filed  under  Section  138  of  the  Negotiable
Instrument Act, 1881, from the  Courts  of  Magistrates  to  the  Courts  of
Additional Sessions  Judges.   The  High  Court  relied  upon  A.R.  Antulay
(supra) and held that to deal with  the  dishonour  of  cheques,  a  special
jurisdiction was conferred  on  the  Metropolitan  Magistrates  or  Judicial
Magistrates First Class, to try  the  offences  under  Section  138  of  the
Negotiable Instrument Act 1881,

and that jurisdiction could not be taken away by transferring these  matters
to the Sessions Courts.
11.         It was also submitted, that the transfer of the cases could  not
have been effected by the High Court without following  the  procedure  laid
down under Section 407 of the Cr.P.C., and impugned orders  of  transfer  of
cases were therefore bad in law.
Reply on behalf of the Respondents:-
12.         The arguments of the learned counsel  for  the  petitioner  were
countered  by  Mr.  P.P.  Malhotra,  learned  Additional  Solicitor  General
appearing for the respondents.  He firstly drew our attention  to  the  fact
that in Antulay’s case, as recorded in paragraph 19 of  that  judgment,  the
petitioner was being prosecuted under  Section  7(1)  of  the  Criminal  Law
Amendment Act 1952, and Section 7(1) of the said Act  specifically  mandated
that offences in such cases shall be tried by a Special Judge only.

13.         Mr. Malhotra  submitted  that  when  the  statute  made  such  a
specific  provision,  the  prosecution  could  not  be  withdrawn  from  the
specified court and transferred even to the High  Court.   It  was  in  this
context that Shri A.R. Antulay had suffered a prejudice in as  much  as  his
right of appeal to the High Court would get affected.  In the present



case, there was no such specific provision that the offence shall  be  tried
by a Magistrate only.  In support of his submissions Mr. Malhotra  drew  our
attention to a specific judgment of this Court in Ranvir Yadav v.  State  of
Bihar reported in 1995 (4) SCC 392 where the legal proposition as stated  in
A.R. Antulay (supra) came to  be  explained  in  paragraph  14  thereof.  In
Ranvir Yadav (supra) this Court was concerned with the administrative  power
of the  High  Court  to  transfer  cases.   While  upholding  the  order  of
transfer, this is what this Court observed in paragraph 14 thereof:-
               “14. Coming now to  A.R.  Antulay  case  we  find  that  the
           principles of law laid down in the majority judgment,  to  which
           Mr. Jethmalani drew our attention have no manner of  application
           herein. There questions arose as to whether (i) the  High  Court
           could  transfer  a  case  triable  according  to  Criminal   Law
           Amendment Act, 1952 (“1952 Act� for short) by  a  Special  Court
           constituted thereunder to another court, which was not a Special
           Court  and  (ii)  the  earlier  order  of  the   Supreme   Court
           transferring the case pending before the Special  Court  to  the
           High Court was valid and proper. In answering both the questions
           in the negative the  learned  Judges,  expressing  the  majority
           view, observed that (i) Section 7(1) of the 1952 Act  created  a
           condition which was sine qua non for the trial of offences under
           Section  6(1)  of  the  said  Act.  The   condition   was   that
           notwithstanding anything  contained  in  the  Code  of  Criminal
           Procedure or any other law the said offence shall be triable  by
           Special Judges only. By express terms therefore it took away the
           right of transfer of cases contained in the Code  to  any  other
           court which was not a Special Court and this was notwithstanding
           anything contained in Sections 406 and 407 of the Code and  (ii)
           the earlier order of the Supreme Court transferring the case  to
           the High Court was not authorised by law, namely,  Section  7(1)
           of the 1952 Act and the Supreme Court, by its  direction,  could
           not confer jurisdiction on the High Court of Bombay to  try  any
           case for which it did not possess such  jurisdiction  under  the
           scheme of the 1952 Act. As in the present case the 5th Court was
           competent under the Code to  conduct  the  sessions  trial,  the
           order of transfer conferring jurisdiction on that court and  the
           trial that followed cannot be said to be bad in law.�
                                              (emphasis supplied)



 14.        One of the submissions for the petitioners was  that  since  the
offences under Section 56(1) are punishable with  imprisonment  for  a  term
which may extend to seven years only, they are  triable  by  Magistrates  of
the First Class only.  Mr. Malhotra, pointed out that it would be so if  the
offences are cognizable  as  per  the  second  entry  of  Part-II  of  First
Schedule to Cr.P.C.  In the present case, the offences  were  non-cognizable
under Section  56  of  FERA,  and  the  petitioners  were  being  prosecuted
thereunder.  Section 62 of the FERA had made the offences  punishable  under
Section 56 as non-cognizable ones.  Section 62 of FERA reads as follows:-
                 “62. Certain offences to be non-cognizable- Subject to  the
           provisions of section 45 and notwithstanding anything  contained
           in the [Code of Criminal Procedure, 1973 (2 of 1974], an offence
           punishable under section 56 shall be deemed to be non-cognizable
           within the meaning of that Code.�

Consideration of rival submissions
15.         It had been submitted on behalf of the petitioner  that  one  of
the submissions accepted in A.R. Antulay (supra) was that his right to  file
an appeal would be affected.  Mr. Malhotra pointed out that in  the  present
case such a situation would not arise.  An appeal  would  lie  certainly  to
the High Court against the decision of the Special Judge.  It  would  always
be argued that if the prosecution was conducted  before  the  Court  of  the
Magistrate, an appeal would lie  to  the  Court  of  Sessions,  and  then  a
revision would be available to the High  Court.  Thus  by  transferring  the
case from the Court of Magistrate to a Sessions Judge,  the  opportunity  of
the petitioner to avail of a  revision  would  be  affected.   Mr.  Malhotra
however pointed out that there was no right to file a revision as  such,  as
distinguished from the right of filing an appeal to  the  High  Court.   The
petitioner can not claim to have  suffered  any  prejudice  on  that  count,
since there was no vested right to file a  revision.   In  support  of  this
proposition he relied upon the following  paragraph  from  the  Constitution
Bench judgment of this Court in Pranab Kumar Mitra  v.  The  State  of  West
Bengal and Anr. reported in 1959 Supp 1 SCR 63 at page 70:-
               “In our opinion, in the absence of statutory provisions,  in
           terms applying to an application in revision, as there are those
           in s. 431 in respect of criminal appeals, the High Court has the
           power to pass such orders as to it may seem fit and  proper,  in
           exercise of its revisional jurisdiction vested in it by  s.  439
           of the Code.  Indeed, it is a discretionary power which  has  to
           be exercised in aid of justice.  Whether or not the  High  Court
           will exercise its revisional jurisdiction in a given case,  must
           depend upon the facts  and  circumstances  of  that  case.   The
           revisional powers of the High Court vested in it by  s.  439  of
           the Code, read with s. 435, do  not  create  any  right  in  the
           litigant, but only conserve the power of the High court  to  see
           that justice is done in accordance with the recognised rules  of
           Criminal Jurisprudence, and that subordinate criminal courts  do
           not exceed their jurisdiction, or abuse their powers  vested  in
           them by the Code. On the other  hand,  as  already  indicated  a
           right of appeal is  a  statutory  right  which  has  got  to  be
           recognised by the courts, and the  right  to  appeal,  where  on
           exists, cannot be denied in exercise of the discretionary  power
           even of the High Court……�

16.         It was further pointed out by Mr. Malhotra that  this  view  had
been followed by the High  Courts,  and  for  reference  he  referred  to  a
Division Bench judgment of Bombay High  Court  in  Suraj  Prakash  Seth  and
another v. R.K. Gurnani and another reported in 1975 Mh.L.J 588,  where  the
proposition laid down  in  P.K.  Mitra  (supra)  had  been  referred  to  in
support.  The High 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,  we  have  no  reason  to  take  a  view
different from the one taken by the High Court.

21.          Both  the  Special  Leave  Petitions  (Crl.)  are,   therefore,
dismissed.


                                                          …………..……………………..J.
                                            [ H.L. Gokhale ]


New Delhi
Dated : September 26, 2013

























                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NOS. 6219-6220 OF 2012

Kamlesh Kumar & Ors.                                   … Petitioners
                                   Versus

The State of Jharkhand & Ors.                                …Respondents



                               J U D G M E N T

MADAN B. LOKUR, J While I endorse the views of my learned Brother Gokhale, I have thought it appropriate to separately express my opinion in the matter.

2. The facts of the case have been succinctly brought out by my learned Brother and it is not necessary to repeat them.

Validity of the notification of transfer

3. The notification authorizing the Special Judge to dispose of cases under the Foreign Exchange Management Act, 1999 and thereby effectively transferring the petitioners’ case pending before the Magistrate to the Special Judge is said to be unlawful since the transfer is to a court that has no jurisdiction to try the offence.

4. Part II of the First Schedule to the Code of Criminal Procedure, 1973 (for short the Code) provides that for an offence punishable with imprisonment for three years and upwards but not more than seven years, the case would be triable by a Magistrate of the first class. Section 56 of the Foreign Exchange Regulation Act, 1973 (for short the FERA) now repealed by the Foreign Exchange Management Act, 1999 provides, inter alia, that for a violation of its provisions, the maximum punishment would be imprisonment which may extend to seven years and with fine. Therefore, effectively transferring the petitioners’ case to a Special Judge (of the rank of a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge) functioning under the Criminal Law Amendment Act, 1952 (for short the CLA Act) meant its trial by a court that lacked jurisdiction over the subject matter. In support of this contention, great reliance was placed on some passages in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602.

5. The question in Antulay (to the extent relevant) was whether this Court could have transferred the case against Antulay from the Special Judge appointed under the Criminal Law Amendment Act, 1952 to the High Court. (See R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183). This Court answered the question in the negative and three principal reasons, relevant to the present case, were given for this conclusion.

6. Firstly, it was noted that Section 7 of the CLA Act gave exclusive jurisdiction to the Special Judge to try the offences under sub-section (1) of Section 6 of the CLA Act. Section 7 of CLA Act reads as follows:-

“Cases triable by Special Judges: - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), or in any other law the offences specified in sub-section (1) of Section 6 shall be triable by Special Judges only.
(2) Every offence specified in sub-section (1) of Section 6 shall be tried by the Special Judge for the area within which it was committed, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government.

(3) When trying any case, a Special Judge may also try any offence other than an offence specified in Section 6 with which the accused may, under the Code of Criminal Procedure, 1898 (5 of 1898), be charged at the same trial.�

7. This Court noted that since it is only the Special Judge who could try offences under Section 6 of CLA Act, the case against Antulay could not have been transferred to the High Court. It was noted that the trial by a Special Judge is a sine qua non for the trial of offences under Section 6 of CLA Act and even this Court could not pass an order not authorized by law.

8. Secondly, Section 7(1) of CLA Act provides for trial of the case by the Special Judge notwithstanding anything contained in the Code. Therefore, the statutory power available to this Court to transfer cases under Section 406 of the Code was statutorily taken away. Additionally, Section 406 of the Code only enabled this Court to transfer cases and appeals from one High Court to another High Court or from one criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court. Section 406 of the Code did not empower this Court to transfer a case from the Special Judge under the CLA Act to the High Court and even if it did, that power was taken away by the CLA Act. Section 406 of the Code reads as follows:-

“406. Power of Supreme Court to transfer cases and appeals:-
(1) 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.
(2) The Supreme Court may act under this section only on the application of the Attorney-General of India or of a partly interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney-General of India or the Advocate-General of the State, be supported by affidavit or affirmation.

(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case.�

9. The third reason related to the power of transfer available to this Court under Article 142 of the Constitution. In this context, reference was made to a Constitution Bench decision of this Court in Prem Chand Garg v. Excise Commissioner, 1963 Supp (1) SCR 885 wherein it was observed that:

“The powers of this Court are no doubt very wide and they are intended to be and will always be exercised in the interest of justice. But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.�
10. Since the order of this Court transferring the case from the Special Judge to the High Court was contrary to the statutory law and (as held in a later part in Antulay) contrary to Article 14 and Article 19 of the Constitution, the order of transfer was liable to be set aside.

11. In this context, this Court also noted that the power to create or enlarge jurisdiction is legislative in character and no court, whether superior or inferior or both combined, could enlarge the jurisdiction of a court. On this basis, inter alia, this Court concluded that the transfer of Antulay’s case from the Special Judge to the High Court was erroneous in law.

12. Antulay subsequently came up for consideration in Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392. In paragraph 14 of the Report, it was noted that the express language of Section 7(1) of the CLA Act, took away the right of transfer of cases contained in the Code to any other court which was not a Special Court and that this was notwithstanding anything contained in Section 406 and Section 407 of the Code. This is what was said in this regard:

“Coming now to A.R. Antulay case we find that the principles of law laid down in the majority judgment, to which Mr. Jethmalani drew our attention have no manner of application herein. There questions arose as to whether (i) the High Court could transfer a case triable according to Criminal Law Amendment Act, 1952 (“1952 Act� for short) by a Special Court constituted thereunder to another court, which was not a Special Court and (ii) the earlier order of the Supreme Court transferring the case pending before the Special Court to the High Court was valid and proper. In answering both the questions in the negative the learned Judges, expressing the majority view, observed that (i) Section 7(1) of the 1952 Act created a condition which was sine qua non for the trial of offences under Section 6(1) of the said Act. The condition was that notwithstanding anything contained in the Code of Criminal Procedure or any other law the said offence shall be triable by Special Judges only. By express terms therefore it took away the right of transfer of cases contained in the Code to any other court which was not a Special Court and this was notwithstanding anything contained in Sections 406 and 407 of the Code and (ii) the earlier order of the Supreme Court transferring the case to the High Court was not authorised by law, namely, Section 7(1) of the 1952 Act and the Supreme Court, by its direction, could not confer jurisdiction on the High Court of Bombay to try any case for which it did not possess such jurisdiction under the scheme of the 1952 Act.�
13. In so far as the present case is concerned, it is apparent from a reading of Section 56 of the FERA as also Section 61 of the FERA that exclusive jurisdiction has not been conferred on the Magistrate to try cases relating to a violation of the provisions of the FERA. Absent jurisdictional exclusivity, the principle of law laid down in Antulay is not applicable and the Special Judge could have been conferred jurisdiction to try the case against the petitioners.

Right of appeal

14. It was contended that assuming that at law the case could validly have been transferred to the Special Judge, the petitioners are seriously prejudiced in as much as their right of appeal from the decision of a Magistrate to a Sessions Judge is taken away. Due to this prejudicial action, which was taken by the High Court without hearing the petitioners, the notification conferring power on the Special Judge to try the case should be struck down.

15. The right of appeal available to the petitioners in the present case is not taken away by transferring the case from the Magistrate to the Special Judge. The petitioners continue to have the right to appeal, but it is only the forum that has changed. They can now prefer an appeal from the order of the Special Judge to the High Court. Therefore, it is not as if the petitioners are denuded of any right to agitate their cause in a superior forum by the transfer of the case to the Special Judge.

16. It is now well settled that a litigant has neither a right to appeal to a particular forum nor to insist on a particular procedure being followed in his case. This was settled way back in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1953 SCR 118 wherein a Constitution Bench of this Court held:

“A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except insofar as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved.�
17. This dictum was followed in Union of India v. Sukumar Pyne, AIR 1966 SC 1206.

18. Similarly, In Maria Cristina De Souza Sodder v. Amria Zurana Pereira Pinto, (1979) 1 SCC 92 it was held somewhat more elaborately:

“It is no doubt well-settled that the right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced in the Court of the first instance, and such right or any remedy in respect thereof will not be affected by any repeal of the enactment conferring such right unless the repealing enactment either expressly or by necessary implication takes away such right or remedy in respect thereof…….. This position, has also been settled by the decisions of the Privy Council and this Court (vide Colonial Sugar Refining Company Ltd. v. Irving, [1905] AC 369 and Garikapatti Veeraya v. N. Subbiah Choudhury, 1957 SCR 488 but the forum where such appeal can be lodged is indubitably a procedural matter and, therefore, the appeal, the right to which has arisen under a repealed Act, will have to be lodged in a forum provided for by the repealing Act.�
19. In T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177 it was observed in paragraph 17 of the Report that a person accused of the commission of an offence has no right to trial by a particular procedure. This view was followed in M/s Rai Bahadur Seth Shreeram Durgaprasad v. Director of Enforcement, (1987) 3 SCC 27.

20. Therefore, it cannot be seriously urged that the petitioners were prejudiced by a change of the appellate forum.

Procedure for transfer:

21. Was the transfer of the case by the High Court at all permissible in law without following the procedure laid down in Section 407 of the Code?

22. A similar question came up for consideration in Ranbir Yadav and this Court noted the duality of power in the High Court. It was observed that the High Court has the judicial power of transfer of a case from one court to another under Section 407 of the Code. It also has the administrative power to transfer a case from one court to another under Article 227 of the Constitution.

23. In the context of Article 227 of the Constitution, this Court observed in paragraph 12 of Ranbir Yadav that the High Court has superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction and that in its plenary administrative power, the High Court could transfer a case from one court to another. It was further held that so long as the power is exercised for administrative exigency, without impinging upon or prejudicially affecting the rights and interests of the parties to any judicial proceeding, there is no reason to hold that administrative powers must yield to judicial powers simply because in a given circumstance they coexist.

24. In the present case, the High 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 a transfer.

Right of revision

25. Is the petitioners’ right of revision taken away if the case is transferred from the Magistrate to the Special Judge?

26. This question proceeds on the assumption that there is a right of revision. A Constitution Bench of this Court in Pranab Kumar Mitra v. State of West Bengal 1959(1) Suppl. SCR 63 set the “right� issue at rest several decades ago. It was held that the power to revise an order is a discretionary power which is to be exercised in aid of justice and the exercise of that power will depend on the facts and circumstances of a given case. It was held:

“The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence, and that subordinate Criminal Courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code.�
27. In Akalu Ahir v. Ramdeo Ram, (1973) 2 SCC 583 this Court once again adverted to the power of revision invested in a superior Court and described it as an “extraordinary discretionary power� to set right grave injustice. Clearly, therefore, it cannot be said that a litigant has a “right� to have an adverse order revised by a superior court. On the contrary, if there is any “right� to revise, it is invested in the superior court.

28. While the 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 a “procedural facility� available 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.

29. Reliance was placed by learned counsel for the petitioners on a Division Bench decision of the Delhi High Court in A.S. Impex Ltd. v. Delhi High Court, 107 (2003) DLT 734. This reliance is not only misplaced but, in my opinion, that decision should be overruled as not laying down the correct law.

30. In that case, the High Court administratively decided to transfer cases filed under Section 138 of the Negotiable Instruments Act, 1881 on or before 31st December 2001 and pending before the Magistrates to the Additional Sessions Judges. A notification for transfer of cases was accordingly issued and this was struck down by the Delhi High Court by, inter alia, relying on the law laid down in Antulay. As already noted above, the law laid down in Antulay has limited application and is not relevant to cases such as the one we are dealing with. This was clearly explained in Ranbir Yadav but the Delhi High Court ignored the observations of this Court without much ado by holding: “In that case the Court transferred the case from the Court of one Magistrate to the Court of another Magistrate for the reason that there was shortage of accommodation in the first Court. That is not the case in hand. It was not a case where the jurisdiction was transferred from the Court of Magistrate to the Court of Sessions.� The Delhi High Court also proceeded on an erroneous basis that the exercise of plenary administrative power available to the High Court to transfer cases meant the bypassing or circumventing of statutory provisions empowering Magistrates to try cases under Section 138 of the Negotiable Instruments Act, 1881 and conferring that jurisdiction on Additional Sessions Judges. The High Court did not correctly appreciate the power available to a High Court under Article 227 of the Constitution.

31. The error in A.S. Impex was correctly understood by the Division Bench of the Delhi High Court in Mahender Singh v. High Court of Delhi, (2009) 151 Comp Cas 485 (Delhi) and in N.G. Sheth v. C.B.I., 151 (2008) DLT

89. The Division Bench in both cases took a view different from that in A.S. Impex. However, both decisions having been rendered by Division Benches, A.S. Impex, could not be overruled. Therefore, I complete the formality and overrule A.S. Impex since it does not lay down the correct law in this regard.

32. For the reasons abovementioned, the Special Leave Petitions are dismissed.

……………………..J ( Madan B. Lokur ) New Delhi;

September 26, 2013

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