A.R. Antulay Vs. R.S. Naik & Ors
 INSC 221 (29 October 1986)
VENKATARAMIAH, E.S. (J) 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
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
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]
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
P.P. Rao, R.S. Desai, M.N. Shroff, A.M.
Khanwilkar and Bhasme for the Respondents.
The following Order of the Court was
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,  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 laun93 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
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
3. Has the accused in this case a remedy by
way of appeal as of right under the Criminal 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 extraordinary 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 Government 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  S.C.R. 284 and result in violation of Article
14 of the Constitution? The following observations of Vivian Bose, J. in Anwar
Ali Sarkar's 95 case at pages 366-367 of the Report are relevant:
"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 conditions 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 contravention
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 14and Article 21 are being violated
even though he may have a remedy of a restricted 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 requested
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 satisfied by the issue of the necessary notification 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 questioning 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 competence 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 interpreted
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,  3 S.C.R. 858. The Division
Bench felt that the decision in Ram Sarup's case 98 (supra) was erroneous and
needed reconsideration. 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,  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 
S.C.R. 89 and in Sajjan Singh's case  I S.C.R. 938 that referred the case
to a larger Bench which decided Golak Nath's case  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  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 ultimately after hearing
the appeal until that decision is given by this Court, is it not reasonable to
stay the trial pending disposal of this appeal?