Dhyan
Investments & Trading Co. Ltd. Vs. Central Bureau of Investigation &
Ors [2001] Insc 353 (31
July 2001)
K.T.
Thomas & S.N. Variava S. N. Variava, J.
Leave
granted.
Heard
parties.
These
Appeals are against Orders dated 16th April, 2001 and 19th
April, 2001 passed by
the Bombay High Court.
Briefly
stated the facts leading to these Appeals are as follows:
Due to
large scale diversions of public funds, belonging to banks and financial
institutions, to the individual accounts of certain brokers, the Government
first promulgated an Ordinance. Subsequently the Special Court (Trial of Offences Relating to Transactions in Securities)
Act, 1992 was passed. (This Act will hereinafter be referred to as the Special
Courts Act.) Under this Special Courts Act one Special Court came to be
established. In the beginning there was only one Judge. All civil and criminal
matters, even if they arose from the same transaction were before the same
Judge. The same Judge had, in fact, tried both civil and criminal matters even
though they arose out of the same transaction or same set of facts. It is only
because the work load was found to be very heavy that the Special Courts Act
was amended in 1997, to enable appointment of more Judges. It is only
thereafter that there have been two Judges.
In May
1995 Canbank Financial Services Limited (Canfina) filed a Civil Petition No. 74
of 1995 before the Special
Court, claiming
criminal conspiracy to cause unlawful loss to them by sale and purchase of the
same securities within a period of two days at differing rates. Canfina claimed
damages arising out of the tort of conspiracy in a sum of Rs. 38,01,13,561/-.
In
March 1998 CBI filed Criminal Case No. 2 of 1998 before the Special Court alleging criminal conspiracy
amongst the Respondents to cause unlawful loss to Canfina by sale and purchase
of the same securities within a period of two days at differing rates.
One of
the two Judges of the Special
Court i.e. Justice Kapadia
disposed of, after a lengthy trial, Petition No. 74 of 1995 by a judgment dated
17th January, 2001. It would appear that Special Case
No. 2 of 1998 was earlier before the other Judge presiding over the Special Court, Justice Trivedi. Sometime in
September 2000, Special Case No. 2 of 1998 was administratively transferred by
the Chief Justice of the Bombay High Court from Justice Trivedi to Justice Kapadia.
The
Appellants then filed Criminal Application No. 809 of 2001 before the Bombay
High Court praying for an order transferring the case from Justice Kapadia to
any other Special Court. As there were only two presiding
Judges in the Special
Court, in effect the
Appellants wanted the case to be transferred to Justice Trivedi.
On 5th March, 2001 parties made a mention in the
Chamber of Justice Kapadia that they had filed Criminal Application No. 809 of
2001. We are told that the learned Judge was orally requested to withdrew from
the case.
The
Learned Judge rejected the oral request. The Judge, however, adjourned the
Special Case No. 2 of 1998 to 8th March, 2001.
Thereafter on 8th
March, 2001, the Judge
adjourned Special Case No. 2 of 1998 to 19th April, 2001, indicating that unless a stay was
obtained, Special Case No. 2 of 1998 would be proceeded with.
On 3rd
of April, 2001, a learned Single Judge of the Bombay High Court directed that
the Criminal Application No. 809 of 2001 be placed before a Division Bench of
the Court as an important question arose. The Chief Justice, therefore,
assigned it to a Division Bench. Criminal Application No. 809 of 2001 was heard
by a Division Bench on 16th
April, 2001. By the
Order dated 16th April, 2001, (i.e. one of the impugned orders), the Division
Bench directed that a written application for transfer be moved before the
Special Court, i.e. before the Hon'ble Judge, Mr. Kapadia himself. With these
directions the Criminal Application No. 809 of 2001 was disposed of.
Appellants
then filed, in the Special
Court, Miscellaneous
Application No. 168 of 2001 praying that Justice Kapadia may recuse himself
from the matter. By an order dated 19th April, 2001, that application has been
rejected.
On the
same date, i.e. 19th
April, 2001 parties
moved for some clarification before the Division Bench and the Division Bench
by its order dated 19th
April, 2001 has
refused to issue any clarification.
Hence
this SLP against the Orders of the Bombay High Court dated 16th April, 2001 and 19th April, 2001.
In
this Appeal we have not permitted parties to argue on merits. We have confined
parties to the question whether the High Court would have power to transfer the
case from one Judge of the Special Court
to another.
Mr.
Chidambaram submits that the High Court has such a power under Section 407 of
the Criminal Procedure Code. Section 407 Cr.P.C.
reads
as follows :
"407.
Power of High Court to transfer cases and appeals.
-
Whenever it is made to appear to the High Court-
(a) that
a fair and impartial inquiry or trial cannot be had in any criminal court
subordinate thereto, or
(b) that
some question of law of unusual difficulty is likely to arise, or
(c) that
an order under this section is required by any provision of this Code, or will
tend to the general convenience of the parties or witnesses, or is expedient
for the ends of justice, it may order –
(i) that
any offence be inquired into or tried by any court not qualified under Secs.
177 to 185 (both inclusive), but in other respects competent to inquire into or
try such offence;
(ii) that
any particular case or appeal, or class of cases or appeals, be transferred
from a criminal court subordinate to its authority to any other such Criminal
Court of equal or superior jurisdiction;
(iii) that
any particular case be committed for trial to a Court of Session; or
(iv) that
any particular case or appeal be transferred to and tried before itsel.
(2)
The High Court may act either on the report of the Lower Court, or on the application of a party
interested, or on its own initiative:
Provided
that no application shall lie to the High Court for transferring a case from
one criminal court to another criminal court in the same sessions division,
unless an application for such transfer has been made to the Session Judge and
rejected by him.
(3)
Every application for an order under sub-section (1) shall be made by motion,
which shall, except when the applicant is the Advocate-General of the State, be
supported by affidavit or affirmation.
(4)
When such application is made by an accused person, the High Court may direct
him to execute a bond, with or without sureties, for the payment of any
compensation which the High Court may award under sub-section (7).
(5)
Every accused person making such application shall give to the Public
Prosecutor notice in writing of the application, together with a copy of the
grounds on which it is made; and no order shall be made on the merits of the application
unless at least twenty-four hours have elapsed between the giving of such
notice and the hearing of the application.
(6)
Where the application is for the transfer of a case or appeal from any
Subordinate Court, the High Court may, if it is satisfied that it is necessary
so to do in the interests of justice, order that, pending the disposal of the
application, the proceedings in the Subordinate Court shall be stayed, on such
terms as the High Court may think fit, to impose:
Provided
that such stay shall not affect the Subordinate Court's power of remand under
Section 309.
(7)
Where an application for an order under sub-section (1) is dismissed, the High
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
proper in the circumstances of the case.
(8)
When the High Court orders under sub-section (1) that a case be transferred
from any court for trial before itself, it shall observe in such trial the same
procedure which that Court would have observed if the case had not been so
transferred.
(9)
Nothing in this section shall be deemed to affect any order of Government under
Section 197." It is thus to be seen that the High Court could only
exercise power under Section 407 provided the Special Court was subordinate to
it.
Mr.
Chidambaram submitted that the Special Court was a Criminal Court as envisaged
by the Criminal Procedure Code and that provisions of the Criminal Procedure
Code applied to it. In support of his contention Mr. Chidambaram referred to
Section 4 of the Criminal Procedure Code. Under this Section all offences under
the Indian Penal Code could be investigated, inquired into, tried and otherwise
dealt with according to the provisions of the Code. He also referred to Section
6 of the Criminal Procedure Code, which provides that besides the High Courts
and Courts constituted under any law, there would be in every State :-
a)
Courts of Session;
(b)
Judicial Magistrates of the first class and in any metropolitan area,
Metropolitan Magistrates;
(c)
Judicial Magistrates of the second class and
(d)
Executive Magistrates.
Mr.
Chidambaram sought to further support his arguments from the provisions of the
Special Courts Act. In this behalf he referred to Sections 5, 6, 7 and 9 of the
Special Courts Act. These Sections reads as follows :
"5.
Establishment of Special
Court –
(1)
The Central Government shall, by notification in the Official Gazette,
establish a court to be called the Special Court.
(2)
The Special Court shall consist of one or more sitting Judges of the High Court
nominated by the Chief Justice of the High Court within the local limits of
whose jurisdiction the Special Court is situated, with the concurrence of the
Chief Justice of India.
(3)
When the office of a Judge of the Special Court is vacant by reason of absence
or leave, the duties of the officer shall be performed by such Judge of the
High Court within the local limits of whose jurisdiction the Special Court is
situated as the Chief Justice of that High Court may, with the concurrence of
the Chief Justice of India, nominate for the purpose and the judge so appointed
shall have all the jurisdiction and powers of a Judge of the Special Court
including the powers to pass final orders.
6.
Cognizance of cases by Special Court - The Special Court shall take cognizance
of or try such cases as are instituted before it or transferred to it as
hereinafter provided.
7.
Jurisdiction of Special Court - Notwithstanding anything contained in any other
law, any prosecution in respect of any offence referred to in sub-section (2)
of Section 3 shall be instituted only in the Special Court and any prosecution
in respect of such offence pending in any court shall stand transferred to the
Special Court.
9.
Procedure and powers of Special Court - (1) The Special Court shall, in the
trial of such cases, follow the procedure prescribed by the Court for the trial
of warrant cases before a magistrate.
(2)
Save as expressly provided in this Act, the provisions of the Code shall,
insofar as they are not inconsistent with the provisions of this Act, apply to
the proceedings before the Special Court and for the purposes of the said
provisions of the Code. The Special Court shall be deemed to be a Court of
Session and shall have all the powers of a Court of Session, and the person
conducting a prosecution before the Special Court shall be deemed to be a
Public Prosecutor.
(3)
The Special Court may pass upon any person convicted
by it any sentence authorised by law for the punishment of the offence of which
such person is convicted.
(4)
While dealing with any other matter brought before it, the Special Court may adopt such procedure as it may
deem fit consistent with the principles of natural justice." Mr.
Chidambaram submitted that Section 6 of the Special Courts Act provides that
the Special Court shall take cognizance of or try
such cases as are instituted before it or transferred to it hereinafter.
He
points out that the Section provides that all prosecutions in respect of
offences referred to in Sub-section (2) of Section 3 of the Act are to be
instituted in the Special
Court and that if a
prosecution was pending in any other court, it stood transferred to the Special Court.
Mr.
Chidambaram submitted that Section 9 clinches the matter in his favour. He
submitted that Section 9 specifically provides that the provisions of the
Criminal Procedure Code apply to the proceedings before the Special Court and that for the purposes of the
proceedings the Special
Court was a court of
Sessions. He submitted that the Special Court, having been deemed to be a court
of Sessions and being a criminal Court as envisaged under Section 6 of the
Criminal Procedure Code, was subordinate to the High Court. He submitted that
the Code of Criminal Procedure applied to all proceedings before the Special Court, unless they were inconsistent with
the provisions of the Special
Court. He submitted
that in the Special Courts Act there was no provision inconsistent with Section
407 of the Criminal Procedure Code. He submitted that Section 407 of the
Criminal Procedure Code applied and could be used by the High Court.
Mr.
Chidambaram submitted that if this Court were to hold that the Special Court was not a Court subordinate to the
High Court then it would mean that there was no provision of transfer of cases
from one Special Court to another. He submitted that in
that event the Special Courts Act would become unconstitutional. Mr. Chidambaram
submitted that attempt of the Court should be to interpret in a manner which
did not make the Special Courts Act unconstitutional.
In
support of his submission Mr. Chidambaram relied upon the case of "In Re
the Special Courts Bill, 1978" reported in 1979 (2) S.C.R. 476. In this
case the constitutional validity of a Special Courts Bill was being considered.
Mr. Chidambaram drew the attention of this Court to the provisions of the Bill
as reproduced in the Judgment and the provisions of the Special Courts Act of
1979 which followed.
(For
the sake of convenience this Act will hereinafter be referred to as the 1979
Act.) Mr. Chidambaram pointed out that most of the provisions of the 1979 Act
were almost identical to the provisions of the Special Courts Act. Mr.
Chidambaram points out that the Constitution Bench of this Court, consisting of
Seven Judges, had while considering the Bill observed that unless there was a
provision for transferring a case from one court to another the Bill would be
constitutionally invalid. He submitted that because of this opinion expressed
by the Constitution Bench, the Attorney General made a statement that the
Government had agreed to incorporate a provision empowering the Supreme Court
to transfer a case from one
Special Court to
another. Mr. Chidambaram submitted that pursuant to this Section 10 was
incorporated. Section 10 reads as follows :
"10.
(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 be transferred from one
Special Court to
another Special Court.
(2)
The Supreme Court may act under this section only on the application of the
Attorney-General of India or of a party 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 a 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."
Mr. Chidambaram submitted that even though most of the other provisions of the
Special Courts Act are identical and have been copied from the 1979 Act, a
provision similar to Section 10 has not been incorporated in the Special Courts
Act. He submitted that if this Court holds that Section 407 Cr.P.C. does not
apply, there would be no other provision for transfer and the Special Courts
Act would become unconstitutional.
Mr.
Chidambaram submitted that another reason for holding that the Special Court was subordinate to the High Court
was that the Special
Court was under the
superintendence of the High Court in its constitutional jurisdiction under
Articles 226 and 227. In this behalf he relied upon the following observations
of Chief Justice Chandrachud (as he then was) in the case of "In Re the
Special Courts Bill, 1978" :- "One may also not be unmindful of the
benign presence of article 226 of the Constitution which may in appropriate
cases be invoked to ensure justice." Mr. Chidambaram submitted that this
shows that the Constitution Bench was of the opinion that the Special Court would be under the superintendence
of the High Court in the jurisdiction under Article 226. He submitted that this
also shows that the Constitution Bench was of the opinion that the Special
Courts were subordinate to the High Court.
Mr.
Chidambaram also relied upon the case of L Chandra Kumar vs. Union of India and
others reported in 1997 (3) S.C.C. 261.
In
this case the question was whether the Administrative Tribunals, created under
the Administrative Tribunals Act, 1985, were subject to writ jurisdiction of
the High Court under Articles 226 and 227 of the Constitution of India. The
Constitution Bench of this Court noted, in para 12, that a person would not be
qualified for appointment as a Chairman unless, he is or had been, a Judge of a
High Court. The Constitution Bench then held that the power vested in the High
Courts to exercise judicial superintendence over the decisions of all courts
and tribunals within their respective jurisdictions is also part of the basic
structure of the Constitution. It was held that the situation where the High
Courts had been divested of all other judicial functions apart from that of
constitutional interpretation was to be avoided.
Mr.
Chidambaram also relied upon the case of T. Sudhakar Prasad vs. Government of
Andhra Pradesh & others reported in 2001 (1) S.C.C. 516. In this case the
Administrative Tribunal had passed an order punishing for contempt. The
question was whether under Articles 226 and 227 the High Court had jurisdiction
over Administrative Tribunals' functions under Section 17 of the Administrative
Tribunals Act. It may only be mentioned that Section 17 of the Administrative
Tribunals Act empowered the Administrative Tribunals to punish for contempt of
itself and vested in it the same jurisdiction and powers as a High Court had.
The question before this Court was whether an order passed under Section 17 of
the Administrative Tribunals Act was subject to judicial scrutiny by the High
Court under Articles 226 and 227 of the Constitution of India.
This
Court, inter alia, held as follows :
"The
Administrative Tribunals as established under Article 323-A and the Administrative
Tribunals Act, 1985 are an alternative institutional mechanism or authority,
designed to be not less effective than the High Court, consistently with the
amended constitutional scheme but at the same time not to negate judicial
review jurisdiction of constitutional courts.
Transfer
of jurisdiction in specified matters from the High Court to the Administrative
Tribunal equates the Tribunal with the High Court insofar as the exercise of
judicial authority over the specified matters is concerned. That, however, does
not assign the Administrative Tribunals a status equivalent to that of the High
Court nor does that mean that for the purpose of judicial review or judicial
superintendence they cannot be subordinate to the High Court." (underlining
provided) Mr. Chidambaram strongly relied on the underlined observations and
submitted that this judgment clearly lays down that the Tribunal was
subordinate to the High Court. Mr. Chidambaram submitted that the same would be
the position of the Special
Court.
Mr.
Chidambaram also relied upon the case of State of A.P. and others vs. K. Mohanlal
and another reported in 1998 (5) S.C.C.468. In this case a Special Court had
been established under Section 7 of the Andhra Pradesh Land-Grabbing
(Prohibition) Act, 1982. In this case also it was held that the power of
judicial review under Articles 226 and 227 and 32 of the Constitution were an
important check and were not taken away.
Mr.
Chidambaram submitted that the above authorities clearly establish that the
High Court has superintendence over the Special Court under Articles 226 and
227. He submitted that the Special Court is thus subordinate to the High Court
and that Section 407 would apply.
Mr.
Chidambaram submitted that even if Section 407 of the Criminal Procedure Code
did not apply, the High Court could always exercise its powers under Articles
226 and 227 of the Constitution.
He
submitted that the Appellant would then invoke that jurisdiction and apply for
transfer of the case from one Judge to another.
In
support of his last submission Mr. Chidambaram relied upon the authority in the
case of Mohamed Abdul Raoof and others vs.
State
of Hyderabad reported in A.I.R.(38) 1951 Hyderabad 50, wherein it is held that
Article 227 of the Constitution was applicable to the Court of the Special
Tribunal constituted under the Special Tribunals Regulation and the powers of
superintendence conferred on the High Court were sufficiently wide to transfer
cases from one Special Court to another.
On the
other hand Mr. Malhotra pointed out that the Special Court is manned by sitting
Judges of the High Court. He pointed out that there is only one Special Court.
He submitted that the sitting Judges of the High Court, who man the Special
Court, not only take up matters pertaining to the Special Court but also on
occasions take up matters of the High Court.
Mr. Malhotra
also pointed out Section 5-A of the Special Courts Act, which reads as follows
:
"5A.
Where the Special Court consists of two or more Judges, the Chief Justice of
the High Court within the local limits of whose jurisdiction the Special Court
is situated may, from time to time, by general or special order, make
provisions as to the distribution of cases amongst the Judges and specify the
matters which may be dealt with by each of such Judge." Mr. Malhotra
submitted that a conjoint reading of the various provisions of the Special
Court Act makes it very clear the Special Court was not a Court subordinate to
the High Court. He submitted that under Section 407 of the Criminal Procedure
Code mere judicial superintendence was not sufficient. He submitted that what
was required was both judicial and administrative subordination. He submitted
that the Special Court could only be subordinate to the High Court if the High
Court had both judicial as well as administrative control of the Special Court.
He submitted that it was clear that the High Court had no administrative
control over the Special Court.
Mr. Malhotra
also relied upon Section 11-A and submitted that Section 11-A showed that the
Special Court was in fact equivalent to the High Court. He further pointed out
that Section 10 of the Special Courts Act provided that an Appeal, even from an
interlocutory order of the Special Court, would lie only to the Supreme Court.
Mr. Malhotra
further submitted that Section 9 of the Special Courts Act merely provided that
Special Court would be deemed to be a Court of Session for the purposes of the
proceedings before that Court. He submitted that for the purposes of criminal
proceedings before it the Special Court
may be deemed to be a Court of Session but that did not make it a Court
subordinate to the High Court.
We
have heard the parties. In our view the submissions of Mr. Chidambaram, that
the Special Court is a Court subordinate to the High
Court, cannot be accepted. The authorities in the case of "Re The Special
Courts Bill, 1978", instead of supporting Mr. Chidambaram, is entirely
against him. On a question from Court, it was fairly admitted by Mr.
Chidambaram that in the entire judgment there was no reference to Section 407
of the Criminal Procedure Code. It is impossible to believe that seven eminent
Judges of this Court were not aware or had lost sight of Section 407 of the
Criminal Procedure Code. Many of those Special Courts were being established in
Delhi. As pointed out by Mr. Chidambaram
it was held that if there was no power to transfer then the Bill would be
unconstitutional.
Had
those Courts were subordinate to the High Court Section 407 would have applied.
Then the question of incorporating a provision of transfer would not have
arisen. It is clear that the Court proceeded on the footing that Section 407
did not apply because the Special Courts were not subordinate to the High
Court. That the Court proceeded on the footing that the Special Courts were not
subordinate to the High Court is very clear from the observations made by
Justice Shinghal, J. who delivered a separate minority judgment. In this
judgment after considering the various constitutional provisions he inter alia,
observed that the High Court had been vested with all the necessary
jurisdiction and powers to stand out as the repository of all judicial
authority within the State and that it was not contemplated by the Constitution
that any civil or criminal court in the State should be outside its control.
Justice Shinghal in his minority judgment then goes on to hold that Clauses 5
and 7 of the Bill (by which Special Courts are created and sitting Judges of
the High Court are appointed) are unconstitutional. Thus the single Judge is
holding that there could be no Court in the State over which the High Court had
no control.
Such a
view could only be taken if the Court was proceeding on the footing that the
Special Courts were not subordinate to or under the control of the High Court.
Of course this view is not accepted by the majority, who hold that the
provisions are constitutionally valid. But in this behalf also the following
observations of Justice Chandrachud, made on behalf of majority, are very relevant
:
"It
is true that the Special Courts created by the Bill will not have the
Constitutional status which High Courts have because such courts are not High
Courts as envisaged by the Constitution. Indeed, there can but be one High
Court only for each State, though two or more States or two or more States and
a union territory can have a common High Court. It is also true to say that the
Special Courts are not District Courts within the meaning of article 235, with
the result that the control over them will not be vested in any High Court. But
we do not accept that by reason of these considerations, the creation of
Special Courts is calculated to damage or destroy the constitutional safeguards
of judicial independence. Our reasons for this view will become clearer after we
deal with the questions arising under articles 14 and 21 but suffice it to say
at this stage that the provision in clause 10(1) of the Bill for an appeal to
the Supreme Court from every judgment and order of a Special Court and the
provision for transfer of a case from one Special Court to another (which the
Bill does not contain but without which, as we will show, the Bill will be
invalid) are or will be enough to ensure the independence of Special Courts.
Coupled
with that will be the consideration, as we will in course of our judgment point
out that only sitting judges of the High Courts shall have to be appointed to
the Special Courts. A sitting judge of the High Court, though appointed to the
Special Court, will carry with him his constitutional status, rights,
privileges and obligations. There is no reason to apprehend that the mere
change of venue will affect his sense of independence or lay him open to the
influence of the executive." These observations show that the Special
Courts were not a High Court. At the same time they are not District Courts
within the meaning of Article 235. This shows that the control over Special
Courts does not vest in the High Court. This judgment notes therefore, that
Special Court not being a District Court, High Court would have no control over
it. But the majority accepts that the creation of such a Court does not destroy
the constitutional safeguards of judicial independence.
That
the Special Court is not subordinate to the High
Court is also very clear from the case of T. Sudhakar Prasad (supra), referred
to by Mr. Chidambaram. In this case this Court has held as follows :
"18.
Subordination of Tribunals and courts functioning within the territorial
jurisdiction of a High Court can be either judicial or administrative or both.
The power of superintendence exercised by the High Court under Article 227 of
the Constitution is judicial superintendence and not administrative
superintendence, such as one which vests in the High Court under Article 235 of
the Constitution over subordinate courts. Vide para 96 of L. Chandra Kumar case
(supra) the Constitution Bench did not agree with the suggestion that the
Tribunals be made subject to the supervisory jurisdiction of the High Courts
within whose territorial jurisdiction they fall, as our constitutional scheme
does not require that all adjudicatory bodies which fall within the territorial
jurisdiction of any High Court should be subject to its supervisory
jurisdiction. Obviously, the supervisory jurisdiction referred to by the Constitution
Bench in para 96 of the judgment is the supervision of the administrative
functioning of the Tribunals as is spelt out by discussion made in paras 96 and
97 of the judgment.
19.
Jurisdiction should not be confused with status and subordination. Parliament
was motivated to create new adjudicatory fora to provide new, cheap and
fast-track adjudicatory systems and permitting them to function by tearing off
the conventional shackles of the strict rule of pleadings, strict rule of
evidence, tardy trials, three/four-tier appeals, endless revisions and reviews
- creating hurdles in the fast flow of the stream of justice." (emphasis
supplied) Thus from this judgment it is clear that only judicial
superintendence is envisaged under Articles 226 and 227. There is no
administrative control or superintendence. The High Court does not have
administrative control over the Special Court under Article 235 of the
Constitution of India.
Also
to be noted that the Special Court is manned by a sitting Judge of the High Court.
On occasions the same Judge also takes up matters of the High Court. Also
Section 5 provides that if the Judge manning the Special Court is absent or on
leave the duties could be performed by another Judge of the High Court
nominated by the Chief Justice of the High Court in consultation with the Chief
Justice of India. It would therefore not be in the fitness of things that for
purposes of Section 407 Criminal Procedure Code, a sitting Judge of the High
Court, performing simultaneous duties be deemed subordinate to the High Court
merely because he is trying cases of the Special Court.
In
this view of the matter we hold that the Special Court is not subordinate to
the High Court and that the High Court would have no power under Section 407 of
the Criminal Procedure Code to transfer a case from one Judge of the Special
Court to another.
There
is a further and greater difficulty in the Appellants' way. In the present case
there is only one Special Court. There may be two Judges presiding over the
Special Court but that there still is only one Special Court.
As
already stated above that Special Court is not subordinate to the High Court.
What the Appellants are desirous of is transfer from one Judge of the Special
Court to another Judge of the Special Court. On a question from Court, as to
whether there is any provision in law which empowered any Court to transfer a
case from one Judge of the Supreme Court to another Judge of the Supreme Court
or from one Judge of the High Court to another Judge of the High Court, Mr.
Chidambaram fairly conceded that there was no such power and that the only
approach would be either to make an application before the concerned Judge to recuse
himself or to administratively apply either to the Chief Justice of India (in
the case of Supreme Court) or to the Chief Justice of the concerned High Court.
He added that there have been cases where this Court whilst disposing of an SLP
or an Appeal has, whilst remanding the matter, directed that the same be placed
before some other Judge. He however fairly conceded that such directions were
not pursuant to any power to transfer. In our view this is an identical
situation. It is for that reason that Section 10, which had been incorporated
in the 1979 Act was advisedly not incorporated in the Special Courts Act.
In
this Appeal we are not concerned with the question whether the High Court would
have judicial superintendence under Article 226 and/or 227 and/or whether in
exercise of such jurisdiction, even if there is one, whether a High Court would
or could transfer a case from one Judge to another. We therefore express no
opinion thereon.
In
this view of the matter, we hold that Section 407 Cr.P.C. does not apply. We
see no reason to interfere with the impugned Orders.
The
Appeals stands disposed of accordingly. There shall be no Order as to costs.
(K. T.
THOMAS) (S. N. VARIAVA) July 31, 2001.
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