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Issues Involved:
1. Violation of Article 14 and Article 21 due to transfer order without the accused's consent. 2. Legality of trial by a High Court Judge not appointed as a Special Judge under the Criminal Law Amendment Act, 1952. 3. Right of appeal under the Criminal Procedure Code. 4. Speedier trial violating Article 14. 5. Challenge to judicial orders violating fundamental rights. 6. Impact of the crime's heinousness and the accused's status on Articles 14 and 21. 7. Binding nature of decisions given per incuriam. 8. Right to raise objections to trial before a non-appointed Judge. 9. Appointment of High Court Judges as Special Judges. 10. Liberal interpretation of Article 21. 11. Judicial discipline in referring cases to larger benches. 12. Effect of unconstitutional proceedings on subsequent decisions. Detailed Analysis: 1. Violation of Article 14 and Article 21: The Court considered whether an order transferring a criminal case, which violates Articles 14 and 21, can be challenged by the accused through an independent petition. The Court noted that a review petition is not an adequate remedy due to its restricted nature and lack of personal hearing at the admission stage. The accused's right to question the transfer order without his consent or hearing was upheld. 2. Legality of Trial by a High Court Judge: The Court examined whether a High Court Judge, not appointed as a Special Judge under section 6 of the Criminal Law Amendment Act, 1952, can preside over the trial. It was highlighted that an order of transfer by the Supreme Court cannot substitute the appointment required by the State Government. Citing previous decisions, the Court emphasized that a trial by an unauthorized Judge is a nullity and violates Article 21. 3. Right of Appeal: The Court discussed the accused's right to appeal under section 374(1) of the Criminal Procedure Code, 1973, which provides for an appeal to the Supreme Court against a High Court conviction under its extraordinary original jurisdiction. The applicability of this provision was questioned since the case was brought by a private person, potentially denying the accused an appeal as of right, thus violating Articles 14 and 21. 4. Speedier Trial Violating Article 14: The Court considered whether transferring the case to the High Court for speedy disposal contravenes the principle laid down in Anwar Ali Sarkar's case, resulting in a violation of Article 14. The observations of Justice Vivian Bose were cited, emphasizing that any procedure depriving substantial defense privileges is unreasonable and unjust. 5. Challenge to Judicial Orders: The Court addressed whether an accused can challenge a judicial order violating fundamental rights through an independent petition, even if a review petition is available. The comparison was made to the American Constitution, where a prisoner can challenge a conviction on constitutional grounds. 6. Impact of Crime's Heinousness and Accused's Status: The Court questioned whether the severity of the crime or the accused's societal status affects the interpretation and applicability of Articles 14 and 21. It was suggested that these factors should not influence the constitutional protections afforded to the accused. 7. Binding Nature of Decisions Given Per Incuriam: The Court explored whether a decision given per incuriam, i.e., without considering appropriate legal provisions, can be treated as a binding precedent. It was noted that such decisions might be disregarded in jurisprudence. 8. Right to Raise Objections: The Court considered whether the accused can raise objections to the trial before a High Court Judge not appointed as a Special Judge, without questioning the Supreme Court's transfer order. The distinction between territorial jurisdiction and the competence of the trial court was emphasized. 9. Appointment of High Court Judges as Special Judges: The Court discussed the possibility of the State Government appointing a High Court Judge as a Special Judge to satisfy both the transfer order and the Criminal Law Amendment Act. It was noted that such an appointment is restricted to Judges who have previously held certain judicial positions. 10. Liberal Interpretation of Article 21: The Court highlighted the evolving liberal interpretation of Article 21, extending its scope to issues previously not considered within its ambit. This broader interpretation was argued to apply more forcefully to criminally accused persons. 11. Judicial Discipline: The Court examined the practice of smaller benches referring cases to larger benches when disagreeing with earlier decisions. It was noted that such references are common and do not violate judicial discipline. The appropriateness of staying the trial pending the appeal's disposal was also discussed. 12. Effect of Unconstitutional Proceedings: The Court considered the potential impact of a finding that the High Court proceedings were unconstitutional on all subsequent proceedings and decisions. The implications of such a finding on the validity of prior orders were highlighted. The judgment concluded with the decision to refer the case to a larger bench of seven judges for a comprehensive examination of these issues. The prayer for vacating the stay was rejected, and directions were given for the case to be listed for hearing before the larger bench.
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