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TMI Blog2008 (5) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... he Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, for short "the Special Court Act", came into force on 6-6-1992. The Special Court Act created a special mechanism for trial of offences committed under the Act and in terms of section 2( d ) the Special Court was to be established under sub-section (1) of section 5. Section 5 of the Special Court Act lays down that the Central Government shall, by notification in the Official Gazette, establish a court to be called the Special Court. The Special Court shall consist of a sitting Judge 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. Section 6 lays down that the Special Court shall take cognizance of or try such cases as are instituted before it or transferred to it in terms of the Act. Section 7 defines the jurisdiction of the Special Court and lays down that 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. It further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of process against ITC Limited and hence, issue process against ITC Limited for the offences punishable under sections 420, 414, 411, 403, 120B, 109 read with 34 of IPC. Issuance of process is made returnable on 27-7-2007. 5.Miscellaneous application is disposed of in above terms." This order is assailed by ITC Limited, mainly on the ground that this was not an order in terms of section 319 of the Criminal Procedure Code as no evidence has been discussed by the learned Judge of the Special Court on the basis of which he concluded that there was evidence which warranted arraying of the petitioner as accused in the case. 6. A preliminary objection was taken by the learned Advocate General that a writ petition was not maintainable and if the petitioner was aggrieved of the order passed by the Special Court, the only remedy before him was to file an appeal before the Supreme Court in terms of section 10 of the Special Court Act. Learned Senior Counsel appearing for the petitioner submitted that an appeal was not available because the appeal would only lie against an order which was not interlocutory order and according to the learned Senior Counsel the impugned order was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of emergency and they needed to be tried by the Special Courts. Section 7 of the Bill provided that a Special Court would be presided over by a sitting Judge of the High Court in India or a person who had held office as a Judge of the High Court in India and would be nominated by the Central Government in consultation with the Chief Justice of India. Section 9 of the Bill provided that the Special Court would follow, in the trial of cases, the procedure prescribed by the Criminal Procedure Code for the trial of warrant cases before the Magistrate. Section 10(1) of the Bill provided that notwithstanding anything contained in the Criminal Procedure Code, an appeal would lie as of right from any judgment or order of a Special Court to the Supreme Court of India both on facts and on law. Sub-section (2) of section 10 provided that no appeal or revision would lie to any court from any judgment or order of a Special Court except as provided under sub-section (1) of section 10. The contention of the learned Senior Counsel for the petitioner is that even though the Special Court created by the Special Court Act was headed by a Judge, who was a sitting Judge of the High Court, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that means that the orders of the Special Court in appropriate cases can be subject to judicial scrutiny by the High Court under article 226 of the Constitution of India. 8. Reference is also given of L. Chandra Kumar v. Union of India [1997] 3 SCC 261. This is a well celebrated case relating to creation of Tribunals. The contention of Shri Shanti Bhushan, learned Senior Counsel, is that even in this judgment the Supreme Court acknowledged and recognised the power of judicial review of High Court under article 226 of the Constitution although by virtue of article 323A and article 323B of the Constitution of India the jurisdiction of all courts except the jurisdiction of Supreme Court under article 32 has been excluded. The Court still found that the High Court jurisdiction under article 226 of the Constitution and Supreme Court jurisdiction under article 32 of the Constitution could not be excluded even by constitutional amendment. The Supreme Court in para 91 of the judgment said : ". . . We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of the Tribunals under article 227 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court exercising its jurisdiction under article 226 and article 227 of the Constitution. According to a judgment of the Andhra Pradesh High Court because of L. Chandra Kumar s case ( supra ) the Administrative Tribunal had become subor-dinate Tribunal to the High Courts and therefore section 17 of the Ad-ministrative Tribunals Act had become unconstitutional/otiose. The matter was carried to the Supreme Court and the Supreme Court while dealing with the powers of the High Courts under articles 226 and 227 of the Constitution of India had occasion also to explain some of the observations made in L. Chandra Kumar s case ( supra ). The Supreme Court was of the view that 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 over such Tribunals under article 227 of the Constitution was judicial superintendence and not administrative super-intendence. Article 235 of the Constitution vested as High Court with powers of judicial superintendence and not administrative super-intendence. It took note of para 96 of L. Chandra Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case the question before the Supreme Court was the correctness of an earlier judgment. In relation to section 11 of the Arbitration and Conciliation Act, 1996. The question framed by the Court was, What is the nature of the function of the Chief Justice or his designate under section 11 of the Arbitration and Conciliation Act, 1996 . By majority, the Court ultimately held that the power exercised by the Chief Justice or his nominee under section 11 of the Arbitration and Conciliation Act, 1996 was not an administrative power but it was a judicial power. While analysing the provisions of the Arbitration and Conciliation Act, 1996 vis-a-vis the powers of the High Court under article 226 or article 227 of the Constitution of India. The Supreme Court did not hold that the High Courts do not have power to interfere with such orders. What it said was that some High Courts have proceeded on the basis that any order passed by a Tribunal during arbitration was capable of being challenged under article 226 or article 227 of the Constitution. But the Supreme Court found that there was warrant for such an approach. This was held in the light of provisions of sections 32 and 34 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, Vol. 22 page 734), the Interlocutory Order is defined as - An order which does not deal with final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed interlocutory . An interlocutory order though not conclusive of the main dispute, may be conclusive as to the subsidiary matter with which it deals. Generally speaking, a judgment or order which determines the principal matter in question is termed final . In this connection reliance is placed on the judgment of the Supreme Court in V.C. Shukla v. State 1980 Supp. SCC 92. In this judgment Mr. Justice S. Murtaza Fazal Alia, as His Lordship then was, analysed the whole law on the subject including the definition given in Halsbury s Laws of England, Corpus Juris Secundum and then summed up the law. 11. Before a reference is made to the law as was laid by the Supreme Court in V.C. Shukla s case ( supra ), it will be profitable to note that section 11 of the Special Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any remedy, because in suitable cases, the accused can always move this Court in its jurisdiction under article 136 of the Constitution even against an order framing charges, against the accused. Thus, it cannot be said that by not allowing an appeal against an order framing charges, the Act works serious injustice to the accused." (p. 122) Learned Advocate General submits that if the application seeking impleadment of the petitioner as an accused had been dismissed nothing would have remained before the Court. Therefore, an order allowing or rejecting the application under section 319 of the Criminal Procedure Code was a final order. But we feel, on the basis of the judgment in V.C. Shukla s case ( supra ), that same analogy can be applied which has been applied to discharge or framing of charge. If the application under section 319 of the Criminal Procedure Code in the present case has been rejected the matter would have come to an end as far as the petitioner was concerned. But if the application was allowed, he becomes an accused and he has to face the trial. In view of the propositions laid down by the Supreme Court, it cannot be held that the present order was a final ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial Judge, a reference to the precedent lying down the parameters of powers of Court under section 319 of the Criminal Procedure Code would be beneficial. Learned Senior Counsel has taken us through the judgment of the Supreme Court in Michael Machado v. Central Bureau of Investigation [2000] 3 SCC 262, in relation to the invocation of powers under section 319 of the Criminal Procedure Code in appropriate situations. Paragraphs 11 and 12 of the said judgment read thus : "11. The basic requirements for invoking the above section, is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en. In Lok Ram v. Nihal Singh [2006] 10 SCC 192, the Supreme Court held that the power under section 319 of the Criminal Procedure Code was a discretionary power and such discretion must be exercised judicially having regard to the facts and circumstances of the case. It was held that power was extraordinary power and should be used very sparingly and for compelling reasons. Para 11 of this judgment reads thus : "11. Power under section 319 of the Code can be exercised by the court suo motu or on an application by someone including the accused already before it. If it is satisfied that any person other than the accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in section 319 contemplates the evidence of witnesses given in court. Under sub-section (4)(1)( b ) of the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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