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TMI Blog2013 (10) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the case to the Special Judge - Therefore, it cannot be seriously urged that the petitioners were prejudiced by a change of the appellate forum. 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 - Decided against appellant. - Special Leave Petition (Criminal) Nos. 6219-6220 of 2012 - - - Dated:- 26-9-2013 - H. L. Gokhale And Madan B. Lokur,JJ. JUDGMENT H. L. Gokhale, J These Special Leave Petitions (Crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (1) of Section 56, we may reproduce the said subsection. We may note at this stage that though FERA came to be rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 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 ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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