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TMI Blog1988 (4) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, [1984] S.C.R. 495) is found at page 557 of the Report. It reads thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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, [1959] S.C.R. 1276 it is held that the trial 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 violated thereby? 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow 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 the trial that his fundamental rights under Article 14- and Article 21 are being violated even though he may have a remedy of a restricted character ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adha 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 constitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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