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 Section 56 of the Foreign Exchange Regulation Act, 1973 (for short the FERA) now repealed by the Foreign Exchange Management Act, 1999 provides, inter alia, that for a violation of its provisions, the maximum punishment would be imprisonment which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 years and with fine. Therefore, effectively transferring the petitioners’ case to a Special Judge (of the rank of a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge) functioning under the Criminal Law Amendment Act, 1952 (for short the CLA Act) meant its trial by a court that lacked jurisdiction over the subject matter. In support of this contention, great reliance was placed on some passages in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602.
5. The question in Antulay (to the extent relevant) was whether this Court could have transferred the case against Antulay from the Special Judge appointed under the Criminal Law Amendment Act, 1952 to the High Court. (See R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183). This Court answered the question in the negative and three principal reasons, relevant to the present case, were given for this conclusion.
6. Firstly, it was noted that Section 7 of the CLA Act gave exclusive jurisdiction to the Special Judge to try the offences under sub-section (1) of Section 6 of the CLA Act. Section 7 of CLA Act reads as follows:-
“Cases triable by Special Judges: - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), or in any other law the offences specified in sub-section (1) of Section 6 shall be triable by Special Judges only.
(2) Every offence specified in sub-section (1) of Section 6 shall be tried by the Special Judge for the area within which it was committed, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government.
(3) When trying any case, a Special Judge may also try any offence other than an offence specified in Section 6 with which the accused may, under the Code of Criminal Procedure, 1898 (5 of 1898), be charged at the same trial.”
7. This Court noted that since it is only the Special Judge who could try offences under Section 6 of CLA Act, the case against Antulay could not have been transferred to the High Court. It was noted that the trial by a Special Judge is a sine qua non for the trial of offences under Section 6 of CLA Act and even this Court could not pass an order not authorized by law.
8. Secondly, Section 7(1) of CLA Act provides for trial of the case by the Special Judge notwithstanding anything contained in the Code. Therefore, the statutory power available 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 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 the 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.”
9. The third reason related to the power of transfer available to this Court under Article 142 of the Constitution. In this context, reference was made to a Constitution Bench decision of this Court in Prem Chand Garg v. Excise Commissioner, 1963 Supp (1) SCR 885 wherein it was observed that:
“The powers of this Court are no doubt very wide and they are intended to be and will always be exercised in the interest of justice. But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.”
10. Since the order of this Court transferring the case from the Special Judge to the High Court was contrary to the statutory law and (as held in a later part in Antulay) contrary to Article 14 and Article 19 of the Constitution, the order of transfer was liable to be set aside.
11. In this context, this Court also noted that the power to create or enlarge jurisdiction is legislative in character and no court, whether superior or inferior or both combined, could enlarge the jurisdiction of a court. On this basis, inter alia, this Court concluded that the transfer of Antulay’s case from the Special Judge to the High Court was erroneous in law.
12. Antulay subsequently came up for consideration in Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392. In paragraph 14 of the Report, it was noted that the express language of Section 7(1) of the CLA Act, took away the right of transfer of cases contained in the Code to any other 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 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.”
13. In so far as the present case is concerned, it is apparent from a reading of Section 56 of the FERA as also Section 61 of the FERA that exclusive jurisdiction has not been conferred on the Magistrate to try cases relating to a violation of the provisions of the FERA. Absent jurisdictional exclusivity, the principle of law laid down in Antulay is not applicable and the Special Judge could have been conferred jurisdiction to try the case against the petitioners.
Right of appeal
14. It was contended that assuming that at law the case could validly have been transferred to the Special Judge, the petitioners are seriously prejudiced in as much as their right of appeal from the decision of a Magistrate to a Sessions Judge is taken away. Due to this prejudicial action, which was taken by the High Court without hearing the petitioners, the notification conferring power on the Special Judge to try the case should be struck down.
15. The right of appeal available to the petitioners in the present case is not taken away by transferring the case from the Magistrate to the Special Judge. The petitioners continue to have the right to appeal, but it is only the forum that has changed. They can now prefer an appeal from the order of the Special Judge to the High Court. Therefore, it is not as if the petitioners are denuded of any right to agitate their cause in a superior forum by the transfer of the case to the Special Judge.
16. It is now well settled that a litigant has neither a right to appeal to a particular forum nor to insist on a particular procedure being followed in his case. This was settled way back in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1953 SCR 118 wherein a Constitution Bench of this Court held:
“A person accused of the commission of an offence has no fundamental right to trial by a particular court 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 Act, will have to be lodged in a forum provided for by the repealing Act.”
19. In T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177 it was observed in paragraph 17 of the Report that a person accused of the commission of an offence has no right to trial by a particular procedure. This view was followed in M/s Rai Bahadur Seth Shreeram Durgaprasad v. Director of Enforcement, (1987) 3 SCC 27.
20. Therefore, it cannot be seriously urged that the petitioners were prejudiced by a change of the appellate forum.
Procedure for transfer:
21. Was the transfer of the case by the High Court at all permissible in law without following the procedure laid down in Section 407 of the Code?
22. A similar question came up for consideration in Ranbir Yadav and this Court noted the duality of power in the High Court. It was observed that the High Court has the judicial power of transfer of a case from one court to another under Section 407 of the Code. It also has the administrative power to transfer a case from one court to another under Article 227 of the Constitution.
23. In the context of Article 227 of the Constitution, this Court observed in paragraph 12 of Ranbir Yadav that the High Court has superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction and that in its plenary administrative power, the High Court could transfer a case from one court to another. It was further held that so long as the power is exercised for administrative exigency, without impinging upon or prejudicially affecting the rights and interests of the parties to any judicial proceeding, there is no reason to hold that administrative powers must yield to judicial powers simply because in a given circumstance they coexist.
24. In the present case, the 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.
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 powers vested in them by the Code.”
27. In Akalu Ahir v. Ramdeo Ram, (1973) 2 SCC 583 this Court once again adverted to the power of revision invested in a superior Court and described it as an “extraordinary discretionary power” to set right grave injustice. Clearly, therefore, it cannot be said that a litigant has a “right” to have an adverse order revised by a superior court. On the contrary, if there is any “right” to revise, it is invested in the superior court.
28. While the revisional power of a superior court actually enables it to correct a grave error, the existence of that power does not confer any corresponding right on a litigant. This is the reason why, in a given case, a superior court may decline to exercise its power of revision, if the facts and circumstances of the case do not warrant the exercise of its discretion. This is also the reason why it is felicitously stated that a revision is not a right but only a “procedural facility” available to a party. If the matter is looked at in this light, the transfer of a case from a Magistrate to a Special Judge does not take away this procedural facility available to the petitioners. It only changes the forum and as already held above, the petitioners have no right to choose the forum in which to file an appeal or move a petition for revising an interlocutory order.
29. Reliance was placed by learned counsel for the petitioners on a Division Bench decision of the Delhi High Court in A.S. Impex Ltd. v. Delhi High Court, 107 (2003) DLT 734. This reliance is not only misplaced but, in my opinion, that decision should be overruled as not laying down the correct law.
30. In that case, the High Court administratively decided to transfer cases filed under Section 138 of the Negotiable Instruments Act, 1881 on or before 31st December 2001 and pending before the Magistrates to the Additional Sessions Judges. A notification for transfer of cases was accordingly issued and this was struck down by the Delhi High Court by, inter alia, relying on the law laid down in Antulay. As already noted above, the law laid down in Antulay has limited application and is not relevant to cases such as the one we are dealing with. This was clearly explained in Ranbir Yadav but the Delhi High Court ignored the observations of this Court without much ado by holding: “In that case the Court transferred the case from the Court 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 formality and overrule A.S. Impex since it does not lay down the correct law in this regard.
32. For the reasons abovementioned, the Special Leave Petitions are dismissed.
……………………..J ( Madan B. Lokur ) New Delhi;
September 26, 2013
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