LexA.R. ANTULAY versus R.S. NAIK & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A.R. ANTULAY
A
v.
R.S. NAlK & ORS.
OCTOBER 29, 1986
[E.S. VENKATARAMIAH AND SABY ASACHI MUKHARJI, JJ.l
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Supreme Court Rules, 1966 Order XVI read .
With Order XXLVII-Revocation of special leave-Whether an
application for revocation of special leave can be granted by the
\. §upnmie Court .when in a case in the presence of ihe counsel for th51
""' _/ respondents and after hearing his submissions the said special leave was
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granted.
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HELD: Having regard to the varloos mpects of the case llDCI the
important points of law which arise for consideration the petition to
revoke the special leave cannot be granted. Further the special leave,
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was granted by the Court in the presence of the coumel-for the respon-
dents and after hearing tm submissions. The petition has not only
culminated in criminal appeal hnt the very same counsel has made a
request that the case should he referred to a Constitu1ioo Bench. [92B, 9IH]
CRIMINAL APPELLATE JURISDICTION: Criminal Miscel-
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laneous Petition No. 4248 of 1986
IN
Criminal Appeal No. 468 of 1986
From the Judgment and Order dated 24. 7. 1986 of the Bombay
High Court in special Case No. 24 of 1982 ..
Ram Jethmalani and Miss Rani Jethmalani for the Appellant .
P.P. Rao, R.S. Desai, M.N. Shroff, A.M. Khanwilkar and A.S.
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Bhasme for the Respondents.
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The following Order of the Court was delivered:
The Special ·leave was granted by this court in this case in the
presence of the learned counsel for the respondents and after hearing
his submissions. Today we are a5ked to revoke the leave already
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A.R. ANTULAY L
R.S. NAIK
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ched as early as on September II, 1981, his character and
integrity came under a cloud. Nearly 2V2 years have rolled
by and the case has not moved an inch further. An expediti-
ous trial Is primarily in the interest of the accused and a
mandate of Art. 21. Expeditious disposal of a criminal case
is in the interest of both the prosecution and the accused.
Therefore, special Case No. 24 of 1982 and Special Case
.No. 3/83 pending in the Court of Special Judge, Greater
Bombay shri R.B. Sule are· withdrawn and transferred to .
the High Court of Bombay with a request to the learned
Chief Justice to assign these two. cases to a sitting Judge of
tlie High Court. On being so assigned, the learned Judge
may proceed to expeditiously dispose of the cases prefer-
ably by holding the trial from day to day."
In this case the following points arise for consideration:
I. If an order of transfer of a criminal case which purports
to violate Article 14 and Article 21 is passed against an
accused person b.y this Court without any pleading or
hearing or even consulting his wishes in that regard, can
h~ ;:iot question it by an independent petition since a
review is not an adequate remedy because the petitioner
in a revie.w petition (which by its very nature is of a
restricted character) has no right of personal hearing at
the stage of admission of the review petition?
2. Under the Criminal Law Amendment Act, 1952 an off-
ence punishable under section 5 of the Prevention of
C0rruption Act or under sections 161, 162, 163, 164, 165
and 165A of the Indian Penal Code can be tried only by
a Special Judge appointed under section 6 of that Act b.y
the State Government. An order of transfer by this
Court cannot be a substitute for an order of appoint-
ment to be made by the State Government under sec-
tion 6 of that Act. In Gurucharandas Chadha v. State of
Rajasthan, [1966] .2 S.C.R. 678 it is laid down that the
trial by a special Judge is the sine qua non of a trial
under that Act and a case cal) be trnsferred 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 Monda/ v. State of
West Bengal. [1959] S.C.R. 1276 it is held that the trial
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SUPREME COURT REPORTS
[ 1987] 1 S.C.R.
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by a Judge who is not authorised to try a case amounts
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to an incurable illegality and the trial would be a nullity.
In view of these decisions can the trial in this case pro-
ceed before a High Court Judge who is not a Special
Judge? It may be noted that section 7( 1) of the Criminal
B
Law Amendment Act, 1952 which opens with a non-
obstante clause prevails upon every provision in the
Criminal Procedure Code including sections 406 and 407
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