LexKAMLESH KUMAR AND ORS. versus THE STATE OF JHARKHAND AND ORS.
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(2013] 14 S.C.R. 263 KAMLESH KUMAR AND ORS. v. THE STATE OF JHARKHAND AND ORS. (Special Leave Petititon (Crl.) Nos.6219-20 of 2012) SEPTEMBER 26, 2013 [H.L. GOKHALE AND MADAN B. LOKUR, JJ.] Criminal Trial ::- . Transfer of trial - AdministrAtive power A B of High Court to effect transfer- Trial ot petitioners uls. 5~ o~ FERA before Magistrate - FERA replaced by FEMA - Full C Court of High Court passed resolution transferring the trial under FERA I FEMA to Special Judge hearing related Fodder scam cases - State Government issued notification empowering said Special Judge to the try the case of petitioners - Transfer of petitioner's trial to the Special Judge D - Legality of - Held: Though FERA came to be repealed and replaced by FEMA, in view of s.49(4) of FEMA, all offences committed under FERA continued to be governed by the provisions of FERA, as if that Act had not been repealed - s. 62 of FERA made the offence uls. 56 of FERA non- E cognizable - Besides, s.61(1) of FERA stated that 'it shall be lawful' for the Magistrate to pass the necessary sentence ul s. 56 of FERA - It does not state that the Magistrate alone is empowered to pass the necessary sentence, in which case the proceeding cannot be transferred from his Court - The F offence was a non-cognizable one, and therefore it was not mandatory that it ought to have been tried only by the Magistrate of the First Class - It cannot be said that the Magistrate's Court had an exclusive jurisdiction to try the cases relating to violations of the provisions of FERA, and those cases could not be transferred to the Special Judge - G High Court has power to transfer the cases and appeals u/ s.407 CrPC which is essentially a judicial power - It can also transfer cases by exercising its administrative power of 263 H 264 SUPREME COURT REPORTS [2013] 14 S.C.R. A superintendence available u!Art.227 of the Constitution - Constitution of India, 1950 - Art. 227 - Foreign Exchange Regulation Act, 1973- ss. 61and62, and ss.9(1) (a) and (b) and ss. 56, 64(2) - Foreign Exchange Management Act, 1999 - s.49(4) - Code of Criminal Procedure, 1973 - s.407. B Criminal Trial - Trial of petitioners u/s. 56 of FERA before Magistrate - FERA replaced by FEMA - Transfer of trial under FERA I FEMA to Special Judge hearing related Fodder scam cases - Whether right of appeal ava;table to the C petit'iuriers taken away by such transfer- Held (per Lokur, J.}, No - Petitioners continued to have the right to appeal, but it w.:1s only the forum that had changed - They could now prefer appeal from the order of the Special Judge to the High Court - Litigant neither has a right to appeal to a particular forum nor to insist on. a particular procedure being followed in his D case. Revision - Righ,J of - Held( per Lokur, J.): 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 E "n'ght" to revise, it is invested in the superior court - On facts, trnnsfer of criminal trial from a Magistrate to a Special Judge did not take away the "procedural facility" of revision available to the accused-petitioners - It only changed the forum - Petitioners have no right to choose the forum in which to file F an appeal or move a petition for revising an interlocutory order. One 'K', earlier working as the Director of Animal Husbandry department, Government of Bihar, was being prosecuted by the Central Bureau of Investigation (C.B.I.) G in the Court of Special Judge at Ranchi for conspiracy to defraud the State Go.vernment. During investigation, it was realized that 'K' had acquired huge movable as well as immovable assets in his own name, and in the name of his children at different places. 'K' and his children H KAMLESH KUMAR v. STATE OF JHARKHAND 265 were also therefore prosecuted in the case arising out of A this investigation. It was further revealed during the course of investigation, that petitioners- the children of 'K', had received huge amounts of Foreign Exchange. It was 8 suspected that these remittances were amounts arrange-cl by certain persons involved in the animal husbandry scam in violation of the provisions of the Foreign Exchange Regulation Act, 1973 (FERA). It was alleged that they had violated the provisions of Section C 9(1) (a) and (b) and 64(2) of the FERA, and rendered themselves liable to be prosecuted under Section 56 of t
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