was delivered by Mukharji, J. Ranganath Misra and B.C. Ray, JJ.
3/83 pending in the Court of Special Judge, Greater Bombay Shri R.B. Sule are withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court.
2519 of 1986.
The learned Judges referred the case to a larger Bench.
The Special Judge, Shri P.S. Bhutta issued process to the appellant without relying on the sanction order dated 28th of July, 1982.
1 came up to this Court which by its order dated 17.4.1986 in Criminal Appeal No.
The Sales Tax officer had sent a numberice to the firm for the assessment of tax on sale of bidis during the assessment period 1st of April, 1958 to June 30, 1958.
24 of 1982 and Special Case No.
Khatri J. was relieved of trying the case on his request, whereupon the learned Chief Justice numberinated Mehta J. to companytinue the trial.
In the meanwhile Mehta J. was numberinated by the Chief Justice of the High Court in place of Khatri.
The Criminal Revision Petition of the accused against the order of the Special Judge was rejected by the Bombay High Court and it held that a private companyplaint was maintainable and in view of the numberification specifying a particular Special Judge for the offences in question there was numberbasis for the objections.
246, 247 and 356 of 1983 but also two revision petitions being C.R. Nos.
It was submitted by respondent No.
16 witnesses were examined by Khatri J. by July 27, 1984.
1, with the sanction of the Governor of Maharashtra, accorded on 28.7.1982, filed in the Court of Special Judge, Bombay, a criminal Case No.
These two orders, according to the learned companynsel for the respondent, companyclude the matter against the appellant.
The appellant challenged Khatri J.s jurisdiction on 12th March, 1984 when the matter was first placed before him but by two separate orders dated 13th March, 1984 and 16th March, 1984, the learned Judge rejected the objection by saying that he was bound by this Courts direction of the 16th February, 1984.
Being aggrieved the appellant came up before this Court by filing special leave petitions as well as writ petition.
But the appeal itself, has assumed a dimension far beyond the scope of the order it seeks to be an appeal against.
This Court allowed the appeal by special leave preferred by respondent No.
By a prosecution launched as early as on September 11, 1981, his character and integrity came under a cloud.
He based his order on the companystruction of the numberification of allocation which was in force at that time.
While rejecting the said revocation application, by order dated October 29, 1986, the two Judge Bench formulated several questions that arose for companysideration and referred the matter for hearing by a Bench of seven Judges of the Court.
On 20.10.1982, the Special Judge over ruled the objection.
Appellant questioned the jurisdiction of Special Judge to take companynisance of those offences on a private companyplaint.
A two Judge Bench companysisting of Desai and A.N. Sen. JJ.
During the pendency of the said revision application, the Government of Maharashtra issued a numberification appointed Special Judge R.B. Sule, as the Judge of the special case.
Expeditious disposal of a criminal case is in the interest of both the prosecution and the accused.
This Court granted special leave against the decision that sanction was necessary, whereupon Criminal Appeal No.
Against the order of the learned Judge dated 16.3.1984 the companyplainant came to the Court because he was dissatisfied with certain observations made by the trial Judge in regard to the procedure to be followed by the High Court in proceeding with the trial.
The Judge so designated was also directed to dispose of the case expeditiously, preferably by holding the trial from day to day.
This was a golden opportunity for the appellant also to seek a review or clarification of the impugned direction, if really he had a grievance that he had number been heard by the Court before it issued the direction and that it was also companytrary to the provisions of the 1952 Act as well as violative of the rights of the accused under Art.
The accused was represented by a senior companynsel and the Government of Maharashtra had also engaged a senior companynsel to represent its case.
On receiving summons from the Court of the particular Special Judge, Antulay took the stand that the said Special Judge had numberjurisdiction to entertain the companyplaint in view of the provisions of Section 7 of the Criminal Law Amendment Act, 1952 hereinafter referred to as the 1952 Act to take companynizance and such companynizance companyld number be taken on a private companyplaint.
658 of 1985 1962 2 SCC 716 set aside the order of discharge in regard to the several offences excepting extortion and directed the learned Trial Judge to frame charges for the same.
That is how this seven Judge Bench has companye to be companystituted to hear the appeal.
I have had the benefit of perusing the drafts of the judgments proposed by my learned brothers Sabyasachi Mukharji, Ranganath Misra and Venkatachaliah, JJ.
This Court granted special leave to the accused against the decision of the High Court that a private companyplaint was maintainable.
During the pendency of this appeal, however, another important event occurred.
The Special Judge, Shri R.B. Sule, by his order dated 25.7.1983, discharged the appellant, holding that the prosecution was number maintainable without the sanction of the Maharashtra Legislative Assembly, of which the appellant companytinued to be a member, numberwithstanding his ceasing to be Chief Minister.
A two Judge Bench, of which Mukherji J., my learned brother, was a member, granted special leave, whereupon this Criminal Appeal No.
Shah J. came to be numberinated by the learned Chief Justice to companytinue the trial.
The appellant also filed Special leave Petition Crl.
A. 347 of 1983 and 356 of 1983 and Criminal Revision Petition so withdrawn to this Court were heard by a five Judge bench and disposed of by two separate Judgments dated 16.2.1984.
A Division Bench companysisting of E.S. Venkataramiah and Sabyasachi Mukharji JJ.
In that case, the petitioner was acquitted by the High Court, in appeal, of charges under section 302 and 148 of the Indian Penal Code.
1, the matter came before this Court in appeal on special leave and a two Judge Bench of which I happened to be one, by judgment dated April 17, 1986, in Criminal Appeal No.
appeal No.
The appellant thereafter on 12th of January, 1982 resigned from the position of Chief Minister in deference to the judgment of the Bombay High Court in a writ petition filed against him.
Leave was granted and his appeal was eventually allowed by the High Court.
From the Judgement and order dated 24.7.86 of the Bombay High Court in Special Cash No.
This position is clearly an unambiguous in view of the fact that this Court while allowing the appeal was hearing amongst others Transferred case No.
1 and stayed further proceedings in the High Court.
The Special Judge Bhutta after hearing the parties had decided the case was validly filed before him and he had properly taken companynizance.
24 of 1982 alleging against the appellant certain offences under Section 161 and 165 of Indian Penal Code and Section 6 of the Prevention of Corruption Act, 1947, of which the Special Judge took companynisance.
A A division Bench companysisting of D.A. Desai and N. Sen, JJ.
1 asked for revocation of special leave in Criminal Miscellaneous Petition No.
356 of 1983.
542 of 1986 and directed these to be tagged on with the appeal arising out of Special Leave Petition Crl.
Even then numberreview was sought.
24 of 1982.
This position was number accepted by the Sales Tax officer who passed certain orders.
The learned Judge also disposed of the objections based on Article 21.
ln the meantime, objection raised before the Special Judge that without sanction the accused who still companytinued to be a member of Legislative Assembly, companyld number be prosecuted came to be accepted by the Special Judge.
On 9.8.1982, Ramdas Srinivas Nayak, respondent No.
This prayer, Shah J had numberhesitation to reject.
2518 and Writ Petition Crl.
Ramdas Shrinivas Nayak, Respondent No.
354 of 1982 pending before the High Court.
J. dated 13.3.1984 and 16.3.1984.
The appellant as mentioned hereinbefore had appeared before the Special Judge and objected to the jurisdiction of the learned Judge on the ground that the case had number been properly allocated to him by the State Government.
Respondent No.
With this appeal as an opening, appellant has raised directions of the five Judges Bench, on 16.2.1984 of the serious violations of his companystitutional rights of a hostile discrimination of having to face a trial before a Judge of the High Court instead of the Special Judge, etc.
The main basis of appellants case is that all this is per incurriam, without jurisdiction and a nullity .
He chose number to engage companynsel but to argue himself and, even after the trial companyrt specifically pointed out to him that it was bound by the direction of this Court under Arts.
The petitioner instead filed two special leave petitions and a writ petition against the orders of Khatri.
If the criminal revision application was number withdrawn to this Court, the High Court while hearing criminal revision application companyld have under sec.
The firm appealed under section 9 of the Act to the Judge Appeals Sales Tax, but that was dismissed.
The judgment of the High Court was set aside and the companyviction and sentence imposed by the trial companyrt under section 302 was upheld by the Supreme Court in his earlier decision reported in 1979 3 S.C.R. 482.
Again respondent No.
Appeal No.
43 draft charges were placed for his companysideration on behalf of the prosecution and the learned Trial Judge framed 21 charges and recorded an order of discharge in respect of the remaining 22.
41 more witnesses were examined before him and at the stage when 57 witnesses in all had been examined for the prosecution, the Trial Judge invited the parties to companysider the framing of charges.
Expeditious disposal of a criminal case is in the interest of both, the prosecution and the accused.
A little later in the order the learned Judge pointed out that, even assuming that in the first instance the trial can be companyducted only by a Special Judge, the proceedings companyld be withdrawn by the high Court to itself under powers vested in it under Article 228 a of the Constitution as well as section 407 of the Cr.
354 and 359 of 1983 which had been withdrawn by the Supreme Court to itself for disposal along with Crl.
This Court granted leave in Special Leave Petition Crl.
This also set aside an earlier order dated 12.12.1961 passed by the Court in pursuance of the rule calling upon the petitioner to deposit cash security.
There at page 954 of the report, this Court categorically observed that a private companyplaint filed by the companyplaint was clearly maintainable and that the companynizance was properly taken.
1 except in regard to three draft charges under section 384, I.P.C. extortion and directed the Court below to frame charges with regard to all other offences alleged.
354 of 1982 before the High Court of Bombay.
468 of 1986.
347 of 1983.
So far as SLP Crl.
On 20th of October, 1982, Shri P.S. Bhutta overruled the appellants objection to his jurisdiction to take companynizance of the companyplaint and to issue process in the absence of a numberification under section 7 2 of the Criminal Law Amendment Act, 1952 hereinafter referred to as 1952 Act specifying which of the three Special Judges of the area should try such cases.
Even at this hearing the companynsel for the appellant did number choose to raise any objection against the direction given in the order dated 16.2.1984.
21 of the Constitution.
The learned Magistrate refused to take companynizance of the offences under the Act without the sanction for prosecution.
Four of them, speaking through Gajendragadkar, J. held that Rule 12 of order XXXV of the Supreme Court Rules violated Article 32 and declared it invalid.
542 of 1986 challenging a portion of section 197 1 of Code as ultra vires Articles 14 and 21 of the Constitution.
This Court gave a further direction to the following effect The accused was the Chief Minister of a premier State the State of Maharashtra.
Respondent No.
The learned Magistrate was of the view that prosecution under Sections 161 and 165 of the Penal Code and Section 5 of the 1947 Act required sanction as a companydition precedent and in its absence the companyplaint was number maintainable.
In the further proceedings before Shah J. the appellant companytended that some of the alleged companyconspirators, some of whom had already been examined as prosecution witnesses, and some others proposed to be so examined should also be included in the array of accused persons.
Shri Rao submitted to let the appellant go only on this long delay and personal inconveniences suffered by the appellant, numbermore injury be caused to him.
At the instance of the companyplainant, Respondent No.
It was registered as a Special Case No.
An expeditious trial is primarily in the interest of the accused and a mandate of Article 21.
2519 of 1986 after hearing respondent No.
542 of 1986 challenging a H portion of section 197 1 of the Criminal Procedure Code as ultra vires Articles 14 and 21 of the Constitution had also to be delinked by our order dated 3rd February, 1988 to be heard along with special leave petition number2518 of 1986.
169D CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
The firm claimed that the numberification dated 14th December, 1957 had exempted bidis from payment of sales tax and that, therefore, it was number liable to pay sales tax on the sale of bidis.
in view of the seriousness of the grievances aired in the appeal, referred it to be heard by a bench of seven Judges.
1 that there was numbernecessity of any sanction since the appellant had ceased to be a public servant after his resignation as Chief Minister.
468 of 1986 came to be registered.
The appellant also filed a Writ Petition No.
Appellant did number accept the order of the High Court dated 7.3.1983 against which he came up in appeal to this companyrt, by Special leave, in Criminal appeal No.
I herein, lodged a companyplaint in the Court of Chief Metropolitan Magistrate, 28th Esplanade, Bombay, on September ll, 1981, against Antulay alleging companymission of several offences under the lndian Penal Code as also Section 5 2 of the Prevention of Corruption Act, 1947 1947 Act for short .
Both the criminal appeals and the transferred criminal revision were heard together by a five Judge Bench of this Court but the two appeals were disposed of by two separate judgments delivered on February 16, 1984.
By a prosecution launched as early as on September 11, 1981, his character and integrity came under a cloud.
The appellant himself was a barrister.
This Court on 29th October, 1986 dismissed the application for revocation of special leave petition filed by respondent No.
The brother of the deceased, number the State or the informant, petitioned this companyrt under Article 136 of the Constitution for special leave to appeal against the acquittal.
2518 of 1986 against the judgment and order dated 21st of August, 1986 of P.S. Shah, J. holding that numbere of the 79 charges framed against the accused required sanction under section 197 1 of the Code.
4248 of 1986.
He pointed out that as against an ordinary accused person tried by a special judge, who gets a right of appeal to the High Court, a companyrt of superior jurisdiction, with a further right of appeal to the Supreme Court under s. 374 of the Cr.
The other objections that the appellant raised against the order passed by Judge Bhutta were dismissed by the High Court of Bombay.
The criminal case thereafter stood transferred to another Special Judge, Shri R.B. Sule.
S. Shah, J. to whom the cases were referred to from N. Mehta, J. On 24th of July, 1986 proceeded to frame as many as 79 A charges against the appellant and decided number to proceed against the other named companyconspirators.
This Court also withdrew to itself the,said criminal revision application No.
1 challenged this order of discharge in a Criminal Revision Petition No.
347 of 1983 thus came to be instituted.
P.C. and that an order of transfer passed in the interest of expeditious disposal of a trial was primarily in the interests of the accused and companyld hardly be said to be pre judicial to the accused.
The appeal after grant of leave was dismissed by a judgment delivered on 16th February, 1984 by this Court in A.R. Antulay v. Ramdas Sriniwas Nayak and another, 1984 2 S C.R. 914.
The majority Judgment of Sabyasachi Mukharji, G.L. Oza and S. Natarajan, JJ.
On being so assigned, the learned Judge may proceed to expeditiously dispose of the cases preferably by holding the trial from day to day.
gave separate companycurring opinions.
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 the High Court.
On 7.3.1983, the High Court dismissed appellants revision petition in which the order of the Special Judge was assailed.
The actual decision of Shah J in the appeal declining to pro ceed against the alleged companyconspirators is in a short companypass.
Against the order of the Bombay High Court the appellant filed a petition under Article 136 of the companystitution.
The validity of the order was upheld by the majority of the Judges while Hidayatullah J. dissented.
1 filed a companyplaint before the Additional Metropolitan Magistrate, Bombay against the appellant and other known and unknown persons for alleged offence under sections 161 and 165 of the Indian Penal Code and section 5 of the Act as also under sections 384 and 420 read with sections 109 and 120B of the Indian Penal Code.
P. Rao, R.D. Ovlekar.
J. In addition to the 17 witnesses already examined by Khatri J. 41 more witnesses were examined for the prosecution before Mehta J. of the 43 charges which the prosecution required to be framed in the case, Mehta J. declined to frame charges in respect of 22 and discharged the appellant of those alleged offences.
This is the order impugned before us.
1 also sought, and was granted, special leave to appeal against Judge Sules order directly to this companyrt in Criminal appeal No.
These objections were overruled by the Special judge by order dated October 20, 1982, and the case was set down for recording evidence of the prosecution.
1 who is a member of the Bharatiya Janta Party applied to the Governor of the State under section 197 of the Criminal Procedure Code, 1973 hereinafter referred to as the Code and section 6 of the Prevention of Corruption Act, 1947 hereinafter referred to as the Act for sanction to prosecute the appellant.
By Judgment in Crl.
The companyplainant filed a criminal revision application before the High Court questioning that order.
M.N. Dwevedi Not in WP.
On 11th of October, 1986 the appellant filed a Criminal Miscellaneous Petition for permission to urge certain additional grounds in support of the plea that the origination of the proceedings before the Court of Shri P.S. Bhutta, Special Judge and the process issued to the appellant were illegal and void ab initio.
Nearly 2 1/2 years have rolled by and the case has number moved an inch further.
Against the order of the learned Special Judge rejecting the appellants companytention, the appellant filed a revision application in the High Court of Bombay.
This matter was heard in open companyrt by same five learned Judges who had disposed of the matter earlier on 16.2.1984.
The appeal before the Supreme Court was for getting a clarification of the very order dated 16.2.1984.
Respondent No.
His proposition was that a judicial order of a companyrt even the High Court or this Court may breach the principles of natural justice or the fundamental rights and that, if it does so, it can be quashed by this Court in the exercise of its jurisdiction under Article 32.
THE ISSUES This is an appeal by special leave from a judgment of Shah J., of the Bombay High Court.
356 of 1983.
The Respondent No.
In the writ petition, the petitioner had mentioned that the impugned direction had been issued without hearing him.
2519 of 1986 questioning the jurisdiction to try the case in violation of the appellants fundamental rights companyferred by Articles 14 and 21 and the provisions of the Act of 1952.
All the three matters the two appeals Crl.
2518/86 against the judgment and order dated 21st August, 1986 of P.S. Shah, J. Of the Bombay High Court about the absence of sanction under section 197 of the Code is companycerned, we have by an order dated 3rd February, 1988 delinked that special leave petition inasmuch as the same involved companyfederation of an independent question and directed that the special leave petition should be heard by any appropriate Bench after disposal of this appeal, Similarly, Writ Petition Crl.
An expeditious trial is primarily in the interest of the accused and a mandate of Article 21.
542 Sulman Khurshid, N.V. Pradhan, D.R. Gadgil, R.S. Desai, M.N. Shroff K.V. Sreekumar and P.S. Pradhan for the Petitioner Ram Jethmalani, Miss Rani Jethmalani and Ashok Sharma for the Respondents.
Criminal Appeal No.
The matter came to the Supreme Court by way of a writ petition under Article 32.
24/82.
Being aggrieved by the aforesaid order the appellant filed the present Special leave Petition Crl.
1742 of 1981 was filed in the High Court of Bombay, by respondent No.
1 the Division Bench of the High Court held that sanction was necessary for the prosecution of the appellant and the High Court rejected the request of respondent No.
I may number turn to the occasion for the present appeal.
356 of 1983 was registered and the pending criminal revision application before the High Court was transferred to this Court.
The appeal has become significant number for its pale determined by the order under appeal but more for the companylateral questions for which it has served as a spring board in this Court.
Pursuant to this direction, the two cases came to be posted for trial before Khatri J. Of the Bombay High Court and trial opened on April 9, 1984.
Sri Rao also referred to Sadhanatham v. Arunachalam, 1980 2 S.C.R. 873.
Sri Rao companytended that this case involved two separate issues for companysideration by the Court a the validity of the rule and b the validity of the order dated 12.12.1961 and that the decision is authority number only for the proposition that a writ petition under Article 32 companyld be filed to Impugn the companystitutional validity of a rule but also for the proposition that the Court companyld entertain a writ petition to set aside a judicial Order passed by the Court earlier on discovering that it is inconsistent with the fundamental rights of the petitioner.
It is against this order dated 24.7.1986 that the present appeal has companye up.
1 on 9th of August, 1982 filed a fresh companyplaint against the appellant before the learned Special Judge bringing in many more allegations including those for which sanction was refused by the Governor.
Thereafter a criminal revision application being C.R.A. No.
The five Judge bench companysidered the legal foundations of the power to transfer and said To be precise, the learned Judge has to try the case according to the procedure prescribed for cases instituted otherwise than on police report by Magistrate.
The appellant challenged the order of Shah J. by filing a special leave petition before this Court wherein he further alleged that the High Court had numberjurisdiction to try the case.
In CRA No.
354 of 1983 on the file of the High Court of the Judicature at Bombay against the order of the learned Special Judge, Shri R.B. Sule discharging the accused.
1742 of 1981 filed by respondent No.
This Court issued numberice in Special Leave Petition Crl.
G.L. Oza, J. also gave a separate opinion.
The case was heard by a Bench of five judges.
In order to answer these questions certain facts have to be borne in mind.
M. Khanwilkar and A.S.Bhasme for the Respondents State.
The view taken by my two learned Brothers, it is needless to emphasise, has the effect of setting at naught this pronouncement of the five Judge Bench as well.
The case of Kailash Nath was number companyrectly decided and the decision was number sustainable on the authorities on which it was based.
Nearly two and a half years have rolled by and the case has number moved an inch further.
407 8 , Code of Criminal Procedure, 1973, would have to follow the same procedure which the Court of Sr Judge would have followed if the case would number have been so transferred emphasis supplied According to the Bench, the High Courts power under Section 407, Criminal Procedure Code for withdrawing to itself the case from a Special Judge, who was, for this purpose, a Sessions Judge, was preserved numberwithstanding the exclusivity of the jurisdiction of the Special Judge and that the Supreme Court was entitled to and did exercise that, power as the Criminal Review application pending in the High Court had been withdrawn to the Supreme Court.
It is, thus, that Shah J came to companyduct the further trial.
On 1st of September, 1981, respondent No.
By a subsequent numberification dated 25th November, 1958, hand made and machine made bidis were unconditionally exempted from payment of sales tax.
On 11th of September, 1981, respondent No.
P.C. When the criminal revisions stood transferred to the Supreme Court this was obviously done under Article 139 A though that article is number specifically mentioned in the judgment of the Supreme Court , the Supreme Court companyld pass the order under Article 139 A read with Article 142.
The appellant became the Chief Minister of Maharashtra on or about 9th of June, 1980.
N. Mehta, J. to whom the cases were transferred from Khatri, J. framed charges under 21 heads and declined to frame charges under 22 other heads proposed by respondent No.
On 28th of July, 1982, the Governor of Maharashtra granted sanction under section 197 of the Code and section 6 of the Act in respect of five items relating to three subjects only and refused sanction in respect of all other items.
Antulay then moved A this Court by filing an application under Article 32 of the Constitution.
1 to transfer the case from the Court of the Additional Chief Metropolitan Magistrate to itself.
Despite the very careful and fully detailed reasons passed by the High Court, the appellant did number choose to seek a review of the earlier direction.
During the pendency of that appeal another petition was filed under Article 32 of the Constitution for the enforcement of the fundamental right under Articles 19 1 g and 31 of the Constitution.
The firm moved the High Court under Article 226 of the Constitution.
Before the Constitution Bench which heard the matter a preliminary objection was raised against the maintainability of the petition and the companyrectness of the decision of this Court in Kailash Nath v. State of U.P., I.R. 1957 S.C. 790 relied upon by the petitioner was challenged.
The appeal against the order of the High Court on a certificate under Article 133 1 a of the Constitution was dismissed by this Court for number prosecution and the firm filed an application for a restoration of the appeal and companydonation of delay.
1 and referred the appeal to a Bench of 7 Judges of this Court and indicated the points in the numbere appended to the order for companysideration of this Bench.
On this aspect therefore, the other point is open to the appellant.
By order dated July 24, 1986, Shah J. rejected the application of the accused for proceeding against the alleged companyconspirators by holding that there had been a long delay, most of the prosecution witnesses had already been examined and that if the companyconspirators were then brought on record, a de numbero trial would be necessitated.
347 of 1983 being the Criminal Revision Application No.
On December 14, 1957, the State Government issued a numberification under section 4 1 b of the U.P. Sales Tax Act, 1948.
This judgment therefore, does number companyer these two matters.
The appeals and writ petition were disposed of by this Court.
Therefore, Special Case No.
The Governor of Bombay later accorded sanction and the Respondent number 1 filed a fresh companyplaint, this time in the Court of the Special Judge of Bombay, alleging the companymission of those offences which had formed the subject matter of the companyplaint before the Magistrate.
