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2001 Supreme(SC) 1357
2001(5) Supreme 533
SUPREME COURT OF INDIA
(From Bombay High Court)
K.T. Thomas and S.N. Variava, JJ.
Dhyan Investments & Trading Co. Ltd. -Appellant
versus
Central Bureau of Investigation & Ors. -Respondents
Criminal Appeal Nos. 757-758 of 2001
(@ SLP (Crl.) No. 2301-2302 of 2001)
Decided on 31-7-2001
Counsel for Parties :
For the Appearing Parties : P. Chidambaram, P.M. Amim, P.P. Malhotra, Sr. Advocates, Virag Tuljapurkar, Sandeep Jumarkar, Ravi Gandhi, P. Venugopal, P.S. Sudheer, Ms. Surekha Raman, Raja Thakare, A. Mariarputham, P. Parmeswaran, S.V. Deshpande, Advocates.
VERY IMPORTANT POINT
Special Court under Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 is not subordinate to the High Court and that the High Court would have no power u/s 407 Cr.P.C. 1973 to transfer a case from one Judge of the Special Court to another.
Headnote:Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992-Sections 3, 4, 5, 6, 7, 9 10, 5A and 11A-Constitution of India-Articles 226, 227, 32, 136 and 235-Cr.P.C. 1973-Section 407-Power of High Court to transfer cases from one Subordinate Court to another-Whether High Court can transfer a case from one Judge of the Special Court to another? (No)-Position under Constitution-Explained-Case law referred.
Held : In this Appeal we have not permitted parties to argue on merits. We have confined parties to the question whether the High Court would have power to transfer the case from one Judge of the Special Court to another. Mr. Chidambaram submits that the High Court has such a power under Section 407 of the Criminal Procedure Code. (Paras 14 & 15)
In our view the submissions of Mr. Chidamabaram, that the Special Court is a Court subordinate to the High Court, cannot be accepted. (Para 38)
That the Special Court is not subordinate to the High Court is also very clear from the case of T. Sudhakar Prasad, 2001(1) SCC 516 referred to by Mr. Chidambaram. (Para 40)
From this judgment it is clear that only judicial Superintendence is envisaged under Articles 226 and 227. There is no administrative control or superintendence. The High Court does not have administrative control over the Special Court under Article 235 of the Constitution of India. Also to be noted that the Special Court is manned by a sitting Judge of the High Court. On occasions the same Judge also takes up matters of the High Court. Also Section 5 provides that if the Judge manning the special Court is absent or on leave the duties could be performed by another Judge of the High Court nominated by the Chief Justice of the High Court in consultation with the Chief Justice of India. It would therefore not be in the fitness of things that for purposes of Section 407 Criminal Procedure Code, a sitting Judge of the High Court, performing simultaneous duties be deemed subordinate to the High Court merely because he is trying cases of the Special Court. In this view of the matter we hold that the Special Court is not subordinate to the High Court and that the High Court would have no power under Section 407 of the Criminal Procedure Code to transfer a case from one Judge of the Special Court to another. There is a further and greater difficulty in the Appellants way. In the present case there is only one Special Court. There may be two Judges presiding over the Special Court but that there still is only one Special Court. As already stated above that Special Court is not subordinate to the High Court. What the Appellants are desirous of is transfer from one Judge of the Special Court to another Judge of the Special Court. On a question from Court, as to whether there is any provision in law which empowered any Court to transfer a case from one Judge of the Supreme Court to another Judge of the Supreme Court or from one Judge of the High Court to another Judge of the High Court Mr. Chidambaram fairly conceded that there was no such power and that the only approach would be either to make an application before the concerned Judge to recuse himself or to administratively apply either to the Chief Justice of Indian (in the case of Supreme Court) or to the Chief Justice of the concerned High Court. He added that there have been cases where this Court whilst disposing of an SLP or an Appeal has, whilst remanding the matter, directed that the same be placed before some other Judge. He however fairly conceded that such directions were not pursuant to any power to transfer. In our view this is an identical situation. It is for that reason that Section 10, which had been incorporated in the 1979 Act was advisedly not incorporated in the Special Courts Act. In this Appeal we are not concerned with the question whether the High Court would have judicial superintendence under Article 226 and/or 227 and/or whether in exercise of such jurisdiction, even if there is one, whether a High Court would or could transfer a case from one Judge to another. We therefore express no opinion thereon. In this view of the matter, we hold that Section 407 Cr.P.C. does not apply. We see no reason to interfere with the impugned Orders. The Appeals stands disposed of accordingly. There shall be no Order as to costs. (Paras 41, 42, 43, 44, 45, 46 and 47)
JUDGMENT
S.N. Variava, J.-Leave granted.
2. Heard parties.
3. These Appeals are against Orders dated 16th April, 2001 and 19th April, 2001 passed by the Bombay High Court.
4. Briefly stated the facts leading to these Appeals are as follows:
Due to large scale diversions of public funds, belonging to banks and financial institutions, to the individual accounts of certain brokers, the Government first promulgated an Ordinance. Subsequently the Special Court (Trial of Offences Relating to Transactions in Securities ) Act, 1992 was passed. (This Act will hereinafter be referred to as the Special Courts Act.) Under this Special Courts Act one Special Court came to be established. In the beginning there was only one Judge. All civil and criminal matters, even if they arose from the same transaction were before the same Judge. The same Judge had, in fact, tried both civil and criminal matters even though they arose out of the same transaction or same set of facts. It is only because the work load was found to be very heavy that the Special Courts Act was amended in 1997, to enable appointment of more Judges. It is only thereafter that there have been two Judges.
5. In May 1995 Canbank Financial Services Limited (Canfina) filed a Civil Petition No. 74 of 1995 before the Special Court, claiming criminal conspiracy to cause unlawful loss to them by sale and purchase of the same securities within a period of two days at differing rates. Canfina claimed damages arising out of the tort of conspiracy in a sum of Rs. 38,01,13,561/-.
6. In March 1998 CBI filed Criminal Case No.2 of 1998 before the Special Court alleging criminal conspiracy amongst the Respondents to cause unlawful loss to Canfina by sale and purchase of the same securities within a period of two days at differing rates.
7. One of the two Judges of the Special Court i.e. Justice Kapadia disposed of, after a lengthy trial, Petition No. 74 of 1995 by a judgment dated 17th January, 2001. It would appear that Special Case No. 2 of 1998 was earlier before the other Judge presiding over the Special Court, Justice Trivedi. Sometimes in September 2000, Special Case No. 2 of 1998 was administratively transferred by the Chief Justice of the Bombay High Court from Justice Trivedi to Justice Kapadia.
8. The Appellants then filed Criminal Application No. 809 of 2001 before the Bombay High Court praying for an order transferring the case from Justice Kapadia to any other Special Court. As there were only two presiding Judges in the Special Court, in effect the Appellants wanted the case to be transferred to Justice Trivedi.
9. On 5th March, 2001 parties made a mention in the Chamber of Justice Kapadia that they had filed Criminal Application No. 809 of 2001. We are told that the learned Judge was orally requested to withdrew from the case. The Learned Judge rejected the oral request. The Judge, however, adjourned the Special Case No. 2 of 1998 to 8th March, 2001. Thereafter on 8th March, 2001, the Judge adjourned Special Case No. 2 of 1998 to 19th April 2001, indicating that unless a stay was obtained, Special Case No. 2 of 1998 would be proceeded with.
10. On 3rd of April, 2001, a learned Single Judge of the Bombay High Court directed that the Criminal Application No. 809 of 2001 be placed before a Division Bench of the Court as an important question arose. The Chief Justice, therefore, assigned it to a Division Bench. Criminal Application No. 809 of 2001 was heard by a Division Bench on 16th April, 2001. By the Order dated 16th April, 2001, (i.e. one of the impugned orders), the Division Bench directed that a written application for transfer be moved before the Special Court, i.e. before the Hon ble Judge, Mr. Kapadia himself. With these directions the Criminal Application No. 809 of 2001 was disposed of.
11. Appellants then filed, in the Special Court, Miscellaneous Application No. 168 of 2001 praying that Justice Kapadia may recuse himself from the matter. By an order dated 19t
