1988 Supreme(SC) 337

SUPREME COURT OF INDIA
SABYASACHI MUKHARJI, RANGANATH MISRA, G.L. OZA, B.C. RAY, S. NATARAJAN, M.N. VENKATACHALIAH AND S. RANGANATHAN, JJ.**
A.R. Antulay, Appellant
Versus
R.S. Nayak and another, Respondents.
Criminal Appeal No. 468 of 1986,
D/- 29-4-1988.
Advocates appeared
Mr. P. P. Rao, Mr. R. D. Ovlekar, Mr. M. N. Dwevedi (not in W.P.No. 542) Sr. Advocates, Mr. Suleman Khurshid, Mr. N. V. Pradhan, Mr. D. R. Gadgil, Mr. R. S. Desi, Mr. M. N. Shroff, Mr. K. V. Sreekumar andMr. P. S. Pradhan, Advocates with them for Appellant; Mr. Ram Jethmalani, Sr. Advocate, Miss. Rani Jethmalani and Mr. Ashok Sharma, Advocates with him, for Respondents; Mr. A. M. Khanwilkar and Mr. A. S. Bhasme, Advocates, for the State

IMPORTANT POINT
Supreme Court is not power less to correct its error in exercise of its inherent jurisdiction in any subsequent proceeding pending before it without insisting on the formalities of a review application when the error has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty

Headnote:(I) BACKDROP OF THE CASE

       On 9-8-1982 a criminal case was filed against the appellant (Chief Minister of Maharashtra between 9-6-1980 and 12-1-1982) alleging several offences under sections 161 and 165 Indian Penal Code and section 5 of Prevention of Corruption Act of which the Special Judge took cognizance. Appellant question the jurisdiction of Special Judge taking cognisance of these offences on a private complaint. Objection was overruled, the revision petition filed against the order was dismissed. Appellant filed Special Leave Petition. During the pendency of this petition the Special Judge discharged the appellant in the absence of a valid sanction of the Maharashtra Legislature Assembly, of which the appellant continued to be a member. Respondent was granted Special Leave to Appeal. Five Judges Bench of Supreme Court heard these appeals and revision together, set aside the view of the Special Judge by holding that a member of Legislative Assembly is not a public servant and further directing the transfer of trial from the Special Judge to a Judge of the Bombay High Court considering the need for expeditious trial. It is this direction of the Supreme Court dated 16-2-1984 which is challenged in this criminal appeal tiled in 1986. Cognisance was held to be validly taken 57 witnesses have already been examined by the Judge of the High Court, charges have been framed. Matter has been referred to a bench of 7 Judges.

       

       (II) POINTS IN ISSUE

       A. TRANSFER OF CRIMINAL CASES

       Criminal Law Amendment Act, 1952 - Sections 6 and 7 - Criminal Procedure Code, 1973 - Section 406 and 407- Prevention of Corruption Act, 1947- Sections 5 and 6 - Indian Penal Code, 1860 – Sections 161 and 165-Exclusiveness of the jurisdiction of Special Court to try the offence enumerated in section 6 of the 1952 Act - Complaint against the appellant for offence under sections 161 and 165 of the Code and section 5 of the Act-Supreme Court directing transfer to the High Court of Bombay the case pending before the Special Judge – Challenged - Whether this Court is empowered to transfer the case, triable under the 1952 Act only by a Special Judge appointed under section 6 of the Act, to the High Court for trial by it? (No, by a majority judgment).

       Held:

       As per Sabyasachi Mukherji. J. (Majority view), section 7(1) of the 1952 Act creates a condition which is sine qua non for the trial of offenders under section 6(1) of the Act. In this connection, the offences specified under section 6(1) of the 1952 Act are those punishable under sections 161, 162, 163, 164 and 165-A of the Indian Penal Code and section 5 of the 1947 Act. Therefore, the order of this Court transferring the cases to the High Court on 16th February, 1984, was not authorised by law. This Court, by its directions could (not confer jurisdiction on the High Court of Bombay to try any case which it did not possess such jurisdiction under the scheme of the 1952 Act. (Para 14)

       It appears to us that the order was quite clearly per incuriam. This Court was not called upon and did, not decide the express limitation on the power conferred by section 407 of the Code, which includes offence by public servants mentioned in the 1952 Act to be over-ridden in the manner sought to be followed as the consequential direction of this Court. This Court, to be plain, did not have jurisdiction to transfer the case to itself. That will be evident from an analysis of the different provisions of the Code as well as the 1952 Act. (Para 15)

       As per Ranganath Misra, J. (Concurring). The power to transfer a case conferred by the Constitution of by section 406 of the Code of Criminal Procedure does not specifically relate to the Special Court. Section 406 of the Code could perhaps be applied on the principle that the Special Judge was a subordinate court for transferring a case from one Special Judge to another Special Judge. That would be so because such a transfer would not contravene the mandate of section 7(1) of the Amending Act of 1952. While that may be so, the provisions for transfer, alreday referred to, do not authorise transfer of a case pending in the Court of Special Judge first to the Supreme Court and then to the High Court for trial. (Para 5)

       As per Venkatachaliah, J - (Dissenting). The exclusiveness of jurisdiction of the special judge under section 7(1) of 1952 Act, in turn, depends on the construction to be placed on the relevant statutory-provision. If on such a construction, however erroneous it may be, the court holds that the operation of section 407, Cr. P.C. is not excluded, that interpretation will denude the plenitude of the exclusivity claimed for the forum. To say that the Court usurped legislative powers and created a new jurisdiction and a new forum ignores the basic concept of functioning of Courts. The power to interpret laws is the domain and function of Courts. (Para 13)

       As per Ranganathan, J.-(Dissenting). The object of the Act, is only to segarate certain cases to special courts which will concentrate on such cases so to expedite their disposal and not to oust the superior jurisdiction of the High Court or its powers superintendence over subordinate courts under Article 227 of the Constitution, an aspect only of which is reflected in section 407 of the Cr. P.C. However, were the matter to be considered as res integra I would be inclined to accept the contention urged on behalf of the appellant, for the following reasons. In the first place, the argument of the counsel for the respondent runs counter to the observations made by the Supreme Court in the earlier part of the extract set out above that the first sub-section of section 7 and the second sub-section are totally different in character. The first sub-section deals with a sine qua non for the trial of certain offences, whereas the second sub-section is only of a procedural nature earmarking territorial jurisdiction among persons competent to try the offence. They are, therefore, vitally different in nature. The Supreme Court has clearly held in the passage extracted above that the case can be transferred only from one special judge to another. In other words, while the requirement of territorial jurisdiction is subordinate to sections 406 or 407, the requirement that the trial should be by a special judge is not. It is not true that those observations are not binding on this larger Bench and moreover the Supreme Court there was dealing only with an objection based on sub-section (2) of section 7. There is a vital qualitative difference between the two subsections and that" while a case can be transferred to a Special Judge who may not have the ordinary territorial jurisdiction over it, a transfer cannot be made to an ordinary Magistrate or a Court of Sessions even if it has territorial jurisdiction. The case can be transferred only from one Special Judge to another Special Judge; it cannot be transferred even to a High Court Judge except where a High Court Judge is appointed as a Special Judge. A power of transfer postulates that the court of which transfer or withdrawal is sought is competent to exercise jurisdiction over the case. (Para 10)

       This view also derives support from two provisions of section 407 itself. The first is this. Even when a case is transferred from one criminal court to another, the restriction as to territorial jurisdiction may be infringed. To obviate a contention based on lack of territorial jurisdiction in the transferee court in such a case, clause (ii) of section 407 provides that the order of transfer will prevail, lack of jurisdiction under sections 177 to 185 of the Code notwithstanding. The second difficulty arises, even under the Cr. P.C. itself, by virtue of section 197, which not only places restriction on the institution of certain persecution against public servants without Government sanction but also empowers the Government, inter alia, to determine the court before which such trial is to be conducted. When the forum of a such a trial is transferred under section 407 an objection may be taken to the continuance of the trial by the transferee court based on the order passed under section 197. This eventuality is provided against by section 407(9) of the Act, which provides that nothing in section 407 shall be deemed to affect an order passed under section 407. Although specifically providing for these contingencies, the section is silent in so far as a transfer from the Court of a Special Judge under the 1952 Act is concerned though it is a much later enactment. (Para 11)

       On the contrary, the language of section 7(1) of the 1952 Act places a definite hurdle in the way of construing section 407 of the Cr. P.C. as overriding its provisions. In view of this non-obstanii clause also, it becomes difficult to hold that the provisions of section 407 of the 1973 Cr. P.C. will override, or even operate consistently with, the provisions of the 1952 Act. For the same reason it is not possible to hold that the power of transfer contained in clause 29 of the Letters Patent of the Bombay High Court can be exercised in a manner not contemplated by section 7(1) of the 1952 Act. (Para 12)

       Thirdly, whatever may be the position where a case is transferred from one Special Judge to another or from one ordinary sub ordinate criminal court to another of equal or superior jurisdiction, the withdrawal of a case by the High Court from such a Court to itself for trial places certain handicaps on the accused. It is true that the court to which the case has been transferred is a superior court and in fact, the High Court. Unfortunately, however, the High Court Judge is not a person to whom the trial of the case can be assigned under section 7(1) of the 1952 Act. The circumstance that a much superior forum is assigned to try a case than the one normally available cannot by itself be treated as a "sufficient safeguard and a good substitute" for the normal forum and the rights available under the normal procedure.

       The accused here loses his right of coming up in revision or appeal to the High Court from the interlocutory and final orders of the trial Court. He loses the right of having two courts -a subordinate court and the High Court

       adjudicate upon his contention before bringing the matter up in the Supreme Court. Though, as is pointed out later, these are not such handicaps as violate the fundamental rights of such an accused, they are circumstances which create prejudice to the accused and may not be overlooked in adopting one construction of the statute in preference to the other. (Para 13)

       The powers of the Supreme Court to transfer cases from one court to another are to be found in Article 139-A of the Constitution and section 406 of the Cr. P.C. The provisions envisage either inter-state transfers of cases i.e. from a court in one State to a court in another State or the withdrawal of a case by the Supreme Court to itself. Intra-State transfer among courts subordinate to a High Court inter-se or from a court subordinate to a High Court to the High Court is with in jurisdiction of the appropriate High Court. The attempt of counsel for the respondent is to justify the transfer by attributing the powers of the High Court under section 407 to the Supreme Court in its capacity as an appellate or revisional court. This argument overlooks that the powers of the Supreme Court, in disposing of an appeal or revision, are circumscribed by the scope of the proceedings before it. In this case, it is common ground that the question of transfer was not put in issue before the Supreme Court. (Para 16)

       If the provisions of the 1952 Act read with article 139-A and sections 406-407 of the Cr. P.C. do not permit the transfer of the case from a Special Judge to the High Court, that effect cannot be achieved indirectly. It is, therefore, difficulty to say, in the circumstances of the case, that the Supreme Court can issue the impugned direction in exercise of the powers under article 142 or under section 407 available to it as an appellate court. (Para 17)

       B. FUNDAMENTAL RIGHTS

       Constitution of India-Articles 14 and 21-Criminal Law Amendment Act, 1952-Sections 6 and 7-Right of appellant to be tried by a Special Court under section 7 - Supreme Court directing transfer of the case pending before the Special Judge to the High Court for speedier trial-This direction issued per incuriam is volatile of Articles 14 and 21 of the Constitution (relying upon Anwar Ali Sarkars Case (1952 SCR 284)

       Held:

       As per Sabyasachi Mukharji, J. (Majority). The question which must be examined is, can fair minded, reasonable, unbiased and resolute men regard that with eguanimity and call it reasonable, just and fair, regard it as equal treatment and protection in the defence of liberties which is expected of a Sovereign Democratic Republic in the conditions which are obtained in India today. Judged by that view the singling out of the appellant in appellant in this case for a speedier trial by the High Court for an offence of which the High Court had no jurisdiction to try under the Act of 1952 was, in our opinion, unwarranted, unprecedented and the direction given by this Court for the said purpose, were not warranted. (Para 17)

       No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity. Four valuable rights, it appears to us, of the appellant have taken away by the impugned directions.

       (i) The right to be tried by a Special Judge in accordance with the procedure established by law and enacted by Parliament.

       (ii) The right of revision to the High Court under section 9 of the Criminal Law Amendment Act.

       (iii) The right of first appeal to the High Court under the same section.

       (iv) The right to move the Supreme Court under Article 136 thereafter by way of a second appeal necessary. (Para 25)

       The trial even of person holding public office though to be made speedily must be done in accordance with the procedure established by law. The provisions of section 6 read with section 7 of the Act of 1952 in the facts and circumstances of this case is the procedure established by law; any deviation even by a judicial direction will be negation of the rule of law. (Para 38)

       With the avowed object of speedier trial the case of the appellant had been transferred to the High Court but on grounds of expediency of trial he cannot be subjected to a procedure unwarranted by law, and contrary to the constitutional provisions. The appellant may or may not be an ideal politician. It is a fact, however, that the allegations have been brought against him by a person belonging to a political party opposed to his but that is not the decisive factor. If the appellant-Shri Abdul Rehman Antulay has infringed law, he must be dealt with it accordance with the law. We proclaim and pronounce that no man is above the law, but at the same time reiterate and declare that no man can be denied his rights under the Constitution and the laws. He has a right to be dealt with in accordance with the law and not in derogation of it. (Para 45)

       As per Ranganath Misra, J,- I must, however, indicate here that the argument based upon the extended meaning given to the contents of Article 21 of the Constitution, though attractive have not appealed to me. (Para 7)

       As per Venkatachaliah, J - (Dissenting) The fundamental right under Article 14, by all reckoning, has a very high place in constitutional scale of values. Before a person is deprived of his personal liberty, not only that the procedure established by law must strictly be complied with and not departed from to the disadvantage or detriment of the person but also that the procedure for such deprivation of personal liberty must be reasonable, fair and just. Article 21 imposes limitations upon the procedure and requires it to conform to such standards of reasonableness, fairness and justness as the Court acting as sentinel of fundamental rights would in the context, consider necessary and requisite. The court will be the arbiter of the question whether the procedure is reasonable, fair and just. If the operation of section 407, Cr. P.C. is not impliedly excluded and therefore, enables the withdrawal of a case by the High Court to itself for trial as, indeed, has been held by the earlier bench, the argument based on Article 14 would really amount to a challenge to the very vires of section 407. All accused persons cannot claim to be tried by the same Judge. The discriminations inherent in the choice of one of the concurrent jurisdictions-are not brought about by an inanimate statutory-rule or by executive fiat. The withdrawal of a case under section 407 is made by a conscious judicial act and is the result of judical act is the result of judicial discernment. If the law permits the withdrawal of the trial to the High Court from a Special Judge, such a law enabling withdrawal would not, prima facie, be bad as violation of Article

       14. The five-Judge Bench in the earlier case has held that such a transfer is permissible under law. The appeal to the principle in Anwar Ali Sircars case (supra) in such a context would be somewhat out of place. (Para 19)

       If appellant says that he is singled out for a hostile treatment on the ground alone that he is exposed to a trial before a Judge of the High Court then the submission has a touch of irony. Indeed that a trial by a Judge of the High Court makes for added re-assurance of justice, has been recognised in a number of judicial pronouncement. (Para 20)

       As per Ranganathan, J- (Dessenting). In my opinion, the arguments based on Articles 14 and 21 cannot be accepted, in case it is to be held for any reason that the transfer of the appellants case to the High Court was valid and within the competence of this Court. I say this for the following reason: If the argument is to be accepted, it will be appreciated, it cannot be confined to cases of transfer to the High Court of cases under the 1952 Act, but would also be equally valid to impugn the withdrawal of a criminal case tried in the normal course under the Cr. P.C. from a subordinate court trying it to the High Court by invoking the powers under section 407. To put it in other words, the argument, in substance, assails the validity of section 407 of the 1973 Cr. P.C. In my opinion, this attack has to be repelled. The section cannot be challenged under Article 14 as it is based on a reasonable classification having relation to the objects sought to be achieved. Though, in general, the trial of cases will be by courts having the normal jurisdiction over them, the exigencies of the situation may require that they be dealt with by some other court for various reasons. Likewise, the nature of a case, the nature of issues involved and other circumstances may render it more expedient, effective, expeditious or desirable that the case should be tried by a superior court or the High Court itself. The power of transfer and withdrawal contained in section 407 of the Cr. P.C. is one dictated by the requirements of justice and is, indeed," but an aspect of the supervisory powers of a superior court over courts subordinate to it: (see also sections 408 to 411 of the Cr. P.C.). A Judicial discretion to transfer or withdraw is vested in the highest court of the State and made exercisable only in the circumstances set out in the section. Such a power is not necessary and desirable but indispensable in the cause of the administration of justice. The accused will continue to be tried by a court of equal or superior jurisdiction. Section 407(8) read with section 474 of the Cr. P.C. and section 8(3) of the 1952 Act makes it clear that he will be tried in accordance with the procedure followed by the original Court or ordinarily by a Court of Sessions. The accused will, therefore, suffer no prejudice by reason of the application of section 407. Even if there is a differential treatment which causes prejudice, it is based on logical and acceptable considerations with a view to promote the interests of justice. The transfer or withdrawal of a case to another court or the High Court, in such circumstances, can hardly be said to result in hostile discrimination against the accused in such a case. (Para 20)

       The argument of infringment of Article 21 is based essentially on the premise that the accused will be deprived, in cases where the trial is withdrawn to the High Court of a right of first appeal. This fear is entirely unfounded. I think Sri Jethmalani is right in contending that where a case is thus withdrawn and tried by the Court, the High Court will be conducting the trial in the exercise of its extraordinary original criminal jurisdiction. As pointed out by Sabyasachi Mukharji, J., the old Presidency town High Courts once exercised original jurisdiction in criminal matters but this has since been abolished. Once possible view is that now all original criminal jurisdiction exercised by High Courts is only extraordinary original criminal jurisdiction. Another possible view is that still High Courts do exercise ordinary original criminal jurisdiction in habeas corpus and contempt of court matters and also under some specific enactment (e.g. Companies Act sections 454 and 633). They can be properly described as exercising extraordinary original criminal jurisdiction, where though the ordinary original criminal jurisdiction is vested in a subordinate criminal court or Special Judge, a case is withdran by the High Court to itself for trial. In the ordinary run of criminal cases tried by a Court of Sessions, the accused will be tried in the first instance by a court subordinate to" the High Court; he will then have a right of first appeal to the High Court and then can seek leave of the Supreme Court to appeal to it under Article 136. In the case of a withdrawn case, the accused has the privilege of being tried in the first instance by the High Court itself with a right to approach the apex Court by way of appeal. The apprehension that the judgment in the trial by the High Court, in the latter case, will be final, with only a chance of obtaining special leave under Article 136 is totally unfounded. There is also some force in the submission of Sri Jethmalani that, if that really be the position and the appellant had no right of appeal against the High Courts judgment, the Supreme Court will consider and petition presented under Article 136 in the light of the inbuilt requirements of Article 21 and dispose of it as if it were itself a petition of appeal from the judgment. (Para 24)

       C. FINALITY OF JUDICIAL PROCEEDINGS

       Constitution of India-Article 137Criminal Law Amendment Act, 1952 Sections 6 and 7-Direction of this Court being contrary to the special provisions of the 1952 Act-Whether these directions can be challenged subsequently?-(Yes, Majority view)-Procedure-It can do so in exercise of its inherent powers-Writ petition not maintainable.

       Held:

       As per Sabyasachi Mukharji, J. (Majority). In rectifying the error, no procedural inhibitions should debar this Court because no persons should suffer by reason of any mistake of the Court. The Court, as is manifest, gave its directions on 16th February, 1984. Here no rule of res judicata would apply to prevent this Court from entertaining the grievance and giving appropriate directions. (Para 17)

       The appellant should not suffer on account of the direction of this Court based upon an error leading to conferment of jurisdiction. In our opinion, we are not debarred from reopening this question and giving proper directions and correcting the error in the present appeal, when the said directions on 16th February, 1984, were volatile of the limits of jurisdiction and the directions have resulted in deprivation of the fundamental rights of the appellant, guaranteed by Articles 14 and 21 of the Constitution. The appellant has been treated differently from other offenders, accused of a similar offence in view of the provisions of the Act of 1952 and the High Court was not a Court competent to try the offence. It was directed to try the appellant under the directions of this Court, which was in derogation of Article 21 of the Constitution. The directions have been issued without observing the principle of audi alteram partem. (Paras 20 and 21)

       This Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty. It can do so in exercise of its inherent jurisdiction in any proceeding pending before it without insisting on the formalities of a review application. Powers of review can be exercised in a petition filed under Article 136 or Article 32 or under any other provision of the Constitution if the Court is satisfied that its directions have resulted in the deprivation of the fundamental rights of a citizen of any legal right of the petitioner. (relying upon Prem Chand Gargs case: 1963 Suppl. 1 SCR 885). (Para 22)

       The power of the Court to correct an error subsequently has been reiterated by a decision of a bench of nine Judges of this Court in Naresh Shridhar Mirajkar and others v. State of Maharashtra and another, 1966(3) SCR 744. (Para 24)

       We are correcting an irregularity committed by Court not on construction or misconstruction of a statute but on non-perception of certain provisions and certain authorities, which would amount to derogation of the constitutional rights of the citizen. (Para 40)

       Directions given per incuriam and in violation of certain constitutional limitations and in derogation of the principles of natural justice can always be remedied by the court ex debito justitiae. (Para 39)

       It is just and proper for the Court to rectify and recall that injustice, in the peculiar facts and circumstances of this case. (Para 44)

       It is unfortunate, unfortunate for the people of the State, unfortunate for the country as a whole, unfortunate for the future working of democracy in this country which, though is not a plant of an easy growth yet is with deep root in the Indian polity that delay has occurred due to procedural wrangles. Values in public life and perspective of these values in public life, have undergone serious changes and erosion during the last few decades. What was unheard of before is common place today. A new value orientation is being undergone in our life and in our culture. We are at the threshold of the cross-roads of values. It is, for the sovereign people of the country to settle these conflicts yet the Courts have vital roles to play in such matters. With the avowed object of speedier trial the case of the appellant had been transferred to the High Court but on grounds of expediency of trial he cannot be subjected to a procedure unwarranted by law, and contrary to the constitutional provisions. The appellant mayor may not be an ideal politician. It is a fact, however, that the allegations have been brought against him by a person belonging to a political party opposed to his but that is not the decisive factor. If the appellant – Shri Abdul Rehman Antulay has infringed law, he must be dealt with in accordance with the law. We proclaim and pronounce that no man is above the law, but at the same time reiterate and declare that no man can be denied his rights under the Constitution and the laws. He has a right to be dealt with in accordance with the law and not in derogation of it. This Court, in its anxiety to facilitate the parties to have a speedy trial gave directions on 16th February 1984 as mentioned hereinbefore without conscious awareness of the exclusive jurisdiction of the Special Courts under the 1952 Act and that being the only procedure established by law, there can be no deviation from the terms of Article 21 of the Constitution of India. That is the only procedure under which it should have been guided. By reason of giving the directions on 16th February, 1984 this Court had also unintentionally caused the appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special procedure not provided for by law. When these factors are brought to the notice of this Court, even if there are any technicalities this Court should not feel shackled and decline to rectify that injustice or otherwise the injustice noticed will remain forever a blot on justice. It has been said long time ago that "Actus Curiae Neminem Gravabir"-an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense and affords a safe and certain guide for the, administration of the law. (Para 45)

       The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the hand-maids of justice and not the mistress of the justice. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. This is a peculiar fact of this case, which requires emphasis. (Para 46)

       As per Ranganath Misra, J - (Concurring). It is the settled position in law that jurisdiction of courts comes solely from the law of the land and cannot be exercised otherwise. So far as the position in this country is concerned conferment of jurisdiction is possible either by the provisions of the Constitution or by specific laws enacted by the Legislature. For instance, Article 129 confers all the powers of a court of record on the Supreme Court including the power to punish for contempt of itself. Articles 131, 132, 133, 134, 135, 137, 138 and 139 confer different jurisdictions on the Supreme Court while Articles 225, 226, 227, 228 and 230 deal with conferment of jurisdiction on the High Courts. Instances of conferment of jurisdiction by specific law are very common. The laws of procedure both criminal and civil confer jurisdiction on different courts. Special jurisdiction is conferred by special statute. It is thus clear that jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the Legislature. Jurisdiction is thus the authority or power of the court to deal with a matter and make an order carrying binding force in the facts. (Para 3)

       There is no doubt that after the Division Bench of Desai and Sen, JJ. dismissed the writ petition and the special leave petitions on 17th April, 1984, by indicating that the petitioner could file an appropriate review petition or any other application which he may be entitled in law to file, no further action was taken until charges were framed on the basis of evidence of 57 witnesses and a mass of documents. After a gap of more than three years, want of jurisdiction of the High Court was sought to be reagigated before the two-Judge Bench in the present proceedings. During this intervening period of three years or so a lot of evidence was collected by examining the prosecution witnesses and exhibiting documents. A learned Judge of the High Court devoted his full time to the case. Antulay has raised objection at this stage before the matter has been concluded. In case after a full dressed trial, he is convicted, there can be no doubt that the wise men in law will raise on his behalf, inter alia, the same contention as has been advanced now by way of challenge to the conviction. If the accused is really guilty of the offences as alleged by the prosecution there can be no two opinions that he should be suitably punished and the social mechanism of punishing the guilty must come heavily upon him. No known loopholes should be permitted to creep in and subsist so as to give a handle to the accused to get out of the net by pleading legal infirmity when on facts the offences are made out. The importance of this consideration should not be overlooked in assessing the situation as to whether the direction of this Court as contained in the five-Judge Bench decision should be permitted to be questioned at this stage or not. (Para 6)

       One of the well-known principles of law is that decision made by a competent court should be taken as final subject to further proceedings contemplated by the law of procedure. In the absence of any further proceeding, the direction of the Constitution Bench of 16th of February, 1984 became final and it is the obligation of everyone to implement the direction of the apex Court. Such an order of this Court should by all canons of judicial discipline be binding on this Court as well and cannot be interfered with after attaining finality. Brother Mukharji has referred to several authorities in support of his conclusion that an order made without jurisdiction is not a valid one and can be ignored, overlooked or brushed aside depending upon the situation. (Para 8)

       There can be no doubt that certiorari shall not lie to quash a judicial order of this Court. That is so on account of the fact that the Benches of this Court are not subordinate to larger Benches thereof and certiorari is, therefore, not admissible for quashing of the orders made on the judicial side of the court. (In Mirajkars case). (Para 11)

       Once judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the court, it is not only appropriate but also the duty of the Court to rectify the mistake by exercising inherent powers. Judicial opinion heavily leans in favour of this view that a mistake of the Court can be corrected by the Court itself without any fetters. (Para 13)

       To err is human, is the off-quoted saying. Courts including the apex one are no exception. To own up the mistake when judicial satisfaction is reached does not militate against its status or authority. Perhaps it would enhance both. It is time to sound a note of caution. This Court under its Rules of Business ordinarily sits in divisions and not as a whole one. Each Bench, whether small or large, exercises the powers vested in the Court and decisions tendered by the Benches irrespective of their size are considered as decisions of the Court. The practice has developed that a larger Bench is entitled to overrule the decision of a smaller Bench notwithstanding the fact that each of the decisions is that of the Court. That principle, however, would not apply in the present situation and since we are sitting as a Bench of Seven we are not entitled to reverse the decision of the Constitution Bench. Overruling when made by a larger Bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without affecting the binding effect of the decision in the particular case. Antulay, therefore, is not entitled to take advantage of the matter being before a larger Bench. In fact, if it is a case of exercise of inherent powers to rectify a mistake it was open even to a five Judge Bench to do that and it did not require a Bench larger than the Constitution Bench for that purpose. (Paras 14 and 15)

       There is still another aspect, which should be taken note of. Finality of the orders is the rule. By our directing recall of an order the well-settled propositions of law would not be set at naught. Such a situation may not recur in the ordinary course of judicial functioning and if there be one certainly the Bench before which it comes would appropriately deal with it. No strait jacket formula can be laid down for judicial functioning particularly for the apex Court. The apprehension that the present decision may be used as a precedent to challenge judicial orders of this Court is perhaps misplaced because those who are familiar with the judicial functioning are aware of the limits and they would not seek support from this case as a precedent. We are sure that if precedent value is sought to be derived out of this decision, the Court which is asked to use this as an instrument would be alive to the peculiar facts and circumstances of the case in which this order is being made. (Para 17)

       As per Venkatachaliah, J -(dissenting). Considerations of finality arc subject to the paramount considerations of justice; but the remedial action must be appropriate and known to law. The question is whether there is any such gross miscarriage of justice in this case, if so whether relief can be granted in the manner now sought. (Para 1)

       Admittedly, this order was made after hearing and does not share the alleged vitiating factors attributed to the order dated 16-2-1984. That order concludes everything necessarily inconsistent with it. In all humility, I venture to say that the proposed remedy and procedure for its grant are fraught with far greater dangers than the supposed injustice they seek to relieve: and would throw open an unprecedented procedural flood-gate which might, quite ironically, enable a repetitive challenge to the present decision itself on the very grounds on which the relief is held permissible in the appeal. To seek to be wiser than the law, it is said, is the very thing by good laws forbidden. Well trodden path is the best path. (Para 2)

       Appellant has confined his challenge to what he calls the constitutional infirmity-and the consequent nullity-of the directions given as to the transfer of the case to a Judge of the High Court. In effetuation of the directions dated 16-2-1984 of this Court the trial went on before three successive learned Judges of the High Court. It is not necessary hereto advert to the reasons for the change of Judges. It is, however, relevant to mention that when the matter was before Khatri, J. who was the first learned Judge to be designated by the Chief Justice on the High Court, the appellant challenged his jurisdiction, on grounds, which amounted to a challenge to the validity of directions of this Court for the transfer of the case. Khatri, J. quite obviously, felt bound to repel the challenge to his jurisdiction. Learned Judge said appellants remedy, if any was to seek a review of the directions dated 16-2-1984 at the hands of this Court. Appellant did not seek any review of the directions at the hands of the Bench which had issued them, but moved in this Court a Writ Petition No. 708 of 1984 under Article 32 of the Constitution assailing the view taken by Khatri, J. as to jurisdiction which in substance meant a challenge to the original order dated 16-2-1984 made by this court. A division Bench consisting of D.A. Desai and A.N. Sen, n. dismissed the writ petition. It is also relevant to refer here to another pronouncement of a five-Judge bench of this Court dated 5-4-1984 in R S. Nayak v. A.R. Anrulay, 1984(3) SCR 412 in Criminal Misc. Petition No. 1740 of 1984 disposing of a prayer for issue of certain directions as to the procedure to be followed before the designated Judge of the High Court. The bench referred to the provisions of law, which according to it, enabled the transfer of the trial of the criminal case to the High Court. The view taken by my two learned Brothers, it is need less to emphasize, has the effect of setting at naught this pronouncement of the five-Judge Bench as well. (Para 3)

       As a learned author said, while infallibility is an unrealizable ideal, "correctness", is often a matter of opinion. An erroneous decision must be as binding as a correct one. It would be an unattainable ideal to require the binding effect of a judgment to defend on its being correct in the absolute, for the test of correctness would be resort to another Court the infallibility of which is again subject to a similar further investigation. No self-respecting Judge would wish to act if he did so at the risk of being called a usurper whenever he failed to anticipate and predict what another Judge thought of his conclusions. Even infallibility would not protect him; he would need the gift of prophecy-ability to anticipate the fallibilities of others as well. A proper perception of means and ends of the judicial process, that in the interest of finality it is inevitable to make some compromise between its ambitions of ideal justice in absolute terms and its limitations. (Para 9)

       The expression "jurisdiction" or the power to determine is, it is said, a verbal cast of many colours. In the case of a Tribunal, an error of law might become not merely an error in jurisdiction but might partake of the character of an error of jurisdiction. But, otherwise, jurisdiction is a legal shelter-a power to bind despite a possible error in the decision. The existence of jurisdiction does not depend on the correctness of its exercise. The authority to decide embodies a privilege to bind despite error, a privilege which is inherent in and indispensable to every judicial function. The characteristic attribute of a judicial act is that it binds whether it be right or it be wrong. Reliance on the Anisminic principle is wholly misplaced in this case. That case related to the powers of Tribunals of limited jurisdiction. It would be a mistake of first magnitude to import these inhibitions as to jurisdiction into the concept of the jurisdiction of superior courts. A finding of a superior court even on a question of its own jurisdiction, however grossly erroneous it may, otherwise be, is not a nullity; nor one which could at a11 be said to have been reached without jurisdiction, susceptible to be ignored or to admit of any collateral-attack. Otherwise, the adjudications of superior courts would be held-up to ridicule and the remedies generally arising from and considered concomittants of such classification of judicial-errors would be so seriously abused and expanded as to make a mockery of those foundational principles essential to be stability of administration of justice. The superior court has jurisdiction to determine its own jurisdiction and an error in that determination does not make it an error of jurisdiction. (Para 11)

       The exclusiveness of jurisdiction of the special judge under section 7(1) of 1952 Act, in turn, depends on the construction to be placed on the relevant statutory-provision. If on such a construction, however erroneous it may be, the court holds that the operation of section 407, Cr. P.C. is not excluded, that interpretation will denuder the plenitude of the exclusivity claimed for the forum. To say that the court usurped legislative powers and created a new jurisdiction and a new forum ignores the basic concept of functioning of courts. The power to interpret laws is the domain and function of courts. (Para 13)

       The pronouncements of every Division": Bench of this Court are pronouncements of the Court itself. A larger bench, merely on the strength of its numbers, cannot undo the finality of the decisions of other division benches. If the decision suffers from an error the only way to correct it, is to go in Review under Article 137 read with Order 40 Rule 1 framed under Article 145 before "as far as is, practicable" the same judges. This is not a matter merely of some dispensable procedural form but the ,requirement of substance. (Para 14)

       Maxim (Actus Curiae Nerninem Gravabid) has no application to conscious conclusions reached in a judicial decision. The maxim is not a source of a general power to reopen and rehear adjudication which have otherwise assumed finality. The maxim operates in a different and narrow area. The best illustration of the operation of the maxim is provided by the application of the rule of nunc-pro-tunc. For instance, if owing to the delay in what the court should, otherwise, have done earlier but did later, a party suffers owing to events occurring in the interrugnum, the Court has the power to remedy it. The area of operation of the maxim is, generally, procedural. Errors in judicial findings, either of facts or law or operative decisions consciously arrived at as a part of the judicial-exercise cannot be interfered with by resort to this maxim. There is no substance in contention (h). It is true that the highest court in the land should not, by technicalities of procedure forge fetters on its own feet and disable itself in cases of serious miscarriages of justice. It is said that "Life of law is not logic; it has been experience." But it is equally true as Cordozo said: But hoilmes did not tell us that logic is to be ignored when experience is silent "Those who do not put the teachings of experience and the lessons of logic out of consideration would tell what inspires confidence in the judiciary and what does not. Judicial bacillations fall in the latter category and undermine respect of the judiciary and judicial institutions, denuding thereby respect for law and the confidence in the even handedness in the administration of justice by Courts. It would be gross injustice, says an author, (Miller-data of jurisprodence) to decide alternate cases on opposite principles. The power to alter a decision by review must be expressly conferred or necessarily inferred. The power of review-and the limitations on power-under Article 137 are implicit recognitions of what would, otherwise, be final and irrevocable. No appeal could be made to the doctrine of inherent powers of the Court either. Inherent powers do not confer, or constitute a source of, jurisdiction. They are to be exercised in aid of a jurisdiction that is already invested. The remedy of the appellant, if any, is recourse to Article 137; no where else. This appears to me both good sense and good law. (Para 25 and 26)

       As per Ranganathan, J-(dissenting). The first thought that would occur to anyone who seeks a modification of an order of this Court, particularly on the ground that it contained a direction regarding which he had not been heard, would be to seek a review of that order under Article 137 of the Constitution read with the relevant rules. (Para 29)

       The power of review is conferred on this Court by Article 137 of the Constitution. It is subject not only to the provisions of any law made by Parliament (and there is no such law so far framed) but also to any rules made by this Court under article 145. This Court has made rules in pursuance of Article 145 which are contained in Order XL in Part VIII of the Supreme Court Rules. (Para 30)

       The prayer for review is being made very belatedly, and having regard to the circumstances outlined above there is hardly any reason to condone the delay in the prayer for review. The appellant was alive to all his present contentions as is seen from the papers in the writ petition. At least when the writ petition was dismissed as an inappropriate remedy, he should have at once moved this Court for review. The delay from April, 1984 to October, 1986 is totally inexplicable. That apart, there is also validity in the respondents contestation that, even if we are inclined to condone the delay, the application will have to be heard as far as possible by the same learned Judges who disposed of the earlier matter. In other words, that application will have to be heard by a Bench, which includes the two learned Judges who disposed of the appeal on 16-2-1984 and who are still available in this Court to deal with any proper review application, that may be filed. However, since in my view, the delay has not been satisfactorily explained, I am of opinion that the prayer of the appellant that the present pleas may be treated as one in the nature of a review application and the appellant 2iven relief on that basis has to be rejected. (Para 35)

       The word "jurisdiction is a verbal coat of many colours." It is used in a wide and broad sense while dealing with administrative or 61uasi-judicial tribunals and subordinate courts over which the superior courts exercise a power of judicial review and superintendence. Then it is only a question of "how much latitude the court is prepared to allow" and "there is no yardstick to determine the magnitude of the error other than the opinion of the court." But the position is different with superior courts with unlimited jurisdiction. These are always presumed to act with jurisdiction and unless it is clearly shown that any particular order is patently one which could not, on any conceivable view of its jurisdiction, have been passed by such court, such an order can neither be ignored nor even recalled, annulled, revoked or set aside in subsequent proceedings by the same court. (Para 44)

       In the present case, the order passed is not one of patent lack of jurisdiction, as I shall explain later. Though I have come to the conclusion, on considering the arguments addressed new before us, that the direction in the order dated 16-2-1984 cannot be justified by reference to Article 142 of the Constitution or section 407 of the 1973 Cr. P.C., that is not an incontrovertible position. It was possible for another court to give a wider interpretation to these provisions and come to the conclusion that such an order could be made under those provisions. If this Court had discussed the relevant provisions and specifically expressed such a conclusion, it could net have been modified in subsequent proceedings by this Bench merely because we are inclined to hold differently. The mere fact that the direction was given, without an elaborate discussion, cannot render it vulnerable to such review. (Para 45)

       The appellants counsel has relied to a considerable extent on the maxim" actus curiae neminem gravabit" for contending that it is not only within the power, but a duty as well, of this Court to correct its own mistakes in order to see that no party is prejudiced by a mistake of the Court. I am not persuaded that the earlier decision could be reviewed on the application of the said maxim. I share the view of my learned brother Venkatachaliah, J. that this maxim has very limited application and that it cannot be availed of to correct or review specific conclusions arrived at in a judicial decision. My brother Venkatachaliah, J. has further taken the view that this Court cannot exercise any inherent powers for setting right any injustice that may have been caused as a result of an earlier order of the Court. While alive to the consideration that "the highest court in the land should not, by technicalities of procedure, forge fetters on its own feet and disable itself in cases of serious miscarriages of justice", he has, nevertheless, come to the conclusion that "the remedy of the appellant, if any, is by recourse to Article 137 and nowhere else." It is at this point that I would record a dissent from his opinion. In my view the decisions cited to indicate that situations can and do arise where this Court may be constrained to recall or modify an order which has been passed by it earlier and that when ex fade there is something radically wrong with the earlier order, this Court may have to exercise its plenary and inherent powers to recall the earlier order without considering itself bound by the nice technicalities of the procedure for getting this done. Where a mistake is committed by a subordinate court or a High Court, there are ample powers in this Court to remedy the situation. But where the mistake is in an earlier order this Court, there is no way of having it corrected except by approaching this Court. Sometimes, the remedy sought can be brought within the four corners of the procedural law in which event there can be no hurdle in the way of achieving the desired result. But the mere fact that, for some reason, the conventional remedies ate not available should not in my view, render this Court powerless to give relief. As pointed out by Lord Diplock in Iscaac v. Robertson 1984(3) AER 140, it may not be possible or prudent to lay down a comprehensive list of defects that will attract the ex debito justitiae relief. Suffice it to say that the court can grant relief where there is some manifest illegality or want of jurisdiction in the earlier order or some palpable injustice is shown to have resulted. Such a power can be traced either to Article 142 of the Constitution or to the powers inherent in this Court as the apex court and the guardian of the Constitution. It is, however, indisputable that such power has to be exercised in the "rarest of rare" cases. As rightly pointed out by Sri Jethmalani, there is great need for judicial discipline of the highest order in exercising such a power, as any laxity in this regard may not only impair the eminence, dignity and integrity of this Court but may also lead to chaoti consequences. Nothing should be done to create an impression that this Court can be easily persuaded to alter its view on any matter and that a larger Bench of the Court will not only be able to reverse the precedential effect of an earlier ruling but may also be inclined to go black on it and render it ineffective in its application and binding nature even in regard to subsequent proceedings in the same case. (Paras 48 and 49)

       On the question whether this Court could transfer the case to a High Court Judge, who was not a Special Judge, a court could certainly accept the view urged by Sri Ram Jethmalani that section 7(1) of the 1952 Act should not be so construed as to exclude the application of the procedural provisions of the Cr. P.C. in preference to the view that has found favour with me. Though the order dated 16-2-84 contains no reference to, or discussion of, section 407 Cr. P.C., this line of thinking of the Judges who issued the direction does surface in their observations in their decision of even date rendered on the complainants Special Leave Petition, 1984(2) SCR 914 at page 943-4. I have already pointed out that, if the transfer is referable to section 407 of the 1973 Cr. P.C., it cannot be impugned as offending Articles 14 and 21 of the Constitution. The mere fact that the Judges did not discuss at length the facts or the provisions of section 407 Cr. P.C. vis-a-vis the 1952 Act or give a reasoned order as to why they though that the trial should be in the High Court itself cannot render their direction susceptible to a charge of discrimination. A view can certainly be taken that the mere entrustment of this case to the High Court for trial does not perpetrate manifest or gave in justice. On the other hand, prima facie, it is something beneficial to the accused and equitable in the interest of justice. Such trial by the High Court, in the first instance, will be the rule in cases where a criminal trial is withdrawn to the High Court under section 407 of the Cr. P.C. or where a High Court Judge has been constituted as a Special Judge either under the 1952 Act or some other statute. The absence of an appeal to the High Court with a right of seeking for further leave to appeal to the Supreme Court may by the consideration that the original trial will be in the High Court (as in Sessions cases of old, in the Presidency Towns) with a statutory right of appeal to the Supreme Court under section 374 of the Cr. P.C. In this situation, it is difficult to say that the direction issued by this Court in the impugned order is based on a view which is manifestly incorrect, palpably absurd or patently without jurisdiction. Whether it will be considered right or wrong by different Bench having a second-look at the issues is a totally different thing. It will be agreed on all hands that it will not be have the prestige and glory of this Court as envisaged under the Constitution if earlier decision are revised or recalled solely because a later Bench takes a different view of the issues involved. Granting that the power of review is available, it is one to be sparingly exercised only in extraordinary or emergent situations when there can be no two opinions about the error or lack of jurisdiction in the earlier order and there are adequate reasons to invoke a resort to an unconventional method of recalling or revoking the same. In my opinion, such a situation is not present here. (Para 50)

       So far as this case is concerned, I have indicated earlier that the direction of 16-2-1984 cannot be said to have infringed the fundamental rights of the appellant or caused any miscarriage of justice. As pointed out by Sri Jethmalani, the appellant did not know, on 16-2-1984, that the Judges were giving such a direction and yet he did not protest. . Perhaps he did think that being tried by a High Court Judge would be more beneficial to him, as indeed was likely to be. That apart, as discussed earlier, several opportunities were available for the appellant to set this right. He did not move his little finger to obtain a variation of this direction from this Court. He is approaching the Court nearly after two years of his trial by the learned Judge in the High Court. Volumes of testimony, we are told have been recorded and numerous exhibits have been admitted as evidence. Though the trial is only at the stage of the framing charges, the trial being according to the warrant procedure, a lot evidence has already gone in and the result of the conclusions of Sabyasachi Mukharji, J. would be to wipe the slate clean. To take the entire matter back at this stage to square No. 1 would be the very negation of the purpose of the 1952 Act to speed up all such trials and would result in more injustice than justice from an objective point of view. As pointed out by Lord Denning in R. v. Secretary of State for the Home Department exrparte Mughal, 1973(3) All E.R 796, the rules of natural justice must not be stretched too far. They should not be allowed to be exploited as a purely technical weapon to undo a decision which does not in reality cause substantial injustice and which, had the party been really aggrieved thereby, could have been set right by immediate action. After giving my best anxious and deep thought to the pros and cons of the situation I have come to the conclusion that this is not one of those cases in which I would consider it appropriate to recall the earlier direction and order a retrial of the appellant do novo before a Special Judge. (Para 51)

       D. CONCEPT OF SPEEDIER TRIAL

       Constitution of India-Article 21 - On grounds of expediency of trial, a person cannot be subjected to a procedure unwarranted by law and contrary to constitutional safeguards.

       E. DOCTRINE OF PER INCURIAM

       Per incuriam decision-Can be ignored by the Court-Whether can be corrected in subsequent proceedings? (Yes, Majority view).

       Held:

       As per Sabyasachi Mukharji, J.-"Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. (Para 18)

       The court ex debite justitiae can always remedy directions given per incuriam and in violation of certain constitutional limitations and in derogation of the principles of natural justice. (Para 39)

       As per Venkatachaliah, J.-(Dissenting) the circumstance that a decision is reached per incuriam, merely serves to denued the decisions of its precedent value. Such a decision would not be binding as a judicial preceding a co-ordinate Bench can disagree with it and decline to follow it. A larger bench can over rule such decision. When a previous decision is so overruled it not happen--nor has the overruling bench any jurisdiction so to do-that the finality of the operative order, inter-parties, in the previous decision is overturned. In this context the word decision means only the reason for the previous order and not the operative order in the previous decision, binding inter-parties. Even if a previous decision is overruled by a larger-bench, the efficacy and binding nature, of the adjudication expressed in the operative order remains undisturbed inter-parties. Even if the earlier decision of the five-Judge bench is per incuriam the operative part of the order cannot be interfered within the manner now sought to be done. That apart the five-Judge bench gave its reason. The reason, in our opinion, mayor may not be sufficient. (Para 24)

       F. GOLDEN RULE OF INTERPRETATION OF STATUTES

       Interpretation of Statutes - Words should normally be given their ordinary meaning bearing in mind the context-It is only where the literal meaning is not clear that one resorts to the golden rule -Relationship between the literal and mischief roles of interpretation. (Observations of Tindal, C.J., in susex Peerage Claim case. (1844) 11 Cl. & Fin. 85: followed).

       SUPREME COURT NOT COMPETENT TO ISSUE DIRECTIONS—TRANSFERRING CORRUPTION CASE TRIABLE BY THE SPECIAL JUDGE TO THE HIGH COURT - JUDGMENT OF THE HIGH COURT IS BINDING IN ALL SUBSEQUENT PROCEEDING IN THE CASE - POWER TO SUPREME COURT IN CORRUPTION CASES TRIABLE BY SPECIAL JUDGE - POWER OF SUPREME COURT IN CORRUPTION CASES TRIABLE BY SPECIAL JUDGE