IMPORTANT POINT
Special Leave once granted after hearing other party cannot be revoked unless any ground to revoke the leave is made out.

JUDGMENT

E. S. Venkataramiah, J.-The Special leave was granted by this court in this case in the presence of the learned counsel for the respondents and after hearing his submissions. Today we are asked to revoke the leave already granted by us. We have considered the points urged before us in support of the application for revocation. We do not find any ground to revoke the special leave already granted by us. Shri Jethmalani learned counsel for the respondents reiterates his request which he had made on the date on which the Special leave was granted, namely that this case should be referred to a Constitution Bench. Having regard to the various aspects of this case and the points which arise for consideration which we have recorded in the form of a note which forms part of this order, we agree with Shri Jethmalani that this case should be referred to a larger bench. We accordingly direct that this case should be listed for hearing before a bench of 7 judges of this Court. Liberty to mention for early hearing. The papers may be placed before the Honble the Chief Justice of India for further directions regarding Constitution of the Bench.

2. The prayer for vacating the stay is rejected.

Order accordingly.

NOTE APPENDED

A private complaint was first heard by Shri R.B. Sule who had been appointed as a Special Judge under section 6 (1) of the Criminal Law Amendment Act, 1952 by the Government of Maharashtra. The said Special Judge discharged the accused on the ground that there was no valid sanction to institute the complaint.

The correctness of the said order of the Special Judge was challenged before this Court by the complainant in appeal. That appeal was allowed and the order of discharge passed by the Special Judge was set aside on February 16, 1984.

The operative part of the judgment of this Court (R.S. Nayak v. A.R. Antulay (1984) S.C.R. 495) is found at page 557 of the Report. It reads thus:

"This appeal accordingly succeeds and is allowed. The order and decision of the learned Special Judge Shri R.B. Sule dated July. 25, 1983 discharging the accused in Special Case No. 24 of 1982 and Special Case No. 3/83 is hereby set aside and the trial shall proceed further from the state where the accused was discharged.

The accused was the Chief Minister of a premier State-the State of Maharashtra. By a prosecution launched as early as on September 11, 1981, his character and integrity came under a cloud. Nearly 2½ years have rolled by and the case has not moved an inch further. An expeditious trial is primarily in the interest of the accused and a mandate of Art. 21. Expeditious disposal of a criminal case is in the interest of both the prosecution and the accused. Therefore, Special Case No. 24 of 1982 and Special Case No. 3/83 pending in the Court of Special Judge, Greater Bombay Shri R.B. Sule are withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court. On being so assigned, the learned Judge may proceed to expeditiously dispose of the cases preferably by holding the trial from day to day."

In this case the following points arise for consideration:

1. If an order of transfer of a criminal case which purports to violate Article 14 and Article 21 is passed against an accused person by this Court without any pleading or hearing or even consulting his wishes in that regard, can he not question it by an independent petition since a review is not an adequate remedy because the petitioner in a view petition (which by its very nature is of a restricted character) has no right of personal hearing at the stage of admission of the review petition?

2. Under the Criminal Law Amendment Act, 1952 an offence punishable under section 5 of the Prevention of Corruption Act or under sections 161, 162, 163, 164, 165 and 165A of the Indian Penal Code can be tried only by a Special Judge appointed under section 6 of that Act by the State Government. In orde