Holding

The petition to revoke the special leave cannot be granted; the special leave stands.

Summary

The petition sought revocation of special leave that had been granted by the Supreme Court in the presence of the respondents' counsel after hearing. The Court examined whether it could set aside its own order of special leave, considering the procedural propriety of the original grant and the constitutional implications of transferring the case without the accused’s hearing. It also considered the statutory requirement that offences under the Criminal Law Amendment Act, 1952 be tried by a Special Judge appointed by the State Government, and the impact of a transfer order on Articles 14 and 21 of the Constitution. The Court held that a petition to revoke special leave could not be entertained because the leave was validly granted after due hearing. Consequently, the petition for revocation was dismissed and the special leave remained in force.

Issues considered

Whether the Supreme Court can revoke a special leave order after it has been granted in the presence of counsel and after hearing.
Whether a transfer order of a criminal case, passed without the accused’s hearing, violates Articles 14 and 21 of the Constitution.
Whether the Criminal Law Amendment Act, 1952 mandates that the trial be conducted by a Special Judge appointed by the State Government and precludes transfer to a regular High Court Judge.
Whether the accused has a statutory right of appeal under Section 374(1) of the Criminal Procedure Code or must rely on special leave under Article 136.
Whether expeditious disposal of the case through transfer infringes the principles laid down in Anwar Ali Sarkar’s case.
Whether a decision of this Court rendered per incuriam can be treated as binding precedent.

Legislation cited

Code of Criminal Procedure, 1973s. 374(1), s. 406, s. 407
Constitution of Indias. Article 136, s. Article 14, s. Article 21
Criminal Law Amendment Act, 1952s. 5, s. 6, s. 6(2), s. 7(1)
Indian Penal Code, 1860s. 161, s. 162, s. 163, s. 164, s. 165, s. 165A
Prevention of Corruption Acts. 5
Supreme Court Ruless. Order XVI, s. Order XXLVII

Subjects

special leaverevocationcriminal procedureArticle 14Article 21transfer of caseSpecial JudgeCriminal Law Amendment Act 1952constitutional lawexpeditious trialjurisdiction

Judgment

A.R. ANTULAY
A
v.
R.S. NAlK & ORS.

OCTOBER 29, 1986

[E.S. VENKATARAMIAH AND SABY ASACHI MUKHARJI, JJ.l B

,.,.
.
Supreme Court Rules, 1966 Order XVI read.

With Order XXLVII-Revocation of special leave-Whether an
application for revocation of special leave can be granted by the
\. §upnmie Court .when in a case in the presence of ihe counsel for th51
""' _ / respondents and after hearing his submissions the said special leave was C
granted.

HELD: Having regard to the varloos mpects of the case llDCI the
important points of law which arise for consideration the petition to
revoke the special leave cannot be granted. Further the special leave, D
was granted by the Court in the presence of the coumel-for the respon-
dents and after hearing tm submissions. The petition has not only
culminated in criminal appeal hnt the very same counsel has made a
request that the case should he referred to a Constitu1ioo Bench. [92B, 9IH]

CRIMINAL APPELLATE JURISDICTION: Criminal Miscel- E
laneous Petition No. 4248 of 1986
IN
Criminal Appeal No. 468 of 1986

From the Judgment and Order dated 24. 7. 1986 of the Bombay F
High Court in special Case No. 24 of 1982 ..

-{
.... .
Ram Jethmalani and Miss Rani Jethmalani for the Appellant .

P.P. Rao, R.S. Desai, M.N. Shroff, A.M. Khanwilkar and A.S.
Bhasme for the Respondents. G

The following Order of the Court was delivered:

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 a5ked to revoke the leave already H

~l
A.R. ANTULAY L R.S. NAIK 93
ched as early as on September II, 1981, his character and A
integrity came under a cloud. Nearly 2V2 years have rolled
by and the case has not moved an inch further. An expediti-
ous 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 13
.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
tlie High Court. On being so assigned, the learned Judge
may proceed to expeditiously dispose of the cases prefer- c
ably by holding the trial from day to day."

In this case the following points arise for consideration:

I. If an order of transfer of a criminal case which purports
to violate Article 14 and Article 21 is passed against an D
accused person b.y this Court without any pleading or
hearing or even consulting his wishes in that regard, can
h~ ;:iot question it by an independent petition since a
review is not an adequate remedy because the petitioner
in a revie.w petition (which by its very nature is of a
. ). E
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 off-
ence punishable under section 5 of the Prevention of
C0rruption Act or under sections 161, 162, 163, 164, 165
and 165A of the Indian Penal Code can be tried only by F
a Special Judge appointed under section 6 of that Act b.y
the State Government. An order of transfer by this
Court cannot be a substitute for an order of appoint-
ment to be made by the State Government under sec-
tion 6 of that Act. In Gurucharandas Chadha v. State of
Rajasthan, [1966] .2 S.C.R. 678 it is laid down that the G
trial by a special Judge is the sine qua non of a trial
under that Act and a case cal) be trnsferred by this Court
from one Special Judge to another Special Judge only.
That means that all other courts including the High
Court are excluded. In Bhajahari Monda/ v. State of
H
West Bengal. [1959] S.C.R. 1276 it is held that the trial
94 SUPREME COURT REPORTS [ 1987] 1 S.C.R.

A by a Judge who is not authorised to try a case amounts
'~
to an incurable illegality and the trial would be a nullity.
In view of these decisions can the trial in this case pro-
ceed before a High Court Judge who is not a Special
Judge? It may be noted that section 7( 1) of the Criminal
Law Amendment Act, 1952 which opens with a non-
B obstante clause prevails upon every provision in the
Criminal Procedure Code including sections 406 and 407 ,...
which deal with the powers of transfer of criminal cases
exercisable by the Supreme Court and the High Court
respectively and upon every other law in force. Does not
the order of transfer in this case deny the right of the _j
~-

c accused to be tried according to the procedure estab-
lished by law and is not Article 21 violated thereby?
'"'
. )ff
3. Has the accused in this case a remedy by way of appeal .·
as of right under the Criminal Procedure Code? There
appears to be a reasonable doubt in this case because
D section 374( 1) of the Code of Criminal Procedure, 1973
provides for an appeal to this Court against a conviction
by a Hiy,h Court under its extraordinary original crimi-
nal jurisdiction. Clause 24 of the Letters Patent of the
Bomaby High Court which confers extraordinary origi-
nal criminal jurisdiction on the High Court refers only
E to cases brought before the High Court by the Advocate
General, any Magistrate or any other officer specially ""
empowered by the Government in that behalf. But this

F
case is brought by a private person. If it falls outside
clause 24 of the Letters Patent, the accused will have
perhaps a remady of appeal by way of special leave of
this Court under Article 136 of the Constitution. Denial
-
/...(
of even one appeal as of right may amount to violation
of Article 14 and Article 21. Does not this question -1
require examination?

4. The Criminal law Amendment Act, 1952 as its preamble
G says is passed to provide for speedier trial? Does not
further speeding up of the case by transferring the case
of the High Court for speedy disposal violate the princi-
pie laid dow~ by seven learned Judges o; this Court in
Anwar Ali Sarkar's case [1952] S.C.R. 284 and result in
violation of Article 14 of the Constitution? The following
H observations of Vivian Bose, J. in Anwar Ali Sarkar's
A.R. ANTULAY v. R.S. NAIK 95

case at pages 366-367 of the Report are relevant: A

"Tested in the light of these considerations, I am of
opinion that the whole of the West Bengal Special
Courts Act of 1950 offends the provisions of article 14
and is therefore bad. When the froth and the foam of
discussion is cleared away and learned dialectics placed B
._..,
,. on one side, we reach at last the human element which
to my mind is the most important of all. We find men
accused of heinous crimes called upon to answer for
their lives and liberties. We find them picked out from
their fellows, and however much the new procedure
. may give them a few crumbs of advantage, in the bulk c
they are deprived of substantial and valuable privileges
of defence which others, similarly charged, are able to
claim. It matters not to me, nor indeed to them and their
families and their friends, whether this be done in good
faith, whether it be done for the convenience of govern-
ment, whether the process can be scientifically classified D
and labelled, or whether it is an experiment in speedier
trials made for the good of society at large. It matters not
how lofty and laudable the motives are. The question
with which I charge myself is, can fair'minded, reason-
able, unbiassed and resolute men, who are not swayed
by emotion or prejudice, regard this with equanimity E
and call it reasonable, just and fair, regard it as that
equal treatment and protection in the defence of

- liberties which is expected of a sovereign democratic
republic in the conditions which obtain in India today? I .
have but one answer to that. On that short and simple
~-- ground I would decide this case and hold the Act bad." F
(underlining by us)
).
Do not the above observations apply to judicial orders also?

If under the American Constitution a prisoner can
challange successfully a conviction which has become G.
final on the ground of contravention ·of the Vlth
Amendment even after he is sent to jail, by an indepen-
dent petition, (vide Gideon's case 372 U.S. 335) cannot
an Indian citizen who had not been heard by this Court
on the question of transfer complain by an independent
petition before this Court before the commencement of H
SUPREME COURT REPORTS [ 1987] I s_"c. R.

A the trial that his fundamental rights under Article 14 and
Article 21 are being violated even though he may have a
remedy of a restricted character like a review petition
and ask for a writ of prohibition against the trial Judge?

6. Does· the degree of heinousness of the crime with which
B
an accused is charged or his status or the influence that
he commands in society have any bearing on the
applicability or the construction of Article 14 or Article
21?

7. If a decision of this Court is given per incuriam, that is, ---{ 7
c without taking note of the appropriate legal provisions
can that decision be treated as a binding precedent? Is it
not a circumstance in jurisprudence which entitles a >.
Court to disregard and earlier judicial precedent?

(See Salmond's Jurisprudence (Eleventh Edn. P. 203).
D
8. We find that even when the accused in this case brought
to the notice of this Court (before a Bench presided over
by the Judge who delivered the judgment), the accused
was not given relief. He was asked to file a review peti-
tion which is restricted in character and where he would
E have .no right of oral hearing at the stage of admission or
to file any other application which he may be entitled in

F
law to file. In that situation, what is wrong in the
accused who apprehends that a trial is going on against
him contrary to the law and the Constitution without
giving him a reasonable opportunity of being heard
-
personally on that question as every other litigant in this
Court is given except in review petitions, raising the
question before the Judge who is trying him or in an
appeal filed before this Court against the order of the
Trial Judge?
G 9. Could the High Court not have requested the State
Government to appoint a Judge of the High Court as a
Special Judge in order to implement the direction of this
Court? If this was possible, both the order of transfer
passed by this Court and the Criminal Law Amendment
Act, 1952 could have been satisfied by the issue of the
H necessary notification by the Sate Government. If this
A.R. ANTU!.AY v. R.S. NAIK 97

\~ was possible, the accused can always raise the objection A
to the trial of the case before a Judge of the High Court
until the notification is issued by the Government
appointing him as a Special Judge, without in any way
questioning the binding nature of the order of this
Court, because while the order of transfer takes care of
the territorial jurisdiction of the Trial Judge, a notifica- . B
---;< lion issued by the Government would confer the neces-
sary competence on the Judge concerned. It may be
noted that in Chadha's (supra) this Court has made this
distinction between the territorial jurisdiction and the
c: _>..-- competence of the trial court.
c
There is another point to be considered in this
"!(. context. Section 6(2) of the Criminal Law Amendment
Act, 1952 says that a person shall not be qualified for
appointment as a Special Judge under that Act unless
' he is or has been a Sessions Judge or an Additional
Sessions Judge, or an Assistant Sessions Judge under D
the Code of Criminal Procedure. Even if the State
Government wishes to appoint a High Court judge as a
Special Judge it can only appoint such Judge who has
filled any of these offices under the Criminal Procedure
Code earlier. Justice P.S. Shah who is ·now trying the
). case was only a member of the Bar before he became a E
High Court Judge.

- 10. In recent times Article 21 is being interpreted liberally
and is being extended to issues which were not consi-

-('- dered to be within the scope. of Article 21. Does that
Article not, therfore, apply with greater force in the
case of those persons, i.e., persons accused of criminal
F

,..)- offences, for whom that Article was primarily intended?

11. Question of Judicial discipline: Recently the question
of constitutional validity of certain provisions of the
Punjab Pre-emption Act, 1913 as in force in Haryana G
came up for consideration before a Division Bench of
two Judges (E.S. Venkataramiah and R.B. Misra, JJ).
·y It was noticed by the Division Bench that the said pro-
visions had been upheld by a Constitution Bench in
• Ram Sarup v. Munshi, [1963] 3 S.C.R. 858. The Divi-
sion Bench felt that the decision in Ram Sarup's case H
98 SUPREME COURT REPORTS [ 1987] l S.C.R.

A (supra) was erroneous and needed reconsideration. It '..-
accordingly admitted the case, isssued stay orders and '
referred the matter to a larger Bench. Thereupon
another Constitution Bench of five Judges accepted
the reference, overruled tile view of the another Con-
B stitution Bench and declared the impunged provisions
as unconstitutional. (See A tam Prakash v. State of
Haryana, [1986] 2 S.C.C. 249). In almost all the cases y
references to larger Benches are made by smaller
Benches where the smaller Benches do not agree with
the view of a larger Bench expressed earlier. It was a

c smaller Bench which doubted the view in Shankari
Prasad's case [1952] S.C.R. 89 and in Sajjan Singh's
---£ -
case [1965] I S.C.R. 938 that referred the case to a
larger Bench which decided Golak Nath's case [1967] 2
S.C.R. 762. It was again a smaller Bench which did not _;.;
agree with the decision in Golaknath's case that refer-
D red the case to a larger Bench which decided the Kesh-
vananda Bharati's case [1973] Supp. S.C.R. I which
overruled Golaknath's case. In all such cases the smal-
ler Banches had entertained the petitions and passed
appropriate interim orders. In view of what is stated
above, can it be said that in this case the Division
E Bench which having regard to the various constitu-
tional issues involved in it merely granted Special ·-'
Leave to Appeal and issued an interim order of stay
had violated.rules of judicial discipline? Even if all the

F
issues are to be held against the appellant ultimately
after hearing the appeal until that decision is given by
this Court, is it not reasonable to stay the trial pending
-
disposal of this appeal?
~"
,\.
12. If ultimately it is found in this that the proceedings be-
fore the High Court con5equent upon the order of trans-
G fer are not constitutional, what is the effect of that deci-
sion on all the proceedings which have gone on till now
in the High Court and the decisions of this Court passed
in appeals against the orders of the High Court passed at
different stages in these proceedings? -',Y'

H