Holding

The High Court may validly transfer a non‑cognizable offence under FERA (as continued by Section 49(4) FEMA) to a Special Judge using its powers under Section 407 CrPC and Article 227, and such transfer does not extinguish the accused's right of appeal or revision.

Summary

The petitioners, children of a former Director of Animal Husbandry, were charged under Section 56 of the Foreign Exchange Regulation Act (FERA) for receiving foreign exchange. While the cases were pending before the Chief Judicial Magistrate, the State Government, with the High Court's resolution, transferred them to a Special Judge handling the fodder scam, invoking the Foreign Exchange Management Act (FEMA) and the High Court's powers under Section 407 of the CrPC and Article 227 of the Constitution. The petitioners challenged the transfer, arguing that the offence was non‑cognizable, triable only by a first‑class magistrate, and that the transfer deprived them of a right of appeal and revision. The Supreme Court held that the transfer was lawful because FERA offences continued to be governed by FERA under Section 49(4) of FEMA, the magistrate did not have exclusive jurisdiction, and the High Court could transfer the case using its judicial and administrative powers without stripping the petitioners of any appellate rights. Consequently, the Special Leave Petitions were dismissed.

Issues considered

The legality of transferring a case under Section 56 of FERA from a Chief Judicial Magistrate to a Special Judge.
Whether the High Court has authority under Section 407 CrPC and Article 227 to effect such a transfer.
Whether the transfer deprives the accused of a statutory right of appeal.
Whether the transfer eliminates the procedural right of revision.
Whether Section 56 of FERA, being a non‑cognizable offence, mandates trial exclusively before a first‑class magistrate.

Legislation cited

Code of Criminal Procedure, 1973s. 406, s. 407
Constitution of Indias. Article 227, s. Article 235
Foreign Exchange Management Act, 1999s. 49(4)
Foreign Exchange Regulation Act, 1973s. 56, s. 61, s. 62

Subjects

criminal trialtransfer of jurisdictionHigh Court powersSection 407 CrPCArticle 227FERAFEMAnon-cognizable offenceright of appealright of revisionspecial judge

Judgment

(2013] 14 S.C.R. 263

KAMLESH KUMAR AND ORS. A
v.
THE STATE OF JHARKHAND AND ORS.
(Special Leave Petititon (Crl.) Nos.6219-20 of 2012)
SEPTEMBER 26, 2013
B
[H.L. GOKHALE AND MADAN B. LOKUR, JJ.]

Criminal Trial ::- .Transfer of trial - AdministrAtive power
of High Court to effect transfer- Trial ot petitioners uls. 5~ o~
FERA before Magistrate - FERA replaced by FEMA - Full C
Court of High Court passed resolution transferring the trial
under FERA I FEMA to Special Judge hearing related
Fodder scam cases - State Government issued notification
empowering said Special Judge to the try the case of
petitioners - Transfer of petitioner's trial to the Special Judge D
- Legality of - Held: Though FERA came to be repealed and
replaced by FEMA, in view of s.49(4) of FEMA, all offences
committed under FERA continued to be governed by the
provisions of FERA, as if that Act had not been repealed -
s. 62 of FERA made the offence uls. 56 of FERA non- E
cognizable - Besides, s.61(1) of FERA stated that 'it shall be
lawful' for the Magistrate to pass the necessary sentence ul
s. 56 of FERA - It does not state that the Magistrate alone is
empowered to pass the necessary sentence, in which case
the proceeding cannot be transferred from his Court - The F
offence was a non-cognizable one, and therefore it was not
mandatory that it ought to have been tried only by the
Magistrate of the First Class - It cannot be said that the
Magistrate's Court had an exclusive jurisdiction to try the
cases relating to violations of the provisions of FERA, and
those cases could not be transferred to the Special Judge - G
High Court has power to transfer the cases and appeals u/
s.407 CrPC which is essentially a judicial power - It can also
transfer cases by exercising its administrative power of
263 H
264 SUPREME COURT REPORTS [2013] 14 S.C.R.

A superintendence available u!Art.227 of the Constitution -
Constitution of India, 1950 - Art. 227 - Foreign Exchange
Regulation Act, 1973- ss. 61and62, and ss.9(1) (a) and (b)
and ss. 56, 64(2) - Foreign Exchange Management Act,
1999 - s.49(4) - Code of Criminal Procedure, 1973 - s.407.
B
Criminal Trial - Trial of petitioners u/s. 56 of FERA before
Magistrate - FERA replaced by FEMA - Transfer of trial
under FERA I FEMA to Special Judge hearing related
Fodder scam cases - Whether right of appeal ava;table to the
C petit'iuriers taken away by such transfer- Held (per Lokur, J.},
No - Petitioners continued to have the right to appeal, but it
w.:1s only the forum that had changed - They could now prefer
appeal from the order of the Special Judge to the High Court
- Litigant neither has a right to appeal to a particular forum
nor to insist on. a particular procedure being followed in his
D case.

Revision - Righ,J of - Held( per Lokur, J.): It cannot be
said that a litigant has a "right" to have an adverse order
revised by a superior court - On the contrary, if there is any
E "n'ght" to revise, it is invested in the superior court - On facts,
trnnsfer of criminal trial from a Magistrate to a Special Judge
did not take away the "procedural facility" of revision available
to the accused-petitioners - It only changed the forum -
Petitioners have no right to choose the forum in which to file
F an appeal or move a petition for revising an interlocutory
order.

One 'K', earlier working as the Director of Animal
Husbandry department, Government of Bihar, was being
prosecuted by the Central Bureau of Investigation (C.B.I.)
G in the Court of Special Judge at Ranchi for conspiracy
to defraud the State Go.vernment. During investigation, it
was realized that 'K' had acquired huge movable as well
as immovable assets in his own name, and in the name
of his children at different places. 'K' and his children
H
KAMLESH KUMAR v. STATE OF JHARKHAND 265

were also therefore prosecuted in the case arising out of A
this investigation.

It was further revealed during the course of
investigation, that petitioners- the children of 'K', had
received huge amounts of Foreign Exchange. It was 8
suspected that these remittances were amounts
arrange-cl by certain persons involved in the animal
husbandry scam in violation of the provisions of the
Foreign Exchange Regulation Act, 1973 (FERA). It was
alleged that they had violated the provisions of Section C
9(1) (a) and (b) and 64(2) of the FERA, and rendered
themselves liable to be prosecuted under Section 56 of
the said Act.

The Enforcement Director accordingly filed cases
against the petitioners before the Chief Judicial D
Magistrate Ranchi for taking cognizance under Section
56 of FERA. The Enforcement Director however, realized
that many of the offenders in the FERA cases were also
accused in the cases pending before the Special Judge
in the Fodder scam cases.• and the documents relied upon E
and the witnesses to be examined were common. The
Director, therefore, wrote to the State Government
seeking to have these cases tried by the same court.
Accordingly, the Law Secretary of the Government of
Jharkhand wrote to the Registrar General of the High F
Court. In the meanwhile, from 1.6.2000, FERA was
replaced by the Foreign Exchange Management Act, 1999
- FEMA. Though FERA came to be repealed and replaced
by FEMA, in view of Section 49 (4) of FEMA, all offences
committed under FERA continue to be governed by the G
provisions of FERA, as if that Act had not been repealed.

The Full Court of Jharkhand High Court passed a
resolution on 25.4.2002, to empower the Special Judge,
CBI Animal Husbandry scam cases, to try the cases of
H
26,6 SUPREME COURT REPORTS (2013] 14 S.C.R.

A FEMA, 1999. Accordingly a notification was issued by the
State of Jharkhand on 17.5.2002, empowering the Special
Judge CBI (AHO Scam cases) to try the cases under
FEMA. The petitioners then filed Criminal Writ Petitions
to quash the notification dated 17 .5.2002 . The writ
B petitions were dismissed by the High Court and therefore
the present Special Leave Petitions (Criminal).

The Petitioners contended before this Court that the
transfer of appellants' prosecution under FERA I FEMA
·c from the Magistrate's Court to the Court of the Special
J1Udge was unlawful, since the disputed transfer was
being made to a Court which had no jurisdiction to try
the offence; that for offences for which the petitioners
were being prosecuted under Section 56 of FERA, the
punishment did not exceed 7 years of imprisonment; that
D the punishment being less than 7 years, the case was
triable by the Magistrate of the first class; and the State
Government was therefore, not competent to transfer the
prosecution under Section 56 of FERA from the Court of
Chief Judicial Magistrate to the Court of the Special
E .Judge; and further that this resulted into denial of one
right of appeal to the petitioners. It was also contended,
that the transfer of the cases could not have been
effected by the High Court without following the
procedure laid down under Section 407 of CrPC, and the
F impugned orders of transfer of case were therefore bad
in law.

Dismissing the Special Leave Petitions, the Court

HELD:
G
Per Gokhale, J.

1. The First Schedule to Cr.P.C. deals with the
Classification of Offences. Part-1 thereof deals with the
H t offences under the Indian Penal Code, Part-II deals with
KAMLESH KUMAR v. STATE OF JHARKHAND 267

classification of offences against other laws, which A
would include offences under laws such as FERA. The
petitioners were being prosecuted under Section 56 of
FERA, wherein the maximum punishment that could be
awarded was up to seven years. The second entry of this
Part-II laid down that such offences were triable by B
Magistrate of first Class, provided those offences were
cognizable offences. Section 62 of FERA made the
offence under Section 56 non-cognizable. Besid~s.
Section 61 (1) of FERA stated that 'it shall be lawful' for
the Magistrate to pass the necessary sentence under c
Section 56. It does not state that the Magistrate alone is
empowered to pass the necessary sentence, in which
case the proceeding cannot be transferred from his
Court. This provision is not like the one in the case of A.R.
Antu lay where under Section 7(1) of Criminal Law 0
Amendment 1952 Act, the offence was 'triable by special
judge only'. In the instant case it was merely lawful for
the Magistrate to try the offences under Section 61, but
the Court of Magistrate was not a court of exclusive
jurisdiction as in Antulay's case. The offence was a non- E
cognizable one, and therefore it was not mandatory that
it ought to have been tried only by the Magistrate of the
First Class. Thus the petitioner could not claim that the
Magistrate had the special jurisdiction .to try the offence,
and that the State could not transfer the case to the
Sessions Judge. In view thereof, it cannot be said that the F
Magistrate's Court had an exclusive jurisdiction to try the
cases relating to violations of the provisions of FERA,
and those cases could not be transferred to the Special
Judge. In the present case the accused were common,
many of the witnesses would be common, and so also G
their evidence. The High Court had administrative power
in such a situation to effect transfer. [Para 17] [283-B-H;
284-A]

1.2. The High Court does have the power to transfer H
268 SUPREME COURT REPORTS [2013) 14 S.C.R.

A the cases and appeals under Section 407 Cr.P.C. which
is essentially a judicial power. Section 407 (1)(c) Cr.P.C.
lays down that, where it will tend to the general
convenience of the parties or witnesses, or where it was
expedient for the ends of justice, the High Court could
8 transfer such a case for trial to a Court of Sessions. That
do1es not mean that the High Court cannot transfer cases
by exercising its administrative power of
suiperintendence which is available to it under Article 227
of the Constitution of India. [Para 19] [284-G-H; 285-A]

C A.R. Antulay v. R.S. Nayak and Anr. 1988 (2) SCC 602:
1988 (1) Suppl. SCR 1 - held inapplicable.

A.S. lmpex Limited & Ors. v. Delhi High Court & Ors. 107
(2003) Delhi Law Times 734 - overruled.
D
Ranvir Yadav v. State of Bihar 1995 (4) SCC 392: 1995
(2) SCR 826 - relied on.

Pranab Kumar Mitra v. The State of West Bengal and
Anr. 1959 Supp 1 SCR 63; Suraj Prakash Seth and another
E v. R.K. Gumani and another 1975 Mh.L.J 588 and Mahender
Singh v. High Court of Delhi and Anr. 2009 (151) Company
Cases 485 (Delhi) - referred to.

Per Lokur, J. [Concurring]
F HELD:

Validity of the notification of transfer (to the Special
Judge)

G 1. Insofar as the present case is concerned, it is
apparent from a reading of Section 56 of the FERA as also
Section ~1 of the FERA that exclusive jurisdiction has not
been conferred on the Magistrate to try cases relating to
a violation of the provisions of the FERA. Absent
H jurisdictional exclusivity, the principle of law laid down in
KAMLESH KUMAR v. STATE OF JHARKHAND 269

Antu/ay is not applicable and the Special Judge could A
have been conferred jurisdiction to try the case against
the petitioners. [Para 13] [290-G-H]

A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602: 1988 (1)
Suppl. SCR 1 - held inapplicable. B

R.S. Nayak v. A.R. Antulay (1984) 2 SCC 183: 1984 (2)
SCR 495 and Prem Chand Garg v. Excise Commissioner
1963 Supp (1) SCR 885 - referred to.

Right of appeal c
2.1. The right of appeal available to the petitioners in
the present case is not taken away by transferring the
case from the Magistrate to the Special Judge. The
petitioners continue to have the right to appeal, but it is
0
only the forum that has changed. They can now prefer
an appeal from the order of the Special Judge to the High
Court. Therefore, it is not as if the petitioners are denuded
of any right to agitate their cause in a superior forum by
the transfer of the case to the Special Judge. [Para 15]
[291-C-D] E

2.2. It is now. well settled that a litigant has neither a
right to appeal to a particular forum nor to insist on a
particular procedure being followed in his case. It cannot
be seriously urged that the petitioners were prejudiced F
by a change of the appellate forum. [Paras 16, 20] [291-
E; 292-F]

Rao Shiv Bahadur Singh v. State of Vindhya Pradesh
1953 SCR 118 - followed.
G
Union of India v. Sukumar Pyne AIR 1966 SC 1206:1966
SCR 34: Maria Cristina De Souza Sodder v. Amria Zurana
Pereira Pinto (1979) 1 SCC 92; T. Barai v. Henry Ah Hoe
(1983) 1 SCC 177: 1983 (1) SCR 905 and Mis Rai Bahadur
H
270 SUPREME COURT REPORTS [2013] 14 S.C.R.

A Seth Shreeram Durgaprasad v. Director of Enforcement
(1987) 3 sec 27: 1987 (3) SCR 137 - retied on.

Procedure for transfer:

3. In the present case, the High Court could have
B exercised its judicial power of transfer under Section 407
of the Code (if called upon to do so) and it could also
have exercised its administrative power of transfer under
Article 227 of the Constitution, which it did, as is evident
from the letter dated 6th May 2002 issued by the Registrar
C General of the High Court of Jharkhand to the Secretary
to the Government, Law (Judi.) Department, Government
of Jharkhand. The fact that for an administrative
L.';:.-, .. •,

exigency, the High Court decided to exercise -its plenary
administrative power does not per se lead to the
D conclusion that the transfer of the case from the
Magistrate to the Special Judge was unlawful. The leg_ality
of the action cannot be called in question in this case
since no prejudice has been caused to the petitioners by
such a transfer. [Para 24] [293-D-F]
E
Ranbir Yadav v. State of Bihar (1995) 4 SCC 392: 1995
(2) SCR 826 - relied on.

Right of revision

F 4. It cannot be said that a litigant has a "right" to have
an adverse order revised by a superior court. On the
contrary, if there i's any "right" to revise, it is invested in
the superior court. While the revisional power of a
superior court actually enables it to correct a grave error,
G the existence of that power does not confer any
corresponding right on a litigant. This is the reason why,
in a given case, a superior court may decline to exercise
its power of revision, if the facts and circumstances of the
case do not warrant the exercise of its discretion. This is
1-1 also the reason why it is felicitously stated that a revision
KAMLESH KUMAR v. STATE OF JHARKHAND 271

is not a right but only a "procedural facility" available to A
a party. If the matter is looked at in this light, the transfer
of a case from a Magistrate to a Special Judge does not
take away this procedural facility available to the
petitioners. It only changes the forum and as already held
above, the petitioners have no right to choose the forum B
in which to file an appeal or move a petition for revising
an interlocutory order. [Paras 27, 28] [294-E-H; 295-A]

A.S. lmpex Ltd. v. Delhi High Court 107 (2003) DLT 734
- overruled.
c
Mahender Singh v. High Court of Delhi (2009) 151
Comp Cas 485 (Delhi) and N.G. Sheth v. C.8.1. 151 (2008)
DLT 89 - approved.

Pranab Kumar Mitra v. State of West Bengal 1959(1) 0
Suppl. SCR 63; Akalu Ahir v. Ramdeo Ram (1973) 2 SCC
583: 1974 (1) SCR 130 - relied on.
Case Law Reference:
In the judgment delivered b~ Gokhale, J. E
1988 (1) Suppl. SCR 1 distinguished Para 10(i)
107 (2003) DLT 734 overruled Para 10(ii)
1995 (2) SCR 826 relied on Para 13
F
1959 Supp 1 SCR 63 referred to Para 15
1975 Mh.L.J 588 referred to Para 16
2009 (151) CC 485 (Delhi) referred to Para 18
G
In the judgment delivered b~ Lokur, J.
1988 (1) Suppl. SCR 1 held inapplicable Para 4
1984 (2) SCR 495 referred to Para 5
1963 Supp (1) SCR 885 referred to Para 9 H
272 SUPREME COURT REPORTS [~~013] 14 S.C.R.

A 1953 SCR 118 followed Para 16
1966 SCR 34 relied on Para 17
,
(1979) 1 sec 92 relied on Para 18
1983 (1) SCR 905 relied on Para 19
B
1987 (3) SCR 137 relied on Para 19
1995 (2) SCR 826 relied on Para 23
1959(1) Suppl. SCR 63 relied on Para 26
c 1974 (1) SCR 130 relied on Para 27
107 (2003) DLT 734 overruled Para 29
(2009) 151 Comp approved Para 31
Cas 485 (Delhi)
[)
151 (2008) .DLT 89 approved Para 31
CRIMINAL APPELLATE JURISDICTION: SLP (Criminal)
Nos. 6219-20 of 2012.

E From the Judgment & Order dated 19.07.2012 of the High
Court of Jharkhand at Ranchi in Writ Petition Criminal Nos. 95
& 112 of 2003.

Shekhar Naphade, Anil Kumar, A. Rohan Singh, Boboy
Postangbam, Naueen Kumar, D.P. Singh, Anil Kumar Mishra-
F I for the Petitioners.
P.P. Malhotra, ASG, M.R. Calla, Rarijana Narayan, Yasir
Rauf, B. Krishna Prasad, Siddhartha Panda, Ashok Mathur,
Partiksh, Jayesh Gaurav, Gopal Prasad for the Respondents.
G The Judgments of the Court was delivered by
H.L. GOKHALE, J. 1. These Special Leave Petitions
(Criminal) seek to challenge the judgment and order dated
19.7.2012, whereby a Learned Single Judge of the Jharkhand
H High Court dismissed the two Writ Petitions bearing Nos. Writ
KAMLESH KUMAR v. STATE OF JHARKHAND 273
[H.L. GOKHALE, J.]
Petition Nos.95 & 112 of 2003 filed by Shri Kamlesh Kumar A
and three others, all children of one Dr. K.M. Prasad who
worked earlier as the Director of Animal Husbandry department
in Government of Bihar. They are being prosecuted under the
provisions of Foreign Exchange Regulation Act, 1973 (in short
FERA), and those cases have been transferred to the Special B
Judge hearing the Fodder scam cases. In the above referred
Criminal Writ Petitions they had challenged the transfer of those
cases to the Special Court by contending that the transfer order
was bj3d.on various gro1.1nds, the principal amongst them being
that the State Government had no jurisdiction to authorise the c
Special Judge to try these cases under FERA. Those Criminal
Writ Petitions have been rejected, and hence these Special
Leave Petitions (Criminal) have been filed.

Facts leading this Criminal Petition are as follows:-
D
2. The above referred Dr. K.M. Prasad, father of the
petitioners, was working earlier as the Director of Animal
Husbandry department, Government of Bihar. He is being
prosecuted along with some others by the Central Bureau of
Investigation (C.B.I.) in the Court of Special Judge at Ranchi E
for conspiracy to defraud the State Government to the extent
of Rs.7,09,92,000/- during 1980-90 on the basis of fake
allotment letters purportedly issued by him for the purchase of
medicines. It is claimed that fake supplies were shown as made
by the suppliers, and the money withdrawn towards such fake F
allotments was misappropriated by the accused persons.

3. During the course of investigation it was realized that
the amount involved was much more, i.e. Rs.19,81,66,460/-
approximately, and that the accused Dr. K.M. Prasad had
acquired huge movable as well as immovable assets in his own G
name, and in the name of his children and others at different
places. The said Dr. K.M. Prasad and his children were also
therefore prosecuted in the case arising out of this
investigation, and charges have already been submitted by the
H
274 SUPREME COURT REPORTS (2013] 14 S.C.R.

A CBI against them, and the cases are pending in the court of
Special Judge CBI at Ranchi.

4. It was further revealed during the course of investigation,
that Mr. Kamlesh Kumar and three others, children of Dr. K.M.
B Prasad, had received huge amounts of Foreign Exchange over
U.S. $3, 15,000 and British £1000. It was suspected that these
remittances were not actually genuine gifts as claimed by them,
but were amounts arranged by certain persons involved in the
animal husbandry scam in violation of the provisions of FERA.
C It was alleged that they had violated the provisions of Section
9(1) (a) and (b) and 64(2) of the FERA, and rendered
themselves liable to be prosecuted under Section 56 of
the said Act.

5. The Enforcement Director accordingly filed cases
D against the petitioners before the Chief Judicial Magistrate
Ranchi for taking cognizance under Section 56 of FERA. The
Enforcement Director however, realized that many of the
offenders in the FERA cases were also accused in the cases
which were pending before the Special Judge in the Fodder
E scam cases, and the documents relied upon and the witnesses
to be examined were common. The Director, therefore, wrote
to the State Government on 25.1.2002 seeking to have these
cases tried by the same court. Accordingly, the Law Secretary
of the Government of Jharkhand wrote to the Registrar General
F of the High Court on 2.3.2002 and on 25.4.2002. Thereafter,
the full Court of Jharkhand High Court passed a resolution on
25.4.2002, to empower the Special Judge, CBI Animal
Husbandry scam cases, to try the cases of FEMA, 1999. (This
is because in the meanwhile, from 1.6.2000, FERA had been
G replaced by the Foreign Exchange Management Act, 1999 -
FEMA for short). Accordingly a notification was issued by the
State of Jharkhand on 17.5.2002, empowering the Special
Judge CBI (AHO Scam cases) to try the cases under FEMA.
Pursuant to that notification, the Complaint filed on 23.5.2002
before the Chief Judicial Magistrate, Ranchi was transferred
H
KAMLESH KUMAR v. STATE OF JHARKHAND 275
[H.L. GOKHALE, J.]
by order dated 31.5.2002, for trial to the court of the Learned A
Additional Judicial Commissioner cum Special Judge CBI
(AHO Scam cases) Ranchi.

6. This made the petitioners file the above referred
Criminal Writ Petitions to quash the notification dated B
17.5.2002. The Learned Single Judge of the Jharkhand High
Court at Ranchi dismissed the said Writ Petitions by his
judgment and order dated 19.7.2012. It is this order which is
under challenge in the present Special Leave Petitions
(Criminal).
c
7. The notification issued by the Jharkhand Government
dated 17.5.2002 reads as follows:-
"JHARKHAND GOVERNMENT
LAW (JUSTICE), DEPARTMENT
NOT/FICA TION D
RANCHI dated 17th Mav, 2002
Sr. Prabhu Tiwari, Special Judge, CBI (A.H.D Scam
cases), Ranchi, is being authorized for disposal of cases
of FEMA, 1979, in addition to his own works in the light of E
letter No. 3449/APPTT dated 06/05/2002 of Jharkhand
High Court, Ranchi.
By the order of Governor
(Prashant Kumar) Secretary to Government
Law(Justice) Department F
Jharkhand, Ranchi
Memo No. 1-Alcourt-Gathan-10312001-1111 /J Ranchi
dated 17th May 2002

Copy to, Superintendent, State Press, P.ost-Doranda, G
Ranchi for publishing the same in the next state gazette.
Secretary to Government
Law (Justice) Department
Jharkhand, Ranchi"
H
276 SUPREME COURT REPORTS [2013] 14 S.C.R.

A This notification had been issued in the light of letter dated
6.5.2002 from the Registrar General of the High Court of
Jharkhand, which reads as follows:-
"Office:-501449
Res:-503024
B Fax No: 0651-501114
No. 3449/APPT
Dated, Ranchi 0610512002
!BRAR HASSAN
Registrar General High Court of Jharkhand, Ranchi
C To
The Secretary to the Government
Law (Judi.) Department, Govt. of Jharkhand, Ranchi
Sir

D With reference to your Letter No. 1/A/Court-Estab-
10312001 J 531 dated 0210312002, I am directed to say
that the Court has been pleased to resolve that Sri
Prabhu Tiwary, Special Judge, C.B.I. (AHO Scam cases)
at Ranchi be vested with the Powers to try cases under
E Foreign Exchange Management Act, 1999.

I am further directed to say that since the vesting
of this power has to be effective before 31st May, 2002
immediate notification to this effect may be issued.
Yours faithfully
F
Registrar General
06. 05. 2002"
Submissions on behalf of the Petitioners:-

G 8. It was firstly submitted on behalf of the petitioners that
the transfer of appellants' prosecution under FERA I FEMA
from the Magistrate's Court to the Court of the Special Judge
was unlawful, since the disputed transfer was being made to a
Court which had no jurisdiction to try the offence. In this context,

H
KAMLESH KUMAR v. STATE OF JHARKHAND 277
[H.L. GOKHALE, J.]

it was submitted by learned senior counsel Mr. Shekhar A
Naphade appearing for the petitioners that for the offences for
which the petitioners were being prosecuted under Section 56
of FERA, the punishment did not exceed 7 years of
imprisonment. Since we are concerned with sub-section (1) of
Section 56, we may reproduce the said sub-section. We may B
note at this stage that though FERA came to be repealed and
replaced by FEMA with effect from 1.6.2000, in view of Section
49 (4) of FEMA, all offences committed under FERA continue
to be governed by the provisions of FERA, as if that Act had
not been repealed. This Section 56 (1) of FERA reads as c
follows:-

"56. Offences and prosecution- (1) Without
prejudice to any award of penalty by the adjudicating
officer under this Act, if any person contravenes any of
the provisions of this Act [other than section 13, clause D
(a) of sub-section (1) of [section 18, section 18A], clause
(a) of sub-section (1) of section 19, sub-section (2) of
section 44 and sections 57 and 58], or of any rule,
direction or order made thereunder he shall, upon
conviction by a court, be punishable- E

(i) in the case of an offence the amount or value involved
in which exceeds one lakh of rupees, with imprisonment
for a term which shall not be less than six months, but
which may extend to seven years and with fine: F
Provided that· the court may, for any adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than six
·months;
G
(ii) in any other case, with imprisonment for a term which
may extend to three years or with fine or with both."

9. It was then submitted that the punishment being less than
H
278 SUPREME COURT REPORTS [2013) 14 S.C.R.

A 7 years, as provided under the second entry of Part-II of First
Schedule to Cr.P.C., the offences which are punishable with
imprisonment for three years and upwards but not more than
seven years, and are cognizable and non-bailable offences, are
triable by the Magistrate of the first class. The State
B Government was therefore, not competent to transfer the
prosecution under Section 56 of FERA from the Court of Chief
Judicial Magistrate to the Court of the Special Judge. This is
because if so permitted it will result into denial of one right of
appeal to the petitioner.
c 10. (i) Reliance was placed in support of this proposition
on the judgment of a Constitution Bench of this Court in the case
of A.R. Antulay v. R.S. Nayak and Anr. reported in 1988 (2)
sec 602, and particularly paragraphs 55, 56, 77, 78 and 91
thereof to submit that this transfer will reduce the right of
D appellants to appeal. The transfer of the prosecution against
the petitioner A.R. Antu lay, from the Court of the Special Judge
to the High Court of Bombay was held to be in violation of the
Fundamental Rights of the petitioner, and therefore, without .
jurisdiction and null and void. It was held that the right of the
E petitioner to prefer an appeal against the decision of the Special
Judge to the High Court was taken away by such a transfer.

(ii) Reliance was also placed in this behalf on a judgment
of a Division Bench of Delhi High Court in the case of AS.
F lmpex Limited & Ors. v. Delhi High Court & Ors. reported in
107 (2003) Delhi Law Times 734. In that matter, the Court was
concerned with· the administrative order passed by the High
Court to transfer cases filed under Section 138 of the
Negotiable Instrument Act, 1881, from the Courts of Magistrates
G to the Courts of Additional Sessions Judges. The High Court
relied upon AR. Antu/ay (supra) and held that to deal with the
dishonour of cheques, a special jurisdiction was conferred on
the Metropolitan Magistrates or Judicial Magistrates First Class,
to try the offences under Section 138 of the Negotiable

H
KAMLESH KUMAR v. STATE OF JHARKHAND 279
[H.L. GOKHALE, J.]
Instrument Act 1881, and that jurisdiction could not be taken A
away by transferring these matters to the Sessions Courts.

11. It was also submitted, that the transfer of the cases
could not have been effected by the High Court without following
the procedure laid down under Section 407 of the Cr.P.C., and
8
impugned orders of transfer of cases were therefore bad in law.

Reply on behalf of the Respondents:-

12. The arguments of the learned counsel for the petitioner
were countered by Mr. P.P. Malhotra, learned Additional c
Solicitor General appearing for the respondents. He firstly drew
our attention to the fact that in Antulay's case, as recorded in
paragraph 19 of that judgment, the petitioner was being
prosecuted under Section 7(1) of the Criminal Law Amendment
Act 1952, and Section 7(1) of the said Act specifically D
mandated that offences in such cases shall be tried by a
Special Judge only.

13. Mr. Malhotra submitted that when the statute made such
a specific provision, the prosecution could not be withdrawn
from the specified court and transferred even to the High Court. E
It was in this context that Shri A.R. Antulay had suffered a
prejudice in as much as his right of appeal to the High Court
would get affected. In the present case, there was no such
specific provision that the offence shall be tried by a Magistrate
only. In support of his submissions Mr. Malhotra drew our F
attention to a specific judgment of this Court in .Ranvir Yadav
v. State of Bihar reported in 1995 (4) SCC 392 where the legal
proposition as stated in AR. Antulay (supra) came to be
explained in paragraph 14 thereof. In Ranvir Yadav (supra) this
Court was concerned with the administrative power of the High G
Court to transfer cases. While upholding the order of transfer,
this is what this Court observed in paragraph 14 thereof:-

"14. Coming now to A. R. Antulay case we find that
H
280 SUPREME COURT REPORTS [2013) 14 S.C.R.

A the principles of law laid down in the majority judgment,
to which Mr. Jethmalani drew our attention have no
manner of application herein. There questions arose as
to whether (i) the High Court could transfer a case triable
according to Criminal Law Amendment Act, 1952 ("1952
B Act" for short) by a Special Court constituted thereunder
to another court, which was not a Special Court and (ii)
the earlier order of the Supreme Court transferring the
case pending before the Special Court to the High Court
was valid and proper. In answering both the questions in
·c the negative the learned Judges, expressing the majority
view, observed that (i) Section 7(1) of the 1952 Act
created a condition which was sine qua non for the trial
of offences under Section 6(1) of the said Act. The
condition was that notwithstanding anything
contained in the Code of Criminal Procedure or any
D
other law the said offence shall be triable by Special
Judges only. By express terms therefore it took away the
right of transfer of cases contained in the Code to any
other court which was not a Special Court and this was
notwithstanding anything contained in Sections 406 and
E 407 of the Code and (ii) the earlier order of the Supreme
Court transferring the case to the High Court was not
authorised by law, namely, Section 7(1) of the 1952 Act
and the Supreme Court, by its direction, could not confer
jurisdiction on the High Court of Bombay to try any case
F for which it did not possess such jurisdiction under the
scheme of the 1952 Act. As in the present case the 5th
Court was competent under the Code to conduct the
sessions trial, the order of transfer conferring jurisdiction
on that court and the trial that followed cannot be said to
G be bad in law."

(emphasis supplied)

14. One of the submissions for the petitioners was that
since the offences under Section 56(1) are punishable with
H
KAMLESH KUMAR v. STATE OF JHARKHAND 281
[H.L. GOKHALE, J.]
imprisonment for a term which may extend to seven years only, A
they are triable by Magistrates of. the First Class only. Mr.
Malhotra, pointed out that it would be so if the offences are
cognizable as per the second entry of Part-II of First Schedule
to Cr.P .C. In the present case, the offences were non-
cognizable under Section 56 of FERA/, and the petitioners were B
being prosecuted thereunder. Section 62 of the FERA had
made the offences punishable under Section 56 as non-
cognizable ones. Section 62 of FERA reads as follows:-

"62. Certain offences to be non-cognizable-
Subject to the provisions of section 45 and· C
notwithstanding anything contained in the [Code of
Criminal Procedure, 1973 (2 of 1974], an offence
punishable under section 56 shall be deemed to be non-
cognizable within the meaning of that Code."
D
Consideration of rival submissions

15. It had been submitted on behalf of the petitioner that
one of the submissions accepted in AR. Antulay (supra) was
that his right to file an appeal would be affected. Mr. Malhotra E
pointed out that in the present case such a situation would not
arise. An appeal would lie certainly to the High Court against
the decision of the Special Judge. It would always be argued
that if the prosecution was conducted before the Court of the
Magistrate, an appeal would lie to the Court of Sessions, and
then a revision would be available to the High Court. Thus by
F
transferring the case from the Court of Magistrate to a Sessions
Judge, the opportunity of the petitioner to avail of a revision
would be affected. Mr. Malhotra however pointed out that there
was no right to file a revision as such, as distinguished from
the right of filing an appeal to the High Court. The petitioner can G
not claim to have suffered any prejudice on that count, since
there was no vested right to file a revision. In support of this
proposition he relied upon the following paragraph from the
Constitution Bench judgment of this Court in Pranab Kumar
H
282 SUPREME COURT REPORTS [2013) 14 S.C.R.

A Mitra v. The State of West Bengal and Anr. reported in 1959
Supp 1 SCR 63 at page 70:-

"In our opinion, in the absence of statutory provisions, in
terms applying to an application in revision, as there are
B those in s. 431 in respect of criminal appeals, the High
Court has the power to pass such orders as to it may
seem fit and proper, in exercise of its revisional
jurisdiction vested in it by s. 439 of the Code. Indeed, it
is a discretionary power which has to be exercised in aid
of justice. Whether or not the High Court will exercise its
c revisional jurisdiction in a given case, must depend upon
the facts and circumstances of that case. The revistonal
powers of the High Court vested in it by s. 439 of the
Code, read with s. 435, do not create any right in the
litigant, but only conserve the power of the High court to
D see that justice is done in accordance with the recognised
rules of Criminal Jurisprudence, and that subordinate
criminal courts do not exceed their jurisdiction, or abuse
their powers vested in them by the Code. On the other
hand, as already indicate,d a right of appeal is a statutory
E right which has got to be recognised by the courts, and
the right to appeal, where on exists, cannot be denied in
exercise of the discretionary power even of the High
Court ...... "

F 16. It was further pointed out by Mr. Malhotra that this view
had been followed by the High Courts, and for reference he
referred to a Division Bench judgment of Bombay High Court
in Suraj Prakash Seth and another v. R.K. Gurnani and
another reported in 1975 Mh.L.J 588, where the proposition
G laid down in P.K. Mitra (supra) had been referred to in support.
The High Court observed in paragraph 15 which reads as
follows:-

"15. . . .. The point which we wish to emphasise, however,
is that a party to a proceeding cannot as a matter of right
H
KAMLESH KUMAR v. STATE OF JHARKHAND 283
[H.L. GOKHALE, J.]
come to this Court for revision of any order passed by A
the lower Court, but it is a matter of practice that such
applications are entertained by this Court as a matter of
expediency. But no party has any vested right either in
procedure or in practice."
B
17. The First Schedule to Cr.P.C. deals with the
Classification of Offences. Part-1 thereof deals with the
offences under the Indian Penal Code, Part-II deals with
classification of offences against other laws, which would
include offences under laws such as FERA. The petitioners
were being prosecuted under Section 56 of FERA, wherein the C
maximum punishment th.at could be awarded was up to seven
years. The second entry of this Part-II laid down that such
offences were triable by Magistrate of first Class, provided
those offences were cognizable offences. As noted earlier,
Section 62 of FERA made the offence under Section 56 non- D
cognizable. Besides, Section 61 (1) of FERA stated that 'it
shall be lawful' for the Magistrate to pass the necessary
sentence under Section 56. It does not state that the Magistrate
alone is empowered to pass the necessary sentence, in which
case the proceeding cannot be transferred from his Court. This E
provision is not like the one in the case of A.R. Antulay (supra)
where under Section 7(1) of Criminal Law Amendment 1952
Act, the offence was 'triable by special judge only'. In the
instant case it was merely lawful for the Magistrate to try the
offences under Section 61, but the Court of Magistrate was not F
a court of exclusive jurisdiction as in Antulay's case. The offence
was a non-cognizable one, and therefore it was not mandatory
that it ought to have been tried only by the Magistrate of the
First Class. Thus the petitioner could not claim that the
Magistrate had the special jurisdiction to try the offence, and G
that the State could not transfer the case to the Sessions Judge.
In view of what is stated above, it cannot be said that the
Magistrate's Court had an exclusive jurisdiction to try the cases
relating to violations of the provisions of FERA, and those cases
could not be transferred to the Special Judge. In the present H
284 SUPREME COURT REPORTS (2013] 14 S.C.R.

A case the accused were common, many of the witnesses would
be. common, and so also their evidence. The administrative
power of the High Court in such a situation to effect transfer
has been upheld in the case of Ranvir Yadav (supra), and there
is no reason for this Court to take a different view in the facts
s of the present case.

18. The petitioner had relied upon the judgment of a
Division Bench of Delhi High Court in the case of A.S. lmpex
Limited (supra), on the question of transfer of a proceeding.
C Mr. Malhotra pointed out that although the judgment in Ranvir
Yadav (supra) was brought to the notice of the Division Bench
in that matter, the Division Bench had erroneously held that the
reliance thereon to be a 'misplaced' one, as can be seen from
the sentence at the end of paragraph 12 of that judgment. This
judgment has been distinguished and found to be not laying
D down a good law by another Division Bench of Delhi High Court
in Mahender Singh v. High Court of Delhi and Anr. reported
in 2009 (151) Company Cases 485 (Delhi). In that matter, the
Court was concerned with transfer of prosecutions under
Securities and Exchange Board Act, 1992 from the
E Magistrate's Court to Court of Sessions, and the High Court
has held it to be valid and permissible. The Division Bench in
Mahender Singh (supra) has in terms held that reliance on the
judgment in AR. Antu/ay (supra) to oppose such transfer was
of no help, and rightly so. There is no difficulty in stating that
F A. S. lmpex Limited (supra) does not lay down the correct
proposition of law.

19. The High Court does have the power to transfer the
cases and appeals under Section 407 of the Cr.P.C. which is
G essentially a judicial power. Section 407 (1) (c) of Cr.P.C. lays
down that, where it will tend to the general convenience of the
parties or witnesses, or where it was expedient for the ends of
justice, the High Court could transfer such a case for trial to a
Court of Sessions. That does not mean that the High Court
cannot transfer cases by exercising its administrative power of
H
KAMLESH KUMAR v. STATE OF JHARKHAND 285

superintendence which is available to it under Article 227 of the A
Constitution of India. While repelling the objection to the
exercise of this power, this Court observed in paragraph 13 of
Ranvir Yadav (supra) as follows:-

"13. We are unable to share the above view of Mr.
8
Jethmalani. So long as power can be and is exercised
purely for administrative exigency without impinging
upon and prejudicially affecting the rights or interests of
the parties to any judicial proceeding we do not find any
reason to hold that administrative powers must yield C
place to judicial powers simply because in a given
circumstance they coexist ...... "

20. For the reasons stated above, there is no substance
in the objections raised by the petitioners. The High Court has
looked into Section 407 of Cr.P.C., referred to Articles 227 and D
235 of the Constitution of India, and thereafter in its impugned
judgment has observed as follows:-

"Having perused Section 407 Cr.P.C. and Article
227 and 235, I have no hesitation to hold that this Court E
either in the administration side i:Jr in the judicial side has
absolute jurisdiction to transfer any criminal cases
pending before one competent Court to be heard and
decided by another Court within the jurisdiction of this
Court. This Court in its administrative power can issue
direction that cases of particular nature shall be heard by F
particular court having jurisdiction."

In view of what is stated earlier, we have no reason to take
a view different from the one taken by the High Court.
G
21. Both the Special Leave Petitions (Crl.) are, therefore,
dismissed.

MADAN B. LOKUR, J .. 1. While I endorse the views of

H
\
\ \ I

286 SUPREME COURT REPORTS [2013) 14 's,c.R. \
'
A my learned Brother Gokhale, I have thought it appropriat~ to
separately express my opinion in the matter.
.:/ _1
2. The facts of the case have been succ'inctly brought out
by my learned Brother and it is not necessary to repeat them.
; '
B Validity of the notification of transfer
I~
3. The notification authorizing the Special Judge to'
dispose of cases under the Foreign Exchange Management
Act, 1999 and thereby effectively transferring the petitioners'
c case pending before the Magistrate to the Special Judge is ·
said to be unlawful since the transfer is to a court that has no
jurisdiction to try the offence.

4. Part II of the First Schedule to the Code of Criminal
Procedure, 1973 (for short the Code) provides that for an
D offence punishable with imprisonment for three years and
upwards but not more than seven years, the case would be
triable by a Magistrate of the first class. Section 56 of the
Foreign Exchange Regulation Act, 1973 (for short the FE~A)
. now repealed by the Foreign Exchange Management Act,
E 1999 provides, inter alia, that for a violation of its provisions,
. ·the maximum punishment would be imprisonment which may
extend to seven years and with fine. Therefore, effectively
transferring the petitioners' case to a Special Judge (of the
rank of a Sessions Judge, Additional Sessions Judge or
F Assistant Sessions Judge) functioning under the Criminal Law
Amendment Act, 1952 (for short the CLA Act) meant its trial
by a court that lacked jurisdiction over the subject matter. In
support of this contention, great reliance was placed on some
· passages in AR. Antu/ay v. R.S. Nayak, (1988) 2 SCC 602.
G
5. The question
.
in .Antulay (to the extent relevant) was, .. , I
whether this Court could have transferred the case against
Antulay from the Special Judge appointed under the Criminal
Law Amendment Act, 1952 to the High Court. (See R.S. Nayak
H v. A.R. Antulay, (1984) 2 sec 183). This Court answered the
KAMLESH KUMAR v. STATE OF JHARKHAND 287
[MADAN B. LOKUR, J.]
I
question in the negative and three principal reasons, relevant A
to the present case, were given for this conclusion.

6. Firstly, it was noted that Section 7 of the CLA Act gave
exclusive jurisdiction to the Special Judge to try the offences
under sub-section (1) of Section 6 of the CLA Act. Secti9n 7
8
of CLA Act reads as follows:-

"Cases triable by Special Judges: - (1) Notwithstanding
ar:iything contained in the Code of Criminal Procedure.
1898 (5of1898), or in any other law th~ offences specified
in sub-section (1) of Section 6 shall be triable by Special C
Judges only.

(2) Every offence specified in sub-section (1) of Section
6 shall be tried by the Special Judge for the area. within
which it was committed, or where there are more Special 0
Judges than one for such area, by such one of them as
may be specified in this behalf by the State Government.
(3) When trying any case, a Special Judge may also t!Y
any offence other than an offence specified in Section 6
with which the accused may, under the Code of Criminal E
Procedure, 1898 (5of1898), be charged at the same trial."

7. This Court noted that since it is only the Special Judge
who could try offences under Section 6 of CLA Act, the case
against Antulay could not have been transferred to" the High F
Court. It was noted that the trial by a Special Judge is a sine
·qua non for the trial of offences· under Section. 6 of CLA Act
and even this Court could not pass an order not authorized by
law.

8. Secondly, Section 7(1) of CLA Act provides for trial of. G
the case by the Special Judge notwithstanding anything
contained in the Code. Therefore, the statutory power available ·
to this Court to transfer cases under Section 406 of the Code
was statutorily taken away. Additionally, Section 406 of the
H
288 SUPREME.COURT REPORTS [2013) 14 S.C.R.

A Code only enabled this Court to transfer cases and appeals
from one High Court to another High Court or from one criminal
court subordinate to one High Court to another criminal court
of equal or superior jurisdiction subordinate to another High
Court. Section 406 of the Code did not empower this Court to
B transfer a case from the Special Judge under the CLA Act to
the High Court and even if it did, that power was taken away
by the CLA Act. Section 406 of the Code reads as follows:-

"406. Power of Supreme Court to transfer cases and
appeals:- (1) Whenever it is made to appear to the
c Supreme Court that an order under this section is
expedient for the ends of justice, it may direct that any
particular case or appeal be transferred from one High
Court to another High Court or from a Criminal Court
subordinate to one High Court to another Criminal Court
D of equal or superior jurisdiction subordipate to another High
Court.

(2) The Supreme Court may act under this section only on
the application ofthe Attorney-General of India or of a partly
E interested, and every such application shall be made by
motion, which shall, except when the applicant is the
Attorney-General of India or the Advocate-General of the
State, be supported by affidavit or affirmation.

(3) Where any application for the ex~rcise of the powers
F conferred by this section is dismissed, the Supreme Court
may, if it is of opinion that the application was frivolous or
vexatious, order the applicant to pay by way of
compensation to any person who has opposed the
application such sum not exceeding one thousand rupees
G as it may consider appropriate in the circumstances of the
case."

9. The third reason related to the power of transfer
available to this Court under Article 142 of the Constitution. In
H
KAMLESH KUMAR v. STATE OF JHARKHAND 289
[MADAN B. LOKUR, J.]
this context, reference was made to a Constitution Bench A
decision of this Court in Prem Chand Garg v. Excise
Commissioner, 1963 Supp (1) SCR 885 wherein it was
observed that:

"The powers of this Court are no doubt very wide and they B
are intended to be and will always be exercised in the
interest of justice. But that is not to say that an order can
be made by this Court which is inconsistent with the
fundamental rights guaranteed by Part Ill of the
Constitution. An order which -this Court can make in order C
to do complete justice between the parties, must not only
be consistent with the fundamental rights guaranteed by
the Constitution, but it cannot even be inconsistent with the
substantive provisions of the relevant statutory laws."

10. Since the order of this Court transferring the case from D
the Special Judge to the High Court was contrary to the statutory
law and (as held in a later part in Antulay) contrary to Article
14 and Article 19 of the Constitution, the order of transfer was
liable to be set aside.
E
11. In this context, this Court also noted that the power to
create or enlarge jurisdiction is legislative in character and no
court, whether superior or inferior or both combined, could
enlarge the jurisdiction of a court. On this ·basis, inter a/ia, this
Court concluded that the transfer of Antulay's case from the
Special Judge to the High Court was erroneous in law.
F

12. Antulay subsequently came up for consideration in
Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392. In
paragraph 14 of the Report, it was noted that the express
language of Section 7(1) of the CLA Act, took away the right G
of transfer of cases contained in the Code to any other court
which was not a Special Court and that this was notwithstanding
anything contained in Section 406 and Section 407 of the
Code. This is what was said in this regard:
H
290 SUPREME COURT REPORTS [2013] 14 S.C.R.

A "Coming now to A.R. Antulay case we find that the
principles of law laid down in the majority judgment, to
which Mr. Jethmalani drew our attention have no manner
of application herein. There questions arose as to whether
(1) the High Court could transfer a case triable according
B to Criminal Law Amendment Act, 1952 ("1952 Act" for
short) by a Special Court constituted thereunder to another
court, which was not a Special Court and (ii) the earlier
order of the Supreme Court transferring the case pending
before the Special Court to the High Court was valid and
c proper. In answering both the questions in the negative the
learned Judges, expressing the majority view, observed
that (1) Section 7(1) of the 1952 Act created a condition
which was sine qua non for the trial of offences under
Section 6(1) of the said Act. The condition was that
notwithstanding anything contained in the Code of
D
Criminal Procedure or any other law the said offence shall
be triable by Special Judges only. By express terms
therefore it took away the right of transfer of cases
contained in the Code to any other court which was not a
Special Court and this was notwithstanding anything
E contained in Sections 406 and 407 of the Code and (ii)
the earlier order of the Supreme Court transferring the
case to the High Court was not authorised by law, namely,
Section 7(1) of the 1952 Act and the Supreme Court, by
its direction, could not confer jurisdiction on the High Court
F of Bombay to try any case for which it did not possess
such jurisdiction under the scheme of the 1952 Act."

13. In. so far as the present case is concerned, it is
apparent from a reading of Section 56 of the FERA as· also
G Section 61 of the FERA that exclusive jurisdiction has not been
conferred on the Magistrate to try cases relating to a violation
of the provisions of the FERA. Absent jurisdictional exclusivity,
the principle of law laid down in Antulay is not -applicable and
the Special Judge GOUid have been conferred jurisdiction to try
H the case against the petitioners.
KAMLESH KUMAR v. STATE OF JHARKHAND 291
[MADAN B. LOKUR, J.]
Right of appeal A

14. It was contended that assuming that at law the case
could validly have been transferred to the Special Judge, the
petitioners are seriously prejudiced in as much as their right of
appeal from the decision of a Magistrate to a Sessions Judge
8
is taken away. Due to this prejudicial action, which was taken
by the High Court without hearing the petitioners, the notification
conferring power on the Special Judge to try the case should
be struck down.

15. The right of appeal available to the petitioners in the C
present case is not taken away by transferring the case from
the Magistrate to the Special Judge. The petitioners continue
to have the right to appeal, but it is only the forum that has
changed. They can now prefer an appeal from the order of the
Special Judge to the High Court. Therefore, it is not as if the D
petitioners are denuded of any right to agitate their cause in a
superior forum by the transfer of the case to the SpeCial Judge.

16. It is now well settled that a litigant has neither a right
to appeal to a particular forum nor to insist on a particular E
procedure being followed in his case. This was settled way
back in Rao Shiv Bahadur. Singh v. State of Vindhya Pradesh,
1953 SCR 118 wherein a Constitution Bench of this Court held:

"A person accused of the commission of an offence has
no fundamental right to trial by. a particular court or by a F
particular pr.ocedure, except insofar as any constitutional
· objection by way of discrimination or the violation of any
other fundamental right may be involved."

17. This dictum was followed in Union of India v. Sukumar G
Pyne, AIR 1966 SC 1206.

18. Similarly, In Maria Cristina De Souza Sadder v. Amria
Zurana Pereira Pinto, (1979) 1 sec 92 it was held somewhat
more elaborately:
H
292 SUPREME COURT REPORTS [2013) 14 S.C.R.

A "It is no doubt well-settled that the right of appeal is a
substantive right and it gets vested in a litigant no sooner
the /is is commenced in the Court of the first instance, and
such right or any remedy in respect thereof will not be
affected by any repeal of the enactment conferring such
B right unless the repealing enactment either expressly or by
necessary implication takes away such right or remedy in
respect thereof........ This position, has also been settled
by the decisions of the Privy Council and this Court (vide
Colonial Sugar Refining Company Ltd. v. Irving, [1905]
c AC 369 and Garikapatti Veeraya v. N. Subblah
Choudhury, 1957 SCR 488 but the forum where such
appeal can be lodged is indubitably a procedural matter
and, therefore, the appeal, the right to which has ari~en
under a repealed Act, will have to be lodged in a forum
provided for by the repealing Act."
D
19. In T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177 it was
observed in paragraph 17 of the Report that a person accused
of the commission of an offence has no right to trial by a
particular procedure. This view was followed in M/s Rai
E. Bahadur Seth Shreeram Durgaprasad v. Director of
Enforcement, (1987) 3 SCC 27.

20. Therefore, it cannot be seriously urged that the
petitioners were prejudiced by a change of the appellate forum.

F Procedure for transfer:
21. Was the transfer of the case by the High Court at all
permissible in law without following the procedure laid down in
Section 407 of the Code?
G
22. A similar question came up for consideration in Ranbir
Yadav and this Court noted the duality of power in the High
Court. It was observed that the High Court has the judicial
power of transfer of a case from one court to another under
H
KAMLESH KUMAR v. STATE OF JHARKHAND 293
[MADAN B. LOKUR, J.]
Section 407 of the Code. It also has the administrative power A
to transfer a case from one court to another under Article 227
of the Constitution.

23. In the context of Article 227 of the Constitution, this
Court observed in paragraph 12 of Ranbir Yadav that the High
B
Court has superintendence over all courts and tribunals
throughout the territories in relation to which it exercises
jurisdiction and that in its plenary administrative power, the High
Court could transfer a case from one court to another. It was
further held that so long as the power is exercised for
administrative exigency, without impinging upon or prejudicially C
affecting the rights and interests of the parties to any judicial
proceeding, there is no reason to hold that administrative
powers must yield to judicial powers simply because in a given
circumstance they coexist.
D
24. In the present case, the High Court could have
exercised its judicial power of transfer under Section 407 of the
Code (if called upon to do so) and it could also have exercised
its administrative power of transfer under Article 227 of the
Constitution, which it did, as is evident from the letter dated 6th E
May 2002 issued by the Registrar General of the High Court
of Jharkhand to the Secretary to the Government, Law (Judi.)
Department, Government of Jharkhand. The fact that for an
administrative exigency, the High Court decided to exercise its
plenary administrative power does not per se lead to the F
conclusion that the transfer of the case from the Magistrate to
the Special Judge was unlawful. The legality of the action cannot
be called in question in this case since no prejudice has been
caused to the petitioners by such a transfer.

Right of revision G

25. Is the petitioners' right of revision taken away if the
case is transferred from the Magistrate to the Special Judge?

26. This question proceeds on the assumption that there H
294 SUPREME COURT REPORTS [2013] 14 S.C.R.

A is a right of revision. A Constitution Bench. of this Court in
Pranab Kumar Mitra v. State of West Bengal 1959(1) Suppl.
SCR 63 set the "right" issue at rest several decades ago. It was
held that the power to revise an order is a discretionary power
which is to be exercised in ;:iid of justice and the exercise of
B that power will depend on· the facts and circumstances of a
given case. It was held: .

"The revisional powers of the High Court vested in it by
Section 439 of the Code, read with Section 435, do not
create any right in the litigant, but only conserve the power
c of the High Court to see that justice is.done in accordance
with the recognized rules of criminal jurisprudence, and that
s•Jbordinate Criminal Courts do not exceed their
jurisdiction, or abuse their powers yested in them by the
Code."
.-
~D
27. In Aka/u Ahir v. Ramdeo Ram, (1973) 2 SCC 583 this
Court once again adverted to the power of revision invested in
a superior Court and described it as an "extraordinary
discretionary power" to set right grave injustice. Clearly,
E therefore, it cannot be said that a litigant has a "right" to have
an adverse order revised by a superior court. On the contrary,
if there is any "right" to revise, it is invested in the superior court.

28. While the revisional power of a superior court actually
enables it to correct a grave error, the existence of that power
F does not confer any corresponding right on a litigant. This is
the· reason why, in a given case, a superior court may decline
to exercise its power of revision, if the facts and circumstances
of the case do not warrant the exercise of its discretion. This
is also the reason why it is felicitously stated that a revision is
G not a right but only a "procedural facility" available to a party. If
the matter is looked at in this light, the transfer of a case from
a Magistrate to a Special Judge does not take away this
procedural facility available to the petitioners. It only changes
the forum and as already held above, the petitioners have no
H
KAMLESH KUMAR v. STATE OF JHARKHAND 295
[MADAN B. LOKUR, J.]
right to choose the forum in which to file an appeal or move a A
petition for revising an interlocutory order.

29. Reliance was placed by learned counsel for the
petitioners on a Division Bench decision of the Delhi High Court
in A.S. lmpex Ltd. v. Delhi High Court, 107 (2003) DLT 734. B
This reliance is not only misplaced but, in my opinion, that
decision should be overruled as not laying down the correct law.

30. In th.at case, the High Court administratively decided
to transfer cases filed under Section 138 of the Negotiable
Instruments Act, 1881 on or before 31st December 2001 and C
pending before the Magistrates to the Additional Sessions
Judges. A notification for transfer of cases was accordingly
issued and this was struck down by the Delhi High Court by,
inter a/ia, relying on the law laid down in Antulay. As already
noted above, the law laid down in Antu/ay has limited D
application and is not relevant to cases such as the one we are
dealing with. This was clearly explained in Ranbir Yadav. but
the Delhi High Court ignored the observations of this Court
without much ado by holding: "In that case the Court transferred
the case from the Court of one Magistrate to the Court of another E
Magistrate for the reason that there was shortage of
accommodation in the first Court. That is not the case in hand.
It was not a case where the jurisdiction was transferred from
the Court of Magistrate to the Court of Sessions." The Delhi
High Court also proceeded on an erroneous basis that the F
exercise of plenary administrative power available to the High
Court to transfer cases meant the bypassing or circumventing
of statutory provisions empowering Magistrates to try cases
under Section 138 of the Negotiable Instruments Act, 1881 and
conferring that jurisdiction on Additional Sessions Judges. The G
High Court did not correctly appreciate the power available to
a High Court under Article 227 of the Constitution.

31. The error in A. S. lmpex was correctly understood by
the Division Bench of the Delhi High Court in Mahender Singh
H
I

296 SUPREME COURT REPORTS [2013] 14 S.C.R.

A v. High Court of Delhi, {2009) 151 Comp Cas 485 (Delhi) and
in N.G. Sheth v. C.B.I., 151 (2008) DLT 89. The Division Bench
in both cases took a view different from that in A.S. tmpex ..
However, both decisions having been rendered by Division
Benches, A. S. lmpex, could not be overruled. Therefore, I
B complete the formality and overrule A. S. lmpex since it does
not lay down the correct law in this regard.
32. For the reasons abovementioned, the Special Leave
Petitions are dismissed. · ·
C Bibhuti Bhushan Bose SLPs dismissed.