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PETITIONER: A.R. ANTULAY

       Vs.

RESPONDENT: R.S. NAYAK & ANR.

DATE OF JUDGMENT29/04/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S. VENKATACHALLIAH, M.N. (J) VENKATACHALLIAH, M.N. (J) MISRA RANGNATH OZA, G.L. (J) RAY, B.C. (J)

CITATION:  1988 AIR 1531            1988 SCR  Supl. (1)   1  1988 SCC  (2) 602        JT 1988 (2)   325  CITATOR INFO :  F          1989 SC1335  (22,23)  D          1990 SC 535  (3)  R          1990 SC1480  (55)  R          1990 SC1737  (6)  R          1990 SC1828  (16)  RF         1991 SC 101  (66)  E&D        1991 SC 818  (30)  RF         1991 SC 884  (16)  D          1991 SC2176  (51)  RF         1992 SC 248  (41,42,43)  RF&E       1992 SC 522  (23)  RF         1992 SC 604  (140,143)  R          1992 SC1277  (25)  RF         1992 SC1701  (9,10,58)

ACT:      Constitution of  India, 1950:  Articles 13,  14, 21, 32 Prosecution of appellant for offences under sections 161 and 165 I.P.C.-Trial  under Criminal  Law Amendment Act, 1952 to be held  by Special Judge only-Supreme Court in its judgment directing trial  to be  held by High Court Judge-Validity of Supreme Court  Judgment-Whether infringement  of fundamental right of  accused involved-Whether  procedure established by law  violated-Power   to  create  or  enlarge  jurisdiction- Legislative in character.      Articles 32,  134, 136, 737, 139, 141 and 142-Powers of review-Nature and  scope of-Whether Supreme Court can review its directions  if they result in deprivation of fundamental rights of  a citizen-Whether Supreme Court can issue writ of certiorari to  quash judicial order passed by another Bench- Whether a  larger Bench can overrule or recall a decision of a smaller Bench.      Articles 140,  141, 142  and 145: Jurisdiction-Want of- Can be  established only by a superior court-No decision can be impeached  collatterally by  any inferior  court-Superior court can  always correct  errors by  petition or  ex debito justitiae Judgments per incuriam-Effect of.      Criminal Law  (Amendment) Act,  1952: Sections  6 &  7- offences under  Act to  be tried only by Special Judge-order

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of Supreme  Court transferring  and directing  trial by High Court Judge-Whether  legally authorised-Non-substante clause in s.7(1)-Effect of.      Criminal Procedure Code, 1973: Sections 374, 406 & 407- Transfer of  case-Power of transfer postulates that Court to which transfer  or withdrawal  is. sought  is  competent  to exercise jurisdiction  over  case-Intra  state  transfer  is within jurisdiction of the appropriate High Court. 2      Practice and  Procedure:  Judgment  of  Supreme  Court- Directions issued  in proceedings  inter partes-Found bad in law or  violative of  Articles 14 and 21 of the Constitution and  principles  of  natural  justice  Whether  immune  from correction even though they cause prejudice and do injury.      Criminal Trial-Criminal  Procedure Code, 1973-sec. 223- Whether an  accused can  demand as  of a  right  trial  with co-accused.      lnterpretation of  statutes-Words to  be  given  normal meaning   with   reference   to   context-Golden   rule   of interpretation-When to be resorted to.      Legal Maxims:  Actus curiae  neminem gravabid-Coram non judice-Per   curiam-Ex    debito    justitiae-Nunc-Pro-tunc- Applicability of.

HEADNOTE:      The appellant  was the  Chief Minister  of  Maharashtra between June  9, 1980 and January 12, 1982, when he resigned that office  in deference to the judgment of High Court in a writ petition filed against him, but continued as an MLA.      On August  9, 1982,  respondent No.  1, a  member of  a political party  filed a  complaint before  a Special  Judge against the  appellant and others for offences under ss. 161 and 165  of the  Indian Penal  Code and s. 5 of the Criminal Law Amendment  Act, 1952 and also under ss. 384 and 420 read with ss. 109 and 120B of the Indian Penal Code.      The Special  Judge issued  process  to  the  appellant. Later, the  Special Judge  over-ruled the  objection of  the appellant to  take cognizance  of the  offences on a private complaint,  and   to  issue   process,  in  the  absence  of notification under  s. 7(2)  of the  Criminal Law  Amendment Act, 1952,  specifying as  to which  of  the  three  special Judges of the area should try such cases.      Against  this,   the   appellant   filed   a   revision application  in   the  High   Court,  which   dismissed   it subsequently. The appellant’s Special Leave Petition against this was  dismissed by the Supreme Court which held that the complaint filed by respondent No. 1 was clearly maintainable and cognizance was properly taken of it.      During the  pendency of the revision application in the High Court,  the State Government notified the Special Judge to try the off- 3 ences specified  under s.  6(1) of  the  Act  and  appointed another Special Judge, who discharged the appellant, holding that a  member of  the Legislative  Assembly  was  a  public servant and  there was no valid sanction for prosecuting the appellant. Against this order of discharge. respondent No. 1 filed a  Criminal Revision  Application in  the High  Court, which was subsequently withdrawn to this Court.      On an  appeal filed  by respondent No. 1 directly under Article  136  of  the  Constitution  against  the  order  of discharge, the  Supreme Court  held  on  16.2.1984,  that  a member of the Legislative Assembly was not a public servant,

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and set  aside the  order of  the Special  judge. The  Court observed that  though nearly 2 1/2 years had rolled by since prosecution against the accused, who was Chief Minister of a State, was  launched and  his character  and integrity  came under cloud, the case had not moved an inch further and that an expeditious  trial was  primarily in  the interest of the accused and  mandate of Article 21. It further observed that expeditious disposal  of a criminal case was in the interest of both  the prosecution and the accused. It, therefore, suo motu withdrew  this  special  case  and  another  one  filed against the appellant by another person and transferred them to the  High Court, with the request to the Chief Justice to assign these two cases to a sitting Judge of the High Court, who should  proceed to  expeditiously dispose  of the cases, preferably by holding trial from day to day.      Pursuant to the directions of this Court dated February 16, 1984  the Chief  Justice of  the High Court assigned the cases to  one of  the Judges  of that  Court. The  appellant appeared before  him and  raised an  objection that the case could be  tried only  by a  Special Judge  appointed by  the Government under  the 1952  Act. The Judge rejected this and other objections  holding that  he was bound by the order of the Supreme Court .      Special Leave  Petitions as  well as  a  writ  petition filed by  the appellant  against the aforesaid decision were dismissed by  this Court on April 17, 1984, holding that the Judge was perfectly justified, and indeed it was his duty to follow the  decision of this Court which was binding on him. It also  observed that  the writ  petition  challenging  the validity of  the order and judgment of this Court as nullity or  otherwise   could  not  be  entertained,  and  that  the dismissal of  the writ  petition  would  not  prejudice  the petitioner’s  right   to  approach   this  Court,   with  an appropriate review  petition or any other application, which he may be entitled to in law. 4      Thereafter,  the  cases  were  transferred  to  another Special Judge,  who framed  21 charges and declined to frame 22 other  charges proposed  by respondent  No. 1. This Court allowed respondent  No.1‘s appeal by special leave except in regard  to  three  draft  charges  under  s.  384  IPC,  and requested the  High Court  to nominate  another Judge to try the cases.      The Judge,  to whom  the cases were transferred, framed 79 charges  against the  appellant, and  refused to  proceed against the other named conspirators.      Against the  aforesaid order,  the  appellant  filed  a Special Leave  Petition before  this Court  questioning  the jurisdiction of  the  Special  Judge  to  try  the  case  in violation of the appellant’s fundamental rights conferred by Articles 14  and 21  and the  provisions of the Criminal Law Amendment Act  of 1952.  The appellant  also filed a Special Leave Petition  against the  decision of  the Judge, holding that none  of the  79 charges  framed  against  the  accused required sanction  under s.  197(1) of  the Cr.  P.C., and a writ petition  challenging a  portion of  s. 197(1) as ultra vires Articles 14 and 21 of the Constitution.      This Court  granted special  leave in the Special Leave Petition questioning  the jurisdiction  of the Special Judge to try  the case  and stayed further proceedings in the High Court. It  also issued  notice in  the other  Special  Leave Petition and  the writ  petition, and  directed these  to be tagged on to the appeal.      An application filed by respondent No. 1 for revocation of the  Special Leave  was  dismissed  and  the  appeal  was

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referred to a Bench of seven Judges. The other Special Leave Petition and  the writ  petition were  delinked, to be heard after the disposal of the appeal.      In the appeal, two questions arose, namely, (1) whether the directions  given by  this Court on 16th February, 1984, withdrawing the  special  cases  pending  in  the  Court  of Special Judge  and transferring  the same  to the High Court with the  request to the Chief Justice to assign these cases to a  sitting Judge  of that High Court in breach of s. 7(1) of the  Criminal Law Amendment Act, 1952 which mandated that the offences,  as in  this case,  should be  tried only by a Special Judge,  thereby denying at least one right of appeal to the  appellant was violative of Articles 14 and 21 of the Constitution and whether such direction were at all valid or legal and  (2) if  such directions  were not at all valid or legal in  view of  the Court’s  order  of  April  17,  1984, whether the present 5 appeal was sustainable or the grounds therein justiciable in these  proceedings.   In  other   words,  whether  the  said directions in  a proceeding  inter parties were binding even if bad  in law  or violative  of Articles  14 and  21 of the Constitution and  as such,  immune from  correction by  this Court even though they caused prejudice and injury.      Allowing the appeal, and setting aside and quashing all the proceedings subsequent to the directions of the Court on 16.2.1984 and  directing that  the trial  should proceed  in accordance with law, i.e. Criminal Law Amendment Act, 1952. ^      HELD:      Majority: Sabyasachi  Mukharji, Oza  and Natarajan, JJ. Per Sabyasachi Mukharji. J:      1. Section 7(1) of the Criminal Law Amendment Act, 1952 creates a  condition which  is sine qua non for the trial of offences under  s. 6(1)  of the  said Act.  The condition is that notwithstanding  anything  contained  in  the  Code  of Criminal Procedure or any other law, the said offences shall be triable  by Special  Judges only.  The offences specified under s. 6(1) of the 1952 Act are those punishable under ss. 161, 162,  163, 164 and 165A of the Indian Penal Code and s. 5 of the Prevention of Corruption Act, 1947. [44B-C,49H,A]      Gurcharan Das  Chadha v.  State of  Rajasthan, [1966] 2 S.C.R. 678 referred to.      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 to try any case, when it did not possess such jurisdiction under the scheme of the 1952 Act. [49A-B]      Kiran Singh  and others  v.  Chaman  Paswan  &  Others, [1955] 1 SCR 117 at 121 and M. L. Sethi v. R. P. Kapur, 1973 1 SCR 697 relied on.      2.1 The  power to  create or  enlarge  jurisdiction  is legislative in  character, so  also the  power to  confer  a right  of  appeal  or  to  take  away  a  right  of  appeal. Parliament alone  can  do  it  by  law.  No  Court,  whether superior or  inferior  or  both  combined  can  enlarge  the jurisdiction of  the Court  or divest a person of his rights of revision and appeal. [50E] 6      M.L. Sethi  v. R.P.  Kapur, [1973]  1 SCR  697 and Raja Soap Factory v. S. P. Shantara;, 1965 2 SCR 800 referred to.      Halsbury’s Laws of England, 4th Vol.10 page at para 720 and Ammon  Rubinstein’s Jurisdiction  and Illegality, [1965] Edn. pp. 16-50 referred to.

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    2.2 Want  of jurisdiction  can be established solely by superior court and in practice, no decision can be impeached collaterally by  any interior  court, but the superior court can always  correct its  own error  brought  to  its  notice either by way of petition or ex debito justitiae.[50G]      Rubinstein’s  jurisdiction  and  illegality(1965  Edn.) referred to.      2.3 The  distinction between  an  error  which  entails absence  of  jurisdiction  and  an  error  made  within  the jurisdiction is  so fine  that it  is rapidly  being eroded. [69H.70A]      Anismatic Ltd.  v. Foreign  Compensation  Commissioner, [1969] 1 All E.R.208 at 241 referred to.      This is  not a  case of  collateral attack  on judicial proceedings; it  is a  case where  the Court having no court superior to it rectifies its own order. [69]      The impugned directions were void because power was not there for  this Court to transfer a proceeding under the Act of 1952 from one Special Judge to the High Court. [69G]      The singling  out of the appellant for a speedier trial by the High Court for an offence which the High Court had no jurisdiction to  try under  the Act of 1952 was unwarranted, unprecedented and  directions given  by this  Court for  the said purposes  were not warranted. When that fact is brought to the  notice of  the court,  it must remedy the situation. [51D-E]      2.4 In  rectifying the  error, no  personal inhibitions should debar  this Court  because no person should suffer by reason of  any mistake  of this  Court. Here  no rule of res judicata would apply to prevent this Court from entertaining the grievance and giving appropriate directions.[51E-F]      Soni Vrajlal  Jethalal v.  Soni Jadavji  and Govindji & Ors.. AIR 1972 Gujarat 148 approved. 7      In the  earlier judgment,  the points for setting aside the decision  did not  include the question of withdrawal of the case  from the  Court of  Special Judge  to the  Supreme Court and transfer of it to the High Court. Unless a plea in question is taken it cannot operate as res judicata.[62G-H]      Shivshankar Prasad  Shah and  others  v  Baikunth  Nath Singh and  others, [1969]  1 S.C.C.  718; Bikan  Mahuri  and others v.  Mst. Bibi  Walian and  others, A.I.R.  1939 Patna 633; S.L.  Kapoor v.  Jagmohan and  others, [1981]  1 S.C.C. 746; Maneka Gandhi v. Union of India, [1978] 2 S.C.R. 621 at pages 674-681  and Bengal  Immunity Co. Ltd. v. The State of Bihar and others, [1955] 2 SCR 603 and 623 referred to.      3.1 Section  407 of  the Criminal  Procedure  Code  was subject to  over-riding mandate  of s.  7(1) of the 1952 Act and, hence  it does  not permit the High Court to withdraw a case  for   trial  to  itself  from  the  Court  of  Special Judge.[60D-E]      3.2 Article  134(1)(b) of  the  Constitution  does  not recognise in  every High  Court power  to withdraw for trial cases from  any Court subordinate to its authority. At least this Article cannot be construed to mean that where power to withdraw is  restricted, it  can be  widened  by  virtue  of Article 134(1)(b) of the Constitution. [67B-C]      3.3 Where  by a  specific clause  of a specific statute the power  is given  for trial by the Special Judge only and transfer can  be from  one such  Judge  to  another  Special Judge, there  is no  warrant to  suggest that the High Court has power to transfer Such a case from a Judge under s. 6 of the Act  of 1952 to itself. It is not a case of exclusion of the superior Courts. [67C]      In the facts of the instant case, the criminal revision

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application which  was pending before the High Court even if it was  deemed to be transferred to this Court under Article 139A of  the Constitution,  it would  not have  vested  this Court with  power larger than what is contained in s. 407 of Criminal Procedure  Code.  Under  s.  407  of  the  Criminal Procedure Code read with the Criminal Law Amendment Act, the High Court  could not  transfer to  itself proceedings under ss. 6 and 7 of the said Act. This Court, by transferring the proceedings  tb  itself,  could  not  have  acquired  larger jurisdiction. The  fact that  the objection  was not  raised before this  Court gave  directions on  16th February,  1984 cannot amount to any waiver. [161F-G] 8      Ledgard  v.  Bull,  131  A  134,  Meenakshi  Naidoo  v. Subramaniya A Sastri, 141 A 160 referred to.      3.4 The  Parliament did  not grant  to  the  Court  the jurisdiction to  transfer a case to the High Court. However, as  the   superior  Court   is  deemed  to  have  a  general jurisdiction, the  law presumes  that the Court acted within jurisdiction. [60G]      In the  instant case,  the presumption cannot be taken, firstly,  because  the  question  of  jurisdiction  was  not agitated before  the Court;  secondly, these directions were given per incuriam and thirdly, the superior Court alone can set aside an error in its directions when attention is drawn to that  error. This  view is  warranted only because of the peculiar facts  and circumstances  of the present case. Here the trial  of a  citizen in  a Special  Court under  special jurisdiction is  involved; hence  the liberty of the subject is involved. [60H,61A-B]      Kuchenmeister  v.  Home  office,  [1958]  1  Q.B.  496; Attorney General  v. Herman  James Sillam,  [1864] 10 H.L.C. 703 and Issacs v.Robertson, [1984] 3 A.I.R. 140 referred to.      Jurisdiction and Illegality by Amnon Rubinstein, [1965] Edn. referred to.      4.1 Per incuriam are those decisions given in ignorance or forget  fulness of  some inconsistent statutory provision or 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. If a decision is given per in curiam, the Court can ignore it. [52A-B, 53G]      Morelle v.  Wakeling, [1955]  1 ALL  ER 708;  State  of Orissa v. The Titaghur Paper Mills Co. Ltd., [1985] 3 SCR 26 and Bengal  Immunity Co. Ltd. v. State of Bihar [1955] 2 SCR 603, 623 referred to.      In the instant case, when this Court gave directions on 16th February  1984, for  disposal of  the case  against the appellant by  the  High  Court,  it  was  oblivious  of  the relevant provisions of the law and the decision in Anwar Ali Sarkar’s case, which is a binding precedent [51G-H]      4.2 A  Full Bench  or a Constitution Bench decision was binding on  the Constitution Bench because it was a Bench of seven Judges. There is 9 a hierarchy  in this  Court itself  where larger     Benches over-rule smaller  Benches which is the crystallised rule of law. [52E,F]      State of  West Bengal  v. Anwar  Ali Sarkar, [1952] SCR 284; Nattulal v. Radhe Lal, [1975] 1 SCR 127; Union of lndia and Anr. v. KS. Subramaniam, [1977] 1 SCR 87 at p. 92; State of U.P.  v. Ram  Chandra Trivedi,  [1977] 1  SCR 462 at 473; Halsbury’s Laws  of England, 4th Edn. Vol. 26 page 297, para 578 and  page 300,  relevant notes  on 8.11  and 15; Dias on Jurisprudence, 5th  Edn. pages 128 and 130; Young v. Bristol

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Aeroplane Co.  Ltd. [1944] 2 AER 293 at 300; Moore v. Hewitt 1947 2 AER 270 at 272A; Penny v. Mcholas, 1950 2 AER 92A and Javed Ahmed  Abdul Hamid  Pawala v.  State  of  Maharashtra, [1985] 2 SCR 8 referred to.      It  was   manifest  to   the   Bench   that   exclusive jurisdiction created under s. 7(1) of the 1952 Act read with s. 6  of the  said Act,  when brought  to the  notice of the Court, precluded  the exercise  of power under s. 407 of the Code. There  was no  argument, no submission and no decision on this  appeal at  all. There  was no  prayer in the appeal which was  pending before  this Court  for such  directions. [59D-E]      The order  of this  Court was clearly per incuriam. The Court was not called upon to and did not, decide the express limitation on  the power  conferred by  s. 407  of the Code. which includes  offences by public servants mentioned in the 1952 Act  to be  over-ridden in  the  manner  sought  to  be followed as  a consequential  direction of  this Court. This Court did  not have  jurisdiction to  transfer the  case  to itself. That  will be  evident from an analysis of different provisions of the Code as well as the 1952 Act [50C-D]      Therefore, in  view of  the clear provisions of s. 7(2) of  the   Act  of  1952  and  Articles  14  and  21  of  the Constitution these directions were legally wrong. [52C]      4.3 Though  the previous  statute is referred to in the other judgment  delivered on  the same  date, in  connection with other  contentions, s.  7(1) was  not  referred  to  in respect of the impugned directions. Hence these observations were indubitably per incuriam. [66A]      Miliangos v.  George Frank (Textiles) Ltd, [1975] 3 All E.R. 801 at 821 referred to.      5. This  Court is  not powerless  to correct  its error which has the 10 effect of  depriving a citizen of his fundamental rights and more so,  the A  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. [54A-B]      Powers of  review can  be exercised  in a petition file 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 or  any legal right of the petitioner. [54B-C]      The Supreme  Court has the power to review either under Article 137  or suo motu the directions given by this Court. [62E]      Prem Chand Garg v. Excise Commissioner, U.P. Allahabad, [1963] Suppl.1  SCR 885; Naresh Shridhar Mirajkar and others v. State of Maharashtra and another, [1966] 3 S.C.R. 744 and Smt. Ujjam  Bai v.  State of  U.P.,  [1963]  1  S.C.R.  778; Kailash Nath  v. State  of U.P.  AIR 1957  (SC) 790;  P.S.R. Sadhananatham v.  Arunachalam, [1980]  2 S.C.R. 873; Suk Das v. Union  Territory of  Arunachal Pradesh,  [1986] 2  S.C.C. 401; Asrumati  Devi v. Kumar Rupendra Deb Raikot and others, [1953] S.C.R.  1159; Satyadhyan  Ghosal and  others v.  Smt. Deorajin Debi  and another,  [1960] 3  S.C.R. 590;  Sukhrani (dead) by  L.Rs. and  others v.  Hari  Shanker  and  others, [1979] 3  S.C.R. 671  and Bejoy  Gopal  Mukherji  v.  Pratul Chandra Ghose, [1953] S.C.R. 930 referred to.      6. It  is also  well settled that an elementary rule of justice is  that no  party should  suffer by  mistake of the Court. [63B]      Sastri Yagnapurushadji  and others  v. Muldas Bhudardas

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Vaishya and  another, [1966]  3 S.C.R.  242; Jang  Singh  v. Brijlal [1964]  2 S.C.R. 145;Bhajahari Mondal v.The State of West Bengal, [1959] S.C.R. 1276 at 1284-1286 and Asgarali N. Singaporawalle v. The State of Bombay 1957 S.C.R. 678 at 692 referred to.      It was  a mistake  of so  great  a  magnitude  that  it deprives  a   man  by   being  treated  differently  of  his fundamental right  for defending himself in a criminal trial in accordance with law. Therefore, when the attention of the Court is  drawn, the  Court has  always the  power  and  the obligation to  correct it  ex debito justitiae and treat the second application  by its  inherent power,  as a  power  of review to correct the original mistake. [56C-D]      The directions  have been  issued without observing the principle of audi alteram partem.[53D] 11      This  Court   is  not  debarred  from  re-opening  this question and  giving proper  directions and  correcting  the error in the present appeal. [53C]      The appellant  should not  suffer  on  account  of  the direction of  this Court  based upon  an  error  leading  to conferment of jurisdiction. [53B]      7. The  principle of  finality on  which Article 145(e) proceeds applies  to both  judgments and  orders made by the Supreme  Court.   But  directions   given  per  incuriam  in violation  of  certain  constitutional  limitations  and  in derogation of  the principles  of natural justice can always be remedied by the court ex debite justitiae. [68F-G]      In the  instant  case,  this  Court  is  correcting  an irregularity committed  by the  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. [69C-D]      Issacs v.  Robertson, [1984]  3 A.E.R. 140 and Re Recal Communications Ltd. Case, [1980] 2 A.E.R. 634 referred to.      8. 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.[59H]      9.1 Four  valuable rights  of the  appellant have  been 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 s. 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,  if           necessary.      The right  of the  appellant under Article 14 regarding equality 12 before  the  law  and  equal  protection  of  law  has  been violated. The  appellant has  also a right not to be singled out for special treatment by a Special Court created for him alone. This  right is  implicit in  the right  to  equality. [60A-C,62A-B]      State of  West Bengal  v. Anwar  Ali Sarkar, [1952] SCR 284 relied on.      The appellant  has a  further right under Article 21 of the Constitution-a  right to  trial by a Special Judge under

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s. 7(1)  of the  1952 Act which is the procedure established by law  made by  the Parliament  and a further right to move the High Court by way of revision or first appeal under s. 9 of the said Act. He has also a right not to suffer any order passed behind  his back by a Court in violation of the basic principles of  natural justice. Directions having been given in this case without hearing the appellant, though the order was passed in the presence of the counsel for the appellant, these are bad. [62B-Dl      It is proper for this Court to act ex debito justitiae, in favour of the fundamental rights of the appellant. [62E]      Nawabkhan Abbas  Khan v. The State of Gujarat, [1974] 3 SCR 427 referred to.      9.2 There was prejudice to the accused in being singled out as a special class of accused for a special dispensation witbout any  room for  any appeal  as of  right and  without power of revision to the High Court. [67G]       Romesh Chandra Arora v. The State, [1960] 1 SCR 924 at 927 distinguished.      9.3 The  trial even  of person  holding  public  office though to  be made  speedily must be done in accordance with the procedure  estab lished  by law.  The provisions of s. 6 read with  s. 7  of  the  Act  of  1952  in  the  facts  and circumstances of  this case  is the procedure established by law, and  any deviation even by a judicial direction will be negation of the rule of law. [68D-E]      By judicial direction, the rights and previliges of the accused have  been curtailed  without any  justification  in law. [ 68B]      State of  West Bengal  v. Anwar  Ali Sarkar, [1952] SCR 284 relied on. 13      Re: Special Courts Bill, [1978] 1979 2 SCR 476 referred to.      9.4 The right of appeal under s. 374 of the Cr. P.C. is confined only  to cases  decided by  the High  Court in  its Letters Patent  jurisdiction which in terms is extraordinary original criminal  jurisdiction’ under  clause 27 of Letters Patent. [63F]      Kavasji Pestonji  Dalal v.  Rustomji Sorabji  Jamadar & Anr., AIR  1949 Bom.  42, Sunil  Chandra Roy  & Anr.  v. The State AIR  1954 Cal.  305; Sasadhar  Acharjya &  Anr. v. Sir Charles Tegart  & Ors.,  [1935] Cal. Weekly Notes1089;People insurance Co.  Ltd. v.  Sardul Singh Caveeshgar & Ors. J AIR 1961 Punj.  87 and  P.P. Front,  New Delhi  v. K.  K  Birla. [1984] Cr. L.J. 545 referred to.      9.5 By the time the Code of Criminal Procedure 1973 was framed, Article 21 had not been interpreted so as to include one right of appeal both on facts and law. [64C]      10. 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   of   interpretation   or   the   mischief   rule   of interpretation. [66C]      Sussex Peerage  Claim, [1844]  11 Cl.  & Fin. 85 at 143 referred to.      Cross: Statutory Interpretation, p. 36.      In view  of the  specific language  used in s. 7 of the 1952 Act,  it is  not  necessary  to  consider  whether  the procedure for  trial by  Special Judges  under the  Code has stood repealed  or not.  The concept  of repeal  may have no application in this case. [66B]      11. No  man is  above the law, but at the same time, 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

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law and not in derogation of it. [71B]      This Court, in its anxiety to facilitate the parties to have a  speedy trial,  gave direction on 16th February, 1984 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. [71B-C] 14      By reason of giving the impugned directions, 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. [71C-D]      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. [71D]      12.1 The  basic fundamentals  of the  administration of justice are  simple. No  man should  suffer because  of  the mistake of  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. If a  man has  been wronged  so long  as it  lies within the human machinery of administration of justice that wrong must be remedied. [72B-C]      12.2 The  maxim "Actus  Curiae Neminem Gravabit"-An act of the  Court shall prejudice no man-is founded upon justice and good  sense and affords a safe and certain guide for the administration of the law. [71E]      Alaxander Rodger  v. The  Comptoir Dlescompte  De Paris Cham Reports, Vol. III 1869-71 p. 465 at 475 referred to.      13. Purity  of public  life  is  one  of  the  cardinal principles which  t. must  be upheld  as a  matter of public policy.  Allegations   of  legal  infractions  and  criminal infractions must  be investigated in accordance with law and procedure established under the Constitution. [73B]      Even if  the accused has been wronged, if he is allowed to be  left in doubt that would cause more serious damage to him. Public  confidence in  public administration should not be eroded  any further.  One wrong  cannot  be  remedied  by another wrong. [73B]      The legal  wrong that  has been  done to  the appellant should be remedied and right should be done. In doing so, no more further  injury should be caused to the public purpose. [73C]      The  impugned   directions  were  in  deprival  of  the Constitutional rights and contrary to the express provisions of the Criminal Law 15 Amendment Act,  1952, in  violation  of  the  principles  of natural justice,  and without precedent in the background of the Act  of 1952.  The directions  definitely  deprived  the appellant of  certain rights  of appeal and revision and his rights under the Constitution. [69F]      Having regard  to the  enormity of  the consequences of the error  to the  appellant and  by reason of the fact that the directions  were given  suo motu, there is nothing which detracts the  power of  the Court  to review its judgment ex debito justitiae in case injustice has been caused. No Court however high  has jurisdiction  to give an order unwarranted by the Constitution. [70A-B]      Ittavira Mathai  v. Varke,P Varkey and others, [1964] 1

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SCR 495 referred to.      Bhatia Cooperative  Housing Society Ltd. v. D.C. Patel, [1953] SCR 185 at 190 distinguished.      Since   this   Court   infringed   the   Constitutional safeguards granted  to a citizen or to an accused, in giving the directions  and injustice  results therefrom, it is just and  proper  for  the  Court  to  rectify  and  recall  that injustice in  the peculiar  facts and  circumstances of this case.  Therefore,   all  the   proceedings  in   the  matter subsequent to  the directions  of this Court on February 16, 1984, are set aside and quashed and the trial should proceed in accordance  with law,  that is  to say,  under the Act of 1952. [70C,73D-E]      R.S. Nayak  v. A.R.  Antulay, [1984]  2 SCR  495;  A.R. Antulay v.  Ramdas Sriniwas  Nayak and another, [1984] 2 SCR 914; Abdul  Rehman Antulay v. Union of India and others etc. [1984] 3  SCR 482 at 483; Kailash Nath v. State of U.P., AIR 1957 SC  790; Sukdas v. Union Territory of Arunachal Pradesh Discretion to  Disobey by  Mortimer R. Kadish and Sanford H. Kadish pages 111 and 112 referred to. Per Ranganath Misra, J. (Concurring)      14. Section  7(1) has  clearly provided  that  offences specified in sub-section (1) of s. 6 shall be triable by the Special Judge  only and  has taken  away the  power  of  the courts established  under the  Code of Criminal Procedure to try those  offences. As  long as s. 7 of the Amending Act of 1952 holds  the field it was not open to any court including the Apex  Court to  act contrary  to s. 7(1) of the Amending Act.[81E-F] 16      State of West Bengal v. Anwar Ali Sarkar, 1952 SC R 284 referred to.      15. The  power to  transfer a  case  conferred  by  the Constitution or  by s. 406 of the Code of Criminal Procedure does not  specifically relate  to the Special Court. Section 406 of  the Code  could 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 because such a  transfer would not contravene the mandate of s. 7(1) of the  Amending Act  of 1952.  While that  may be  so,  the provisions for transfer, do not authorise transfer of a case pending in the court of a Special Judge first to the Supreme Court and  then to  the High Court for trial. This Court did not possess  the power  to transfer the proceedings from the Special Judge to the High Court. [81G-H,82A]      Raja Soap  Factory v. S.P. Santharaj, [1965] 2 SC R 800 referred to.      16.1  It   is  the   settled  position   in  law   that jurisdiction of courts comes solely from the law of the land and cannot be exercised other wise. [77E]      16.2 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. [77G]      17. By  the change  of forum  of trial  the accused has been pre  judiced. By  this process  he misses  a  forum  of appeal because  if the trial was handled by a Special Judge, the first  appeal would  lie to the High Court and a further appeal by special leave could come before this Court. If the matter is  tried by  the High  Court there would be only one forum of  appeal being this Court, whether as of right or by way of special leave. [83H, 84A-B]      18. The transfer was a suo motu direction of the court. Since this  particular aspect  of the  matter had  not  been

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argued and  counsel did  not have an opportunity of pointing out the legal bar against transfer, the Judges of this Court obviously did  not take note of the special provisions In s. 7(1)  of   the  1952   Act.  If   this  position   had  been appropriately placed,  the direction  for transfer  from the court of  exclusive jurisdiction to the High Court would not have been  made by the Constitution Bench. It is appropriate to presume  that this Court never intends to act contrary to law. [82E-F] 17      19. 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 proceedings, the direction of  the Constitution  Bench on  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 he binding on  this Court as well and cannot be interfered with after attaining finality. [84C-D]      20.1 It  is a  well-settled position in law that an act of the court should not injure any of the suitors. [84F]      Alexander Rodger  v. The  Comptori D’Escompte De Paris, [1871] 3 PC 465 referred to.      20.2. Once  it is  found that  the order of transfer by this Court  was not  within jurisdiction by the direction of the transfer  of the  proceedings made  by this  Court,  the appellant should not suffer. [85B]      20.3 This  being the  apex Court,  no litigant  has any opportunity of  approaching any higher forum to question its decisions. 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.  A mistake of the Court can be corrected by the  Court  itself  without  any  fetters.  In  the  present situation, the  Court’s inherent  powers can be exercised to remedy the mistake. [87F,88B-C]      Gujarat v.  Ram Prakash  [1970] 2  SCR  875;  Alexander Rodger v.  The Comptori D’Escompte De Paris, [1871] 3 PC 465 and Krishna  Deo v.  Radha Kissan,  [1953] SCR  136; Debi v. Habib lLR  35 All  331 and  Murtaza v. Yasin. AIR 191 PC 857 referred to.      20.4 The injustice done should be corrected by applying the principle  actus curiae  neminem gravabit, an act of the court shall prejudice no one.[88H]      20.5 To err is human. 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. [89B]      21. If  a mistake is detected and the apex Court is not able to 18 correct it  with a  view to  doing justice for fear of being misunderstood, the  cause of  justice is bound to suffer and for the  apex Court  the apprehension  would not  be a valid consideration. This Court, while administering justice, does not take  into consideration  as to  who is before it. Every litigant is  entitled to  the same  consideration and  if an order is warranted in the interest of justice, the status or influence of the accused cannot stand in the way as a bar to the making of that order. [89F-G]      22. Finality  of the  orders is  the rule. By directing recall of  an order,  the well-settled  propositions of  law would not  be set  at naught. Such a situation may not recur

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in the  ordinary course of judicial functioning and if there be one,  certainly the  Bench before  which it  comes  would appropriately deal  with it. Nn strait jacket formula can be laid down for judicial functioning particularly for the apex Court. The  apprehension that  the decision  to  recall  the earlier 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.  This  Court  is  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. [87H, 90A-B]      23. Under  the Rules of the Court a review petition was not to be heard in Court and was liable to be disposed of by circulation. In  these circumstances, the petition of appeal could not be taken as a review petition. [87E]      24. 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. [85C]      Naresh Chandra  Mirajkar & Ors. v. State of Maharashtra JUDGMENT:      Prem Chand Garg v. Excise Commissioner, U.P., Allahabad 1963 1 SCR 885 referred to.      25. Apart from the fact that the petition of review had to  be   filed  within  30  days-and  here  there  has  been inordinate delay-the  petition for  review had  to be placed before the same Bench and now that two of the learned judges of that Constitution Bench are still available, 19 it must have gone only before a Bench of five with those two learned Judges. [87D-E]      26. 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 rendered 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 this Court  is sitting as a Bench of Seven this Court is not entitled to  reverse the decision of the Constituffon Bench. [89B-C]      27. 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. [89C]      In the  instant case,  the appellant is, therefore, 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. [89D] Per Oza, J. (Supplementing)      28. The  jurisdiction to  try  a  case  could  only  be conferred by  law enacted  by the legislature and this Court could not  confer jurisdiction  if it does not exist in law. [90F]      29. No  doubt a  judgment or  an order  passed by  this Court will  not be  open to  a writ of certiorari even if an

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error is  apparent. But at the same time, there should be no hesitation in  correcting an  error in  exercise of inherent jurisdiction if it comes to the notice of the Court. [90D-E]      In the  instant case,  it is this error which is sought to be  corrected, although  it is being corrected after long lapse of time. [90F] Per Ray,J.(Concurring) 20      30. The Jurisdiction or power to try and decide a cause is conferred  on the  courts by the Law of the Lands enacted by the  Legislature or by the provisions of the Constitution and the  court cannot  confer a jurisdiction on itself which is not  provided in the law and judicial order of this Court is not  Emenable to  a writ of certiorari tor correcting any error in  the judgment.  However, since the act of the court should not  injure any of the suitors, the error in question is sought  to be corrected. after a lapse of more than three years. [90H,91A-B] Per Venkatachaliah, J. (Dissenting)      31.1 The  exclusiveness of  jurisdiction uf the special judge under  s. 7(1) of 1952 Act 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 s. 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. [108D-E]      Thomas v. Collins, 323 (1945) US 516 referred to.      31.2 The  earlier decision  proceeded on a construction of s. 7(1) of the Act and s. 407 of Cr. P.C. This bench does not sit  in appeal  over what  the five Judge Bench said and proclaim how  wrong they  were. This  Bench  is  simply  not entitled to  embark, at a later stage, upon an investigation of the correctness of the very decision. The same bench can, of course, reconsider the matter under Article 137.      32.1 The  expression "jurisdiction"  or  the  power  to determine is a verbal cast of many colours. In the case of a Tribunal, an error of law might become not merely an error m 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. [102C]      32.2. In relation to the powers of superior courts, the familiar  distinction   between  jurisdictional  issues  and adjudicatory issues approts priate to  Tribunals of  limited jurisdiction  has no place. [102A]      32.3 Before a superior court there is no distinction in the  quality   of  the   decision-making-process  respecting jurisdictional questions  on the  one hand  and adjudicatory issues or  issues pertaining  to the  merits, on  the other. [102B] 21      32.4 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.  [102D]      Mallikarjun v.  Narhari, [1900]  27 I.A.  2 10 referred to.

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    Anismatic  Ltd.  v.  Foreign  Compensation  Commission, [1969] 1 All ER 208 distinguished.      32.5 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 all 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   concomitants  of  such  classification  of judicial-errors would be so seriously abused and expanded as to make a mockery of those foundational principles essential to the stability of administration of justice. [102G,103A]      32.6 The  superior court  has jurisdiction to determine its own jurisdiction and an error in that determination does not make it an error of jurisdiction. [103B]      Holdsworth (History of English Law) Vol. 6 page 239 and Rubinstein: Jurisdiction and Illegality referred to.      Re Racal  Communications Ltd.  [1980] 2  All ER 634 and Issac v. Robertson, [1984] 3 All ER 140 referred to.      32.7 Superior  courts apart,  even the  ordinary  civil courts of  the land have jurisdiction to decide questions of their own jurisdiction. [105H]      It  would  be  wholly  erroneous  to  characterise  the directions issued  by the  five Judge  Bench as  a  nullity, amenable to  be ignored  or  so  declared  in  a  collateral attack. [106E]      33. A  judgment, inter-parties,  is final and concludes the parties. [106F]      Re Hastings  (No. 3)  [1969] 1  All ER  698; Daryao  v. State of  UP, [1962] 1 SCR 574; Trilok Chand v. H.B. Munshi, [1969] 2 SCR 824 and 22 Shiv Nandan  Paswan v.  State of Bihar, [ 1987] 1 SCC 288 at 343 relied on      34.1 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 s.  407 is  made by a conscious judicial act  and 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. [114G-H, 115A]      34.2 No  doubt, the  fundamental right under Article 14 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. [114D-F]      34.3 The  five judge bench in the earlier case has held that such a transfer is permissible under law. That decision had assumed  finality. The  appeal to the principle in Anwar Ali’s Sarcar’s  case, in  such a  context would  be  out  of place. [115A]      State of  West Bengal  v. Anwar  Ali Sarkar, [1952] SCR 284 distinguished.

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    35. 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 pronouncements. The argument that a Judge of the High Court may not necessarily possess the statutory- qualifications requisite  for being  appointed as  a Special Judge appears  to be  specious. A  judge of  the High  Court hears appeals  arising from  the decisions  of  the  Special Judge and exercises a jurisdiction which includes powers co- extensive with that of the trial court. [115C-D]      36. The  plea that  transfer of  the case  to the  High Court involves  the elimination  of the appellant’s right of appeal to the High Court 23 which he  would otherwise  have and  that the  appeal  under Article 136  of the  Constitution  as  of  right  cannot  be accepted in  view of s. 374, Cr. P.C. which provides such an appeal, as  of right,  when the  trial is  held by  the High Court. [117A-B]      37. Directions for transfer were issued on 16.2.1984 in the open court in the presence of appellant’s counsel at the time of  pronouncement of  the judgment  and counsel had the right and  the opportunity of making submission to the court as to the permissibility or otherwise of the transfer. After the directions  were pronounced  and before  the  order  was signed, though  there was  opportunity for  the  appellant’s counsel  to   make  submission  in  regard  to  the  alleged illegality or  impropriety of  the directions, appellant did not utilise  the same.  That apart, even after being told by two judicial orders that appellant, if aggrieved, may seek a review, he did not do so. Even the grounds urged in the many subsequent proceedings  appellant took  to get  rid  of  the effect of  the  direction  do  not  appear  to  include  the grievance that  he had no opportunity of being heard. [115F, G-H,116A-B]      Therefore, where  a party  having had an opportunity to raise a  grievance in the earlier proceedings does not do so and makes  it a  technicality later,  he cannot  be heard to complain. [116B]      Rules of  natural justice  embodies fairness in action. By all  standards, they  are great assurances of justice and fairness. But they should not be Pushed to a breaking point. [116F]      R. v.  Secretary of  State  for  Home  Deptt.  ex-parte Mughal, [1973] 3 All ER 796, referred to.      38.1 The circumstance that a decision is reached per- incuriam, merely  serves  to  denude  the  decision  of  its precedent-value. Such  a decision  would not be binding as a judicial precedent.  A co-ordinate  bench can discharge with it and  decline to  follow it.  A larger bench can over-rule such decision.  When a  previous decision is so overruled it does  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  over- turned. 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 over- 24 ruled by a larger-bench, the efficacy and binding nature, of the adjudication  expressed in  the operative  order remains undisturbed interparties. [119B-D]      38.2 Even  if the  earlier decision  of the  five judge bench is  perincuriam the operative part of the order cannot be interfered with in the manner now sought to be done. That apart, the  five judge bench gave its reason. The reason may

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or may  not be sufficient. There is advertence to s. 7(1) of the  1952   Act  and   to  exclusive   jurisdiction  created thereunder. There  is  also  reference  to  s.  407  of  the Criminal Procedure Code. [119D-E]      39.1 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 depend  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. [101D-E]      39.2 However,  motions to  set aside  the judgments are permitted where  a judgment was rendered in ignorance of the fact that  u necessary party had not been served at all, and was wrongly shown as served or in ignorance of the fact that a  necessary-party   had  died   and  the   estate  was  not represented, or  where a judgment was obtained by fraud, and it tended  to prejudice  a non-party,  as  in  the  case  of judgments in-rem  such as  for divorce,  or  jactitation  or probate etc.  even a  person, not  eo-nomine a  party to the proceedings, or where a party has had no notice and a decree is made  against him  in which  case, the  party is  said to become entitled  to relief  ex-debito justitiae, on proof of the fact  that there was no service, since there is no trial at all and the judgment is for default. [110C-F]      Cases of  such frank  failure of  natural  justice  are obvious cases where relief is granted as of right. [111A]      Where a  person is  not actually served out but is held erroneously, to  have  been  served,  he  can  agitate  that grievance only  in that  forum or  in any further proceeding therefrom. [111A]      Issac v. Robertson, [1984] 3 All ER 140 distinguished.      Rajunder Narain  Rae v.  Bijai Govind Singh, 2 MIA 181, referred to. 25      D.M. Gordan:  Actions to  set aside judgment, [1961] 77 Law quarterly Review 358      In the  present case by the order dated 5.4.1984 a five judge bench  set-out, what  according to  it was  the  legal basis and  source of  jurisdiction  to  order  transfer.  On 17.4.1984  appellant’s   writ  petition   challenging   that transfer as  a nullity  was dismissed.  These orders are not which appellant  is entitled  to have  set  aside  ex-debito justitiae by another Bench. [111C-D]      40. 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 un-do the finality  of the  decisions of  Other division  benches. [108H]      41.1 The  power to  alter a  decision by review must be expressly conferred  or necessarily  inferred. The  power of review and  the limitations  on the  power under Article 137 are implict  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 e  that is  already invested. [120F-G]      41.2 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. [109A]      In the  instant case,  the remedy  of the  appellant is recourse to Article 137, no where else. This is both in good

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sense and good law. [120G]      Judicial proceedings  of this  Court are not subject to writ jurisdiction thereof. [118H]      Naresh Sridhar  Mirajkar & Ors. v. State of Maharashtra & Anr., [1966] 3 SCC 744 followed.      Prem Chand  Garg v.  Excise Commissioner,  UP, [1963] 1 SCR 885, referred to.      Kadesh &  Kadesh: Discretion to Disobey, [1973] edn. P. 111, referred to. 26      42. The  maxim Actus  Curiae Neminem  Gravabid  had  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  maximum 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. [120B-C]      43. 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  vacillations  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. [120E]      This Court  had, therefore,  the jurisdiction and power to with  draw and  transfer the  cases from Special Judge to the High Court, and the directions for trial of the offences by a  Special Judge  are not void and these directions could not be challenged in a collateral attack. This Court had not created a  new jurisdiction  and usurped  legislative  power violating the  basic tenet  of  doctrine  of  separation  of powers. [99C-F, 114D, 106E]      44. An  accused person  cannot assert  any right  to  a joint trial with his co-accused. Normally it is the right of the prosecution to decide whom it prosecutes. It can decline to array  a person  as a co-accused and, instead examine him as a  witness for  the prosecution.  What weight  is  to  be attached to  that evidence, as it may smack of the testimony of a  guilty  partner  in  crime,  is  a  different  matter. Prosecution can  enter Nolle  proseque against  any accused- person. It  can seek to withdraw a charge against an accused person. These  propositions are  too well settled to require any further elaboration. [98B-D]      Choraria v. Maharashtra, [1969] 2 SCR 624, referred to.      In the  instant case,  the appellant cannot be heard to complain. Of  the so  called co-conspirators  some have been examined already as pro- 27 secution witnesses;  some others proposed to be so examined; and two  others, had died in the interregnum. The appeal, on the  point,  has  no  substance  and  would  require  to  be dismissed. [98G] Per Ranganathan, J. (partly concurring/dissenting)      45.1 The  language of  s. 7(1) of the 1952 Act places a definite hurdle  in the  way of construing s. 407 of the Cr. P.C. as  overriding its  provisions. In view of non-obstante

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clause also, it cannot be held that the provisions of s. 407 of  the  1973  Cr.  P.C.  will  override,  or  even  operate consistently  with,   the  provisions   of  the   1952  Act. Similarly, the  power of  transfer contained  m clause 29 of the letters  Patent of the High Court cannot be exercised in a manner not contemplated by s. 7(1) of the 1952 Act. [131D- E]      45.2 A  power of  transfer postulates that the court to which transfer  or withdrawal  is  sought  is  competent  to exercise jurisdiction over the case. [130F]      Raja Soap  Factory v.  Shantaraj, [ 1965] 2 SCR, relied on.      45.3 The  power of  transfer contained  in the  Code of Criminal Procedure  cannot  be  availed  of  to  transfer  a criminal case  from a  Special Judge  to any  other criminal court or even to the High Court. 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. [130E-F]      Gurcharan Das  Chadha v.  State of  Rajasthan, [1966] 2 SCR, referred to.      45.4 Not  all the  judges of  the High  Court (but only those elevated  from the  State subordinate judiciary) would fulfil the  qualifications prescribed  under s.  6(2) of the 1952 Act.  Though there  is nothing  in ss.  6  and  7  read together to  preclude altogether  the appointment of a judge of the  High Court  fulfilling the above qualifications as a special judge  such is  not the  (atleast  not  the  normal) contemplation  of  the  Act.  The  scheme  of  the  Act,  in particular the  provisions contained  in ss.  8(3A)  and  9, militate against this concept. [126C, E]      Hence, in  the instant case apart from the fact that no appointment of  a High  Court Judge, as a Special Judge, has in fact  been made, it is not possible to take the view that the statutory provisions permit the 28 conferment of  a jurisdiction  to try  this case  on a  High Court Judge as a Special Judge. [126F]      45.5 The 1952 Act sought to expedite the trial of cases involving public servants by the creation of courts presided over by  experienced special  judges to  be appointed by the State (government.  Effect is  only 13  being given  to  the express and  specific words  used in s. 7(1) and no question arises  of   any  construction   being  encouraged  that  is repugnant to the Cr. P.C. Or involves an implied repeal, pro tanto, of its provisions. [132D. E]      46.1 The  word "jurisdiction  is a  verbal coat of many colours. "  It is  used in  a wide  and  broad  sense  while dealing with  administrative or quasi-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. " [158A-B]      M. L. Sethi v. Kapur, [ 1973] I SCR 697, referred to.      46.2 The  Superior Courts,  with unlimited jurisdiction 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. [158B-C ]

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    Dhirendera Kumar  v. Superintendent,  [1955] I SCR 224; Kiran Singh v. Chaman Paswan, AIK 1955 S.C.R. 117; Anisminic Ltd. v.  Foreign Compensation  Commissioner, [1969]  2  A.C. 147; Badri  Prasad v.  Nagarmal, [1959]  1 Supp. S.C.R. 769; Surajmul Nagarmul  v. Triton Insurance Co. Ltd., [1924] L.R. 52 I.A. 126; Balai Chandra Hazra v. Shewdhari Jadhav, [1978] 3 S.C.R.  147; Ledgard  v. Bull, L.R. 13 I.A. 134; Meenakshi Naidu v.  Subramaniya Sastri,  L.R. 14 I.A. 140; Sukhrani v. Hari Shankar,  [1979] 3 S.C.R. 671; Re: Recal Communications Ltd., [1980] 2 AER 634 and lssacs v. Robertson, [1984] 3 AER 140. referred to.      In the  present case,  the order  passed is  not one of patent lack  of jurisdiction.  Though the  direction in  the order dated  16.2.1984 cannot  be justified  by reference to Article 142  of the  Constitution of  s.  407  of  the  1973 Cr.P.C., that is not an incontrovertible position. It was 29 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 not have been modified in subsequent  proceedings by  this Bench  merely because it was inclined  to hold  differently. The  mere fact  that the direction was given, without an elaborate discussion, cannot render it vulnerable to such review . [158D-F]      47. Unless  the earlier  order is  vitiated by a patent lack of  jurisdiction or  has resulted in grave injustice or has  clearly   abridged  the   fundamental  rights   of  the appellant, this  Court should  not  declare  that  an  order passed by  a five-Judge  Bench is  wrong, and  annul it. The present case  cannot be  brought within  the narrow range of exceptions which calls for such interference. [166E]      The direction  issued by  this Court  in  the  impugned order cannot  be said  to  be  based  on  a  view  which  is manifestly incorrect,  palpably absurd  or patently  without jurisdiction. Whether  it will  be considered right or wrong by a  different Bench having a second-look at the issue is a totally different thing. [167E]      48.1 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 s. 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 to inter-se or  from a court subordinate to a High Court to the High Court  is within  the jurisdiction  of the  appropriate High Court. [133F-G]      48.2 The  powers of  the Supreme Court, in disposing of an appeal or revision, are circumscribed by the scope of the proceedings before it. [133H]      In the  instant case,  the question of transfer was not put in issue before the Supreme Court. The Court was hearing an appeal from the order of discharge and connected matters. There was no issue or controversy or discussion before it as to the  comparative merits of a trial before a special judge vis-a-vis one  before the High Court. There was only an oral request  said  to  have  been  made,  admittedly  after  the judgment was announced. Wide as the powers under Article 141 are, they  do not envisage an order of the type presently in question. [134A, C-D]      K.M. Nanavati  v. The  State of  Bombay, [1961] SCR 497 distinguished. 30

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    48.3 If  the provisions  of  the  1952  Act  read  with Article 139-A  and ss.  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. In  the circumstances of  the case,  the Supreme  Court cannot issue the impugned  direction in  exercise  of  the  powers  under Article 142  or under s. 407 available to it as an appellate court. [l34F]      Hari v. Emperor, AIR 1935 PC 122, referred to.      The direction  that the  trial should be shifted to the High Court  can hardly  be described  as a  consequential or incidental order.  Such a  direction  did  not  flow,  as  a necessary consequence  of the conclusion of the court on the issues and  points debated  before it. Therefore, this Court was in  error when  it directed  that the  trial of the case should be before a High Court Judge, in consequence of which the appellant  is being  tried  by  a  Court  which  has  no jurisdiction-and which  cannot be  empowered by  the Supreme Court-to try him. The continued trial before the High Court, therefore, infringes  Article 21 of the Constitution. [135E- GI      49.1 Section  407 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. [136E-F3]      49.2 The  power of transfer and withdrawal contained in s. 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. [136FJ]      49.3 A  judicial discretion  to transfer or withdraw is vested   in the  highest court  of the  State  and  is  made exercisable  only  in  the  circumstances  set  out  in  the section. Such  a power  is not  only necessary and desirable but indispensable  in the  cause of  the  administration  of justice. The accused will continue to be tried by a or equal or superior jurisdiction. [136G]      The accused  will, therefore,  suffer no  prejudice  by reason of the 31 application of  s. 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. [137A-B]      49.4 only a power of transfer is being exercised by the supreme Court which is sought to be traced back to the power of the High Court under s. 407. [137E]      State  v.   Anwar   Ali   Sarkar,   [1952]   SCR   284, distinguished.      Kathi Raning Rawat v. The State of Saurashtra, [1952] 3 SCR 435,  Re: Special  Courts Bill,  [1978] (1972) 2 SCR 476 and Shukla  v.  Delhi  Administration,  [1980]  3  SCR  500, referred to.      50. l Where a case is withdrawn and tried by the Court, the High  Court will be conducting the trial in the exercise

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of its  extraordinary original  criminal jurisdiction.  Here though the ordinary original criminal jurisdiction is vested in a  subordinate criminal court or special judge, a case is withdrawn by the High Court to itself for trial. [139F, H]      Madura  Tirupparankundram  etc.  v.  Nikhan  Sahib,  35 C.W.N. 1088;  Kavasji Pestonji v. Rustomji Sorabji, AIR 1949 Bombay 42;  Sunil Chandra  Roy and another v. The State, AIR 1954 Calcutta  305; Peoples  Insurance Co.  Ltd.  v.  Sardul Singh Caveeshar  and others, AIR 1961 Punjab 87 and People’s Patriotic Front v. K. K. Birla and others, [ 1984] Crl. L.J. 545, referred to.      50.2 In  a withdrawn case, right of first appeal to the Supreme Court  against the  order passed  by the  High Court will be  available to  the accused  under s. 374 of the 1973 Cr. P.C.,  and 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, will  be final,  with  only  a  chance  of  obtaining special leave  under Article  136 is  totally unfounded. The Supreme Court  will consider  any petition  presented  under Article 136  in the  light of  the in  built requirements of Article 21 and dispose it of as if it were itself a petition of appeal  from the  judgment. Therefore  an  accused  tried directly by  the High Court by withdrawal of his case from a subordinate court,  has a  right of  appeal to  the  Supreme Court under s. 374 of the Cr. P.C. The allegation of an in- 32 fringement of  Article 21  in such  cases is,  therefore,  - unfounded. [140B-F]      Sadanathan  v.   Arunachalam,   [1981]   2   SCR   673, distinguished.      50.3 The  court to  which the case has been transferred is a superior court and in fact the High Court. However, the High Court  Judge is  not a  person to whom the trial of the case can  be assigned  under s.7(1)  of the  1952  Act.  The circumstances 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. [131G-H]      Surajmal Mohta  v. Vishwanath  Sastry,  [1955]  1  SCR, referred to.      50.4 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, and the right of having two courts  subordinate court  and the High Court-adjudicate upon his  contentions before  bringing the  matter up in the Supreme Court.  Though these  are not  such  caps 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 statue in preference to the other. [132A-B]      51.1 t  It is true that the audi altarem partem rule is a basic  requirement of  the rule  of law. But the degree of compliance with  this rule  and the  extent or  consequences flowing from  failure to  do so will vary from case to case. [168B]      Nawabkhan  Abbaskhan   v.  State,  [1974]  3  SCR  427, referred to.      In the  instant case  the appellant  had been  given no chance of  being heard  before the  impugned  direction  was given and  it cannot  be said  whether the  Bench would have acted in  the same  way even  if  he  had  been  given  such opportunity. However, in the circumstances of the case. this

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is not  a fit  case to  interfere with  the earlier order on that ground. [167H, 168A]      51.2 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  live been  set right by immediate action. [169C] 33      R. v.  Secretary of  State for Home Department ex parte Mughal, [1973] 3 All ER 796, referred to.      The direction  of 16.2.1984  cannot  be  said  to  have infringed the  fundamental rights of the appellant or caused any miscarriage  of  justice.  The  appellant  did  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   it  was  likely  to  be.  That  apart,  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 have been  recorded and numerous exhibits have been admitted as evidence.  Though the  trial is  only at the stage of the framing of charges, the trial being according to the warrant procedure, a  lot of evidence has already gone in and if the directions of  this Court  are re-called,  it would 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. [168G-H, 169A-B]      52.1 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  facie  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. [163C]      52.2 Where  a mlstake  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  of 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 hurdle in the way of achieving the desired result. But the mere fact that, for some reason,  the conventional  remedies are  not  available should not  render this  Court  powerless  to  give  relief. [163D-E]      Ghulam Sarwar  v. Union  of India, [1965] 2 S.C.C. 271; Soni Vrijlal  Jethalal v.  Soni Jadavji  Govindji, AIR  1972 Guj. 148;  Jang Singh  v. Brij Lal [1964] 2 S.C.R. 145 at p. 159; Bhagat  Ram v.  State, [1972] 2 S.C.C. 466 and State v. Tara Chand, [1973] S.C.C. Cr. 774, referred to. 34      52.3 lt  may not  be possible  or prudent  to lay  down comprehensive list  of defects  that  will  attract  the  ex debito justiae relief. [163E]      52.4 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  in Justice is  shown to  have resulted.  Such a  power  can  be

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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. [163F]      Issac v. Robertson, [1984] 3 AER 140. referred to.      52.5 However,  such power  has to  be exercised  in the "rarest of  rare" cases and 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  chaotic consequences.  Nothing should  be  done  to create an impression that this Court can be easily persuaded to alter  its views 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 back on  it and render it ineffective in its application and binding nature  even in  regard to subsequent proceedings in the same case. [163G-H 164A]      Bengal Immunity  Company Ltd. v. The State of Bihar and ors., [1953]  2 SCR  603 and  Sheonandan Paswan  v. State of Bihar & Ors., [1987] 1 SCR 288, referred to.      53. The  power of  review is conferred on this Court by Article 137 of the Constitution. It is subject not on to the provisions of  any law  made by Parliament but also to rules made by this Court under article   145. [142H]      The order  dated 16.2.1984  does not  suffer  from  any error apparent  on the  face of  the  record  which  can  be rectified on a review application. The prayer for review has been made  beyond the period mentioned in Rule 2 of order XL of the Supreme Court Rules. No doubt this Court has power to extend the time within which a review petition may be filed. But having  regard to the circumstances of the case there is hardly any  reason to  condone the  delay in  the prayer for review. [144A-B,143B,147H]      The appellant was alive to all his present contentions. At  least  when  the  writ  petition  was  dismissed  as  an inappropriate remedy,  he should  have at  once  moved  this Court for review. [148A] 35      That apart even if the Court is inclined to condone the delay, the  application will  have to  be heard  as  far  as possible by  the same  Judges who  disposed of  the  earlier matter. [148B]      54. It  will not  behove the prestige and glory of this Court  as   envisaged  under  the  Constitution  if  earlier decisions 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. Such a situation is not present in the instant case. [167F-G]      55. Prem  Chand Garg  cannot be treated as an authority for the  proposition that  an earlier  order of  this  Court could be  quashed by  the issue of a writ on the ground that it  violated   the  fundamental   rights.  Mirajkar  clearly precludes such a course. [155G-H]      Prem Chand  Garg v. Excise Commissioner, [1963] Supp. 1 SCR 885, explained and distinguished.      Naresh  Shridhar   Mirajkar  and  others  v.  State  of Maharashtra and another. [1966] SCR 744 relied on.      The direction issued by this Court was not warranted in law, being  contrary to  the special  provisions of the 1952 Act, was  also not  in conformity  with  the  principles  of

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natural  justice  and  that  unless  the  direction  can  be justified with  reference to  s. 407  of  the  Cr.P.C.,  the petitioner’s fundamental  rights under Articles 14 and 21 of the Constitution  can be  said to  have  been  infringed  by reason of this direction. [142C]      However, this  is not one of those cases in which it is considered appropriate  to recall  the earlier direction and order a  re-trial of  the appellant de novo before a Special Judge. [169D]

&      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 468 of 1986.      From the  Judgement and  order  dated  24.7.86  of  the Bombay High Court in Special Cash No. 24/82.      P.P. Rao,  R.D. Ovlekar.  M.N. Dwevedi  (Not in WP. No. 542) 36 Sulman Khurshid, N.V. Pradhan, D.R. Gadgil, R.S. Desai, M.N. Shroff K.V. Sreekumar and P.S. Pradhan for the Petitioner      Ram Jethmalani,  Miss Rani  Jethmalani and Ashok Sharma for the Respondents.      A.M. Khanwilkar  and A.S.Bhasme  for  the  Respondents-      State.      The majority  Judgment of Sabyasachi Mukharji, G.L. Oza and  S.   Natarajan,  JJ.  was  delivered  by  Mukharji,  J. Ranganath Misra  and B.C.  Ray, JJ. gave separate concurring opinions. G.L.  Oza, J.  also gave  a separate opinion. M.N. Venkatachaliah,  J.   delivered  a   dissenting  opinion  S. Ranganathan, j was a partly concurring and partly dissenting opinion:      SABYASACHI MUKHARJI,  J. The  main question involved in this appeal,  is whether  the directions given by this Court on 16th  February, 1984.  as reported  in R.S. Nayak v. A.R. Antulay,[1984] 2  S.C.R. 495 at 557 were legally proper. The next  question   is,  whether   the  action  and  the  trial proceedings pursuant  to those  directions,  are  legal  and valid. Lastly,  the third  consequential  question  is,  can those directions  be recalled  or set  aside or  annulled in those proceedings in the manner sought for by the appellant. In order  to answer these questions certain facts have to be borne in mind.      The appellant  became the Chief Minister of Maharashtra on or  about 9th  of June,  1980. On 1st of September, 1981, respondent No.  1 who  is a  member of  the Bharatiya  Janta Party applied to the Governor of the State under section 197 of the  Criminal Procedure  Code, 1973 (hereinafter referred to  as  the  Code)  and  section  6  of  the  Prevention  of Corruption Act,  1947 (hereinafter  referred to  as the Act) for  sanction   to  prosecute  the  appellant.  On  11th  of September, 1981,  respondent No.  1 filed a complaint before the Additional  Metropolitan Magistrate,  Bombay against the appellant and  other known  and unknown  persons for alleged offence under  sections 161 and 165 of the Indian Penal Code and section  5 of the Act as also under sections 384 and 420 read with  sections 109  and 120B  of the Indian Penal Code. The learned  Magistrate refused  to take  cognizance of  the offences under the Act without the sanction for prosecution. Thereafter a  criminal revision application being C.R.A. No. 1742 of  1981 was  filed in  the High  Court of  Bombay,  by respondent No. 1. 37      The appellant  thereafter  on  12th  of  January,  1982

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resigned from the position of Chief Minister in deference to the judgment  of the  Bombay High  Court in  a writ petition filed against  him.  In  CRA  No.  1742  of  1981  filed  by respondent No.  1 the  Division Bench of the High Court held that sanction  was necessary  for  the  prosecution  of  the appellant  and  the  High  Court  rejected  the  request  of respondent No.  1 to transfer the case from the Court of the Additional Chief Metropolitan Magistrate to itself.      On 28th  of July,  1982, the  Governor  of  Maharashtra granted sanction under section 197 of the Code and section 6 of the  Act in  respect of  five  items  relating  to  three subjects only  and refused  sanction in respect of all other items.      Respondent No.  1 on  9th of August, 1982 filed a fresh complaint against  the appellant  before the learned Special Judge bringing  in many more allegations including those for which  sanction   was  refused   by  the  Governor.  It  was registered as  a  Special  Case  No.  24  of  1982.  It  was submitted by respondent No. 1 that there was no necessity of any sanction  since the  appellant had ceased to be a public servant after his resignation as Chief Minister.      The Special  Judge, Shri  P.S. Bhutta issued process to the appellant  without relying  on the  sanction order dated 28th of  July, 1982.  On 20th  of October,  1982, Shri  P.S. Bhutta   overruled   the   appellants   objection   to   his jurisdiction to  take cognizance  of the  complaint  and  to issue process in the absence of a notification under section 7(2) of  the Criminal  Law Amendment  Act, 1952 (hereinafter referred to  as 1952  Act) specifying  which  of  the  three Special Judges of the area should try such cases.      The State  Government on 15th of January, 1983 notified the appointment  of Shri  R.B. Sule  as the Special Judge to try the  offences specified  under section  6(1) of the 1952 Act. On  or about  25th of  July 1983,  it appears that Shri R.B. Sule,  Special Judge  discharged the  appellant holding that a  member of  the  Legislative  Assembly  is  a  public servant and  there was no valid sanction for prosecuting the appellant.      On 16th  of February,  1984,  in  an  appeal  filed  by respondent No.  1 directly under Article 136, a Constitution Bench of  this Court  held that  a member of the Legislative Assembly is  not a public servant and set aside the order of Special Judge Sule. Instead of remanding the 38 case to  the Special  Judge for  disposal in accordance with law, this  Court suo  motu withdrew  the Special  Cases  No. 24/82 and 3/83 (arising out of a complaint filed by one P.B. Samant) pending  in the  Court  of  Special  Judge,  Greater Bombay, Shri  R.B. Sule  and transferred  the  same  to  the Bombay High  Court with  a  request  to  the  learned  Chief Justice to  assign these two cases to a sitting Judge of the High Court  for holding  the trial  from day  to day.  These directions were  given, according  to the appellant, without any pleadings,  without  any  arguments,  without  any  such prayer from  either side  and without giving any opportunity to the  appellant to make his submissions before issuing the same. It  was submitted  that the  appellant’s right  to  be tried by  a  competent  court  according  to  the  procedure established by  law enacted  by Parliament and his rights of appeal and revision to the High Court under section 9 of the 1952 Act had been taken away.      The directions of this Court mentioned hereinbefore are contained in  the decision  of this  Court in  R.S. Nayak v. A.R. Antulay,  [1984] 2  S.C.R. 495  at 557. There the Court was mainly  concerned with whether sanction to prosecute was

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necessary. It  was held  that no such sanction was necessary in the  facts and  circumstances of  the  case.  This  Court further gave the following directions:           "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           two and  a half  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 Article 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."      The appellant  as mentioned  hereinbefore had  appeared before the Special Judge and objected to the jurisdiction of the learned  Judge on  the ground that the case had not been properly allocated  to him  by  the  State  Government.  The Special Judge Bhutta after hearing 39 the parties  had decided  the case  was validly filed before him and he had properly taken cognizance. He based his order on the  construction of the notification of allocation which was in  force at that time. Against the order of the learned Special Judge  rejecting  the  appellant’s  contention,  the appellant filed  a revision application in the High Court of Bombay.  During   the  pendency   of   the   said   revision application,  the   Government  of   Maharashtra  issued   a notification appointed Special Judge R.B. Sule, as the Judge of the special case. it is the contention of the respondents before us  that the  appellant thereafter  did not raise any further objection in the High Court against cognizance being taken by  Shri Bhutta.  It is important to take note of this contention because  one of  the points  urged by Shri Rao on behalf of  the appellant  was that  not only  we should  set aside the  trial before  the High  Court  as  being  without jurisdiction but  we should  direct that  no  further  trial should take  place before  the  Special  Judge  because  the appellant has suffered a lot of which we shall mention later but also  because cognizance  of the  offences had  not been taken  properly.  In  order  to  meet  the  submission  that cognizance of  the offences  had not been taken properly, it was urged  by Shri  Jethmalani  that  after  the  Government Notification appointing Judge Sule as the Special Judge, the objection that cognizance of the offences could not be taken by Shri  Bhutta was  not agitated  any  further.  The  other objections that  the  appellant  raised  against  the  order passed by  Judge Bhutta  were dismissed by the High Court of Bombay. Against  the order  of the  Bombay  High  Court  the appellant  filed   a  petition  under  Article  136  of  the constitution. The  appeal after grant of leave was dismissed by a judgment delivered on 16th February, 1984 by this Court in A.R. Antulay v. Ramdas Sriniwas Nayak and another, [1984] 2 S  C.R. 914.  There at  page 954 of the report, this Court categorically observed that a private complaint filed by the complaint was  clearly maintainable  and that the cognizance was properly  taken. This  was the  point at  issue in  that

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appeal. This  was decided  against the  appellant.  On  this aspect therefore,  the other point is open to the appellant. We are  of the  opinion that  this observation of this Court cannot by  any stretch  of imagination  be considered  to be without jurisdiction. Therefore, this decision of this Court precludes any  scope for  argument about the validity of the cognizance taken  by Special  Judge Bhutta. Furthermore, the case had  proceeded further  before the  Special Judge, Shri Sule and  the learned  Judge passed an order of discharge on 25th  July,   1983.  This   order  was   set  aside  by  the Constitution Bench  of this Court on 16th February, 1984, in the connected  judgment (vide  1984 2 S.C.R. 495). The order of taking  cognizance had  therefore become final and cannot be reagitated. Moreover section 460(e) of the Code expressly provides that if any Magistrate not empowered by law 40 to take  cognizance of  an  offence  on  a  complaint  under section 190  of the  Code erroneously  in good faith does so his proceedings  shall not be set aside merely on the ground that he was not so empowered.      Pursuant to  the directions  of this  Court dated  16th February, 1984,  on 1st of March, 1984, the Chief Justice of the Bombay  High Court assigned the cases to S.N. Khatri, J. The appellant,  it is  contended before  us, appeared before Khatri, J.  and had  raised an objection that the case could be tried by a Special Judge only appointed by the Government under the  1952 Act.  Khatri, J.  On 13th  of  March,  1984, refused  to   entertain  the   appellant’s   objection   to jurisdiction holding  that he was bound by the order of this Court. There was another order passed on 16th of March, 1984 whereby Khatri,  J. dealt  with the other contentions raised as to  his jurisdiction  and rejected  the objections of the appellant.      Being aggrieved the appellant came up before this Court by filing  special leave petitions as well as writ petition. This Court  on 17th  April, 1984, in Abdul Rehman Antulay v. Union of  India and  others etc., [1984] 3 S.C.R. 482 at 483 held that  the learned  Judge was  perfectly  justified  and indeed it  was the  duty of  the learned Judge to follow the decision of  this Court which was binding on him. This Court in dismissing  the writ  petition observed,  inter alia,  as follows:           "In   my view,  the writ  petition challenging the           validity of  the order and judgment passed by this           Court as  nullity or otherwise incorrect cannot be           entertained. I  wish to  make it  clear  that  the           dismissal of  this  writ  petition  will  not  pre           judice the  right of  the petitioner,  to approach           the Court  with an  appropriate review petition or           to file  any other  application which  he  may  be           entitled in law to file."      D.N. Mehta,  J. to whom the cases were transferred from Khatri, J.  framed charges  under 21  heads and  declined to frame charges  under 22  other heads  proposed by respondent No. 1.  This Court  allowed  the  appeal  by  special  leave preferred by  respondent No.  1 except  in regard  to  three draft charges  under section  384,  I.P.C.  (extortion)  and directed the Court below to frame charges with regard to all other offences  alleged.  This  Court  requested  the  Chief Justice of  the Bombay  High Court to nominate another Judge in place  of D.N. Mehta, J. to take up the trial and proceed expeditiously to  dispose of  the case  finally. See in this connection R.  S. Nayak v. A .R. Antulay and another, [1986] 2 S.C.C. 716. 41

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    P.S. Shah,  J. to  whom the cases were referred to from D.N. Mehta,  J. On  24th of July, 1986 proceeded to frame as many as  79 A  charges against the appellant and decided not to proceed  against the other named co-conspirators. This is the  order  impugned  before  us.  Being  aggrieved  by  the aforesaid order  the appellant  filed  the  present  Special leave Petition  (Crl.) No.  2519  of  1986  questioning  the jurisdiction to try the case in violation of the appellant’s fundamental rights   conferred by Articles 14 and 21 and the provisions of  the Act  of 1952.  The appellant  also  filed Special leave  Petition (Crl.)  No. 2518 of 1986 against the judgment and  order dated 21st of August, 1986 of P.S. Shah, J. holding  that none  of the  79 charges framed against the accused required  sanction under section 197(1) of the Code. The appellant  also filed  a Writ  Petition No.  542 of 1986 challenging a  portion of  section 197(1)  of Code  as ultra vires Articles 14 and 21 of the Constitution.      This Court  granted leave  in  Special  Leave  Petition (Crl. )  No. 2519 of 1986 after hearing respondent No. 1 and stayed further  proceedings in  the High  Court. This  Court issued notice  in Special Leave Petition (Crl.) No. 2518 and Writ Petition  (Crl.) No.  542 of 1986 and directed these to be tagged  on with  the appeal  arising out of Special Leave Petition (Crl. ) No. 2519 of 1986.      On 11th of October, 1986 the appellant filed a Criminal Miscellaneous  Petition   for  permission  to  urge  certain additional  grounds   in  support   of  the  plea  that  the origination of the proceedings before the Court of Shri P.S. Bhutta,  Special   Judge  and  the  process  issued  to  the appellant were illegal and void ab initio.      This  Court   on  29th   October,  1986  dismissed  the application for  revocation of  special leave petition filed by respondent  No. 1 and referred the appeal to a Bench of 7 Judges of  this Court  and indicated  the points in the note appended to the order for consideration of this Bench.      So far  as SLP  (Crl.) No. 2518/86 against the judgment and order  dated 21st  August, 1986  of P.S. Shah, J. Of the Bombay High  Court  about  the  absence  of  sanction  under section 197  of the  Code is  concerned, we have by an order dated  3rd   February,  1988  delinked  that  special  leave petition inasmuch  as the  same involved confederation of an independent question  and directed  that the  special  leave petition should  be heard  by any  appropriate  Bench  after disposal of this appeal, Similarly, Writ Petition (Crl.) No. 542 of 1986 challenging a H 42 portion of  section 197(1) of the Criminal Procedure Code as ultra vires  Articles 14 and 21 of the Constitution had also to be  delinked by  our order dated 3rd February, 1988 to be heard along  with special  leave petition  no 2518  of 1986. This judgment therefore, does not cover these two matters.      In this appeal two questions arise, namely, (1) whether the directions given by this Court on 16th of February, 1984 in  R.S.   Nayak  v.  A.R.  Antulay,  [1984]  2  S.C.R.  495 withdrawing the  Special Case No. 24/82 and Special Case No. 3/83 arising  out of  the complaint  filed by  one shri P.B. Samant pending  in  the  Court  of  Special  Judge,  Greater Bombay, Shri  R.B. Sule,  and transferring  the same  to the High Court  of Bombay with a request to the Chief Justice to assign these two cases to a sitting Judge of the High Court, in breach  of section 7(1) of the Act of 1952 which mandates that offences  as in  this case  shall be tried by a Special Judge only  thereby denying  at least one right of appeal to the appellant  was violative  of Articles  14 and  21 of the Constitution and  whether such  directions were at all valid

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or legal and (2) if such directions were not at all valid or legal in  view. Of  the order  dated 17th.  Of  April,  1984 referred to  hereinbefore, is this appeal sustainable or the grounds therein  justiciable in  these proceedings. In other words,- are  711 the said directions in a proceedings inter- parties binding  even if bad in law or violative of Articles 14 and  21 of  the Constitution  and as such are immune from correction by  this Court  even though  they cause prejudice and do  injury? These  are the  basic questions  which  this Court must answer in this appeal.      The contention  that has  been canvassed  before us was that save as provided in sub-section (1) of section 9 of the Code the provisions thereof corresponding to section 9(1) of the Criminal  Procedure Code, 1898) shall so far as they are not inconsistent  with the  Act  apply  to  the  proceedings before the  Special Judge  and  for  purposes  of  the  said provisions the Court of the Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the  aid   of  assessors   and  the  person  conducting  the prosecution before  a Special  Judge shall be deemed to be a public prosecutor. It was submitted ’before us that it was a private complaint  and the  prosecutor was  not  the  public prosecutor. This  was another  infirmity  which  this  trial suffered, it  was pointed out. In the background of the main issues involved  in this  appeal we  do not  propose to deal with this subsidiary point which is of not any significance.      The only  question with  which we are concerned in this      appeal is, 43 whether the case which is triable under the 1952 Act only by a Special  Judge appointed  under section  6 of the said Act could be  transferred to  the High Court for trial by itself or by  this Court to the High Court for trial by it. Section 406 of  the Code  deals with  transfer of criminal cases and provides power  to this  Court to transfer cases and appeals whenever it  is made  to appear  to this Court that an order under this section is expedient for the ends of justice. The law provides  that this Court 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  of  equal  or  superior jurisdiction subordinate  to  another  High  Court.  Equally section 407  deals with  the power of High Court to transfer cases and  appeals. Under  section 6  of the  1952 Act,  the State Government  is authorised  to appoint  as many Special Judges as  may be  necessary for  such  area  or  areas  for specified offences including offences under the Act. Section 7 of  the 1952  Act deals  with  cases  triable  by  Special Judges. The question, therefore, is whether this Court under section 406  of the Code could have transferred a case which was triable  only by a Special Judge to be tried by the High Court or  even if an application had been made to this Court under section  406 of  the Code to transfer the case triable by a  Special Judge  to another  Special Judge could that be transferred to  a High  Court,  for  trial  by  it.  It  was contended by Shri Rao that the jurisdiction to entertain and try cases  is conferred either by the Constitution or by the laws made  by Parliament.  He referred  us to  the powers of this Court  under Articles  32, 131,  137, 138, 140, 142 and 145(1) of  the Constitution. He also referred to Entry 77 of List I of the Constitution which deals with the constitution of the courts. He further submitted that the appellant has a right to  be tried  in accordance with law. and no procedure which will  deny the equal protection of law can be invented and any  order passed  by this  Court which  will deny equal

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protection of laws would be an order which is void by virtue of Article  13(2) of the Constitution. He referred us to the previous order of this Court directing the transfer of cases to the  High Court  and submitted  that  it  was  a  nullity because of  the consequences of the wrong directions of this Court. The  enormity  of  the  consequences  warranted  this Court’s order  being treated  as a  nullity. The  directions denied the  appellant the  remedy by  way of  appeal  as  of right. Such  erroneous  or  mistaken  directions  should  be corrected at the earliest opportunity, Shri Rao submitted.      Shri Rao  also submitted  that the  directions given by the Court  were without jurisdiction and as such void. There was no  jurisdiction, according  to Shri  Rao, or  power  to transfer a case from the Court of 44 the Special Judge to any High Court. Section 406 Gf the Code only permitted  transfer of  cases from  one High  Court  to another High  Court or  from a Criminal Court subordinate to one High  Court to  a Criminal  Court subordinate to another High Court.  It is  apparent that  the  impugned  directions could not  have been  given under section 406 of the Code as the Court  has no  such power to order the transfer from the Court of the Special Judge to the High Court of Bombay.      Section 7(1)  of the 1952 Act creates a condition which is sine qua non for the trial of offences under section 6(1) of the  said Act.  The  condition  is  that  notwithstanding anything contained  in the Code of Criminal Procedure or any other law,  the said  offences shall  be triable  by Special Judges only.  (Emphasis supplied).  Indeed conferment of the exclusive jurisdiction of the Special Judge is recognised by the judgment  delivered by  this Court  in A.R.  Antulay  v. Ramdas Sriniwas Nayak and another, [1984] 2 S.C.R. 914 where this Court  had adverted to section 7(1) of the 1952 Act and at page  931  observed  that  section  7  of  the  1952  Act conferred  exclusive   jurisdiction  on  the  Special  Judge appointed under  section 6  to try  cases set out in section 6(1)(a) and  6(1)(b) of  the said  Act. The Court emphasised that the  Special Judge  had exclusive  jurisdiction to  try offences enumerated  in section 6(1)(a) and (b). In spite of this while  giving directions  in the other matter, that is, R.S. Nayak v. A.R. Antulay, [1984] 2 S.C.R. 495 at page 557, this Court directed transfer to the High Court of Bombay the cases pending  before the  Special Judge.  It is  true  that section 7(1)  and Section 6 of the 1952 Act were referred to while dealing  with the other matters but while dealing with the matter of directions and giving the impugned directions, it  does  not  appear  that  the  Court  kept  in  mind  the exclusiveness of  the jurisdiction  of the  Special Court to try the offences enumerated in section 6.      Shri Rao  made a point that the directions of the Court were given per incuriam, that is to say without awareness of or advertence to the exclusive nature of the jurisdiction of the Special  Court and  without reference to the possibility of the violation of the fundamental rights in a case of this nature as  observed by  a seven Judges Bench decision in The State of West Bengal v. AnwarAli Sarkar [1952] S.C.R. 284.      Shri  Ram  Jethmalani  on  behalf  of  the  respondents submitted that  the judgment  of the  Constitution Bench  of this Court  was delivered  on 16th  of  February,  1984  and counsel for  both sides  were present  and  it  was  neither objected to nor stated by the appellant that he wanted to be heard in regard to the transfer of the trial forum. He 45 submitted  that   the  order   of  discharge  was  not  only challenged by a special leave petition before this Court but

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also that a revision application before the High Court being Criminal Revision  Application No.  354/83 was filed but the Criminal Revision  Application by an order of this Court was withdrawn and  heard along  with the special leave petition. That application  contained a  prayer to the effect that the order of  discharge be set aside and the case be transferred to the  High Court  for trial.  Therefore, it  was submitted that the order of transfer was manifestly just. There was no review against  this order.  It was submitted that the order of transfer  to a  superior court  cannot in  law or in fact ever cause  any harm  or prejudice  to any accused. It is an order made  for the  benefit  of  the  accused  and  in  the interests of  justice. Reliance was placed on Romesh Chandra Arora v.  The State,  [1960] 1 S.C.R. 924 at 927 and 934. It was further  submitted by  Shri Jethmalani  that a  decision which has  become final cannot be challenged. Therefore, the present proceedings  are an  abuse of  the  process  of  the Court, according  to him.  It was further submitted that all the attributes  of a  trial court were present in a Court of Appeal, an  appeal being  a  continuation  of  trial  before competent  Court   of  Appeal   and,  therefore,   all   the qualifications of the trial court were there. The High Court is authorised  to hear  an appeal  from the  judgment of the Special Judge under the Act of 1952. It was submitted that a Special Judge  except in  so far  as a specific provision to the contrary  is made  is governed  by all the provisions of the Code  and he  is a  Court subordinate to the High Court. See A.R.  Antulay v. R.S. Nayak and another, [1984] 2 S.C.R. 914 at 943 and 944.      It was  submitted that  power under  section 526 of the old Code corresponding to section 407 of the new Code can be exercised qua a Special Judge. This power, according to Shri Jethmalani, is  exerciseable by the High Court in respect of any case  under Section 407(1)(iv) irrespective of the Court in which  it is  pending. This  part of  the section  is not repealed wholly  or pro  tanto,  according  to  the  learned counsel, by  anything in  the  1952  Act.  The  Constitution Bench, it  was submitted,  consciously exercised this power. It decided  that the  High Court had the power to transfer a case to  itself even  from a Special Judge. That decision is binding at least in this case and cannot be reopened, it was urged. In  this case  what was  actually decided  cannot  be undone,  we   were  told  repeatedly.  It  will  produce  an intolerable state of affairs. This Court sought to recognise the distinction  between finality of judicial orders qua the parties and  the  reviewability  for  application  to  other cases. Between the parties even a wrong decision can operate as res  judicata. The doctrine of res judicata is applicable even to criminal 46 trials, it  was urged.  Reliance was placed on Bhagat Ram v. State of Rajasthan, [1972] 2 S.C.C.466. A judgment of a High Court is  binding in  all subsequent proceedings in the same case;  more   so,  a   judgment  which   was  unsuccessfully challenged before this Court.      It is obvious that if a case could be transferred under section 406  of the  Code from a Special Judge it could only be transferred  to another  Special  Judge  or  a  court  of superior jurisdiction  but subordinate to the High Court. No such court  exists. Therefore,  under this section the power of transfer  can only  be from  one Special Judge to another Special Judge.  Under section  407 however, corresponding to section 526 of the old Code, it was submitted the High Court has power  to transfer any case to itself for being tried by it, it was submitted.

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    It appears  to us that in Gurcharan Das Chadha v. State of Rajasthan,  [1966] 2  S.C.R. 678  an  identical  question arose. The  petitioner in  that case  was a member of an All India Service  serving in  the State of Rajasthan. The State Government ordered  his trial  before the  Special Judge  of Bharatpur for  offences under section 120B/161 of the Indian Penal Code  and under  sections 5(1)(a)  and (d) and 5(2) of the Act.  He moved  this Court  under section 527 of the old Code praying  for transfer  of his  case to another State on various grounds.  Section  7(1)  of  the  Act  required  the offences involved  in that  case to  be tried  by a  Special Judge only,  and  section  7(2)  of  the  Act  required  the offences to  be tried by a Special Judge for the area within which these  were committed  which condition  could never be satisfied if  there was a transfer. This Court held that the condition in  sub-section (1)  of section  7 of the Act that the case must be tried by a Special Judge, is a sine qua non for the  trial of  offences under  section 6. This condition can be  satisfied by  transferring the case from one Special Judge to another Special Judge. Sub-section (2) of section 7 merely distributes,  it  was  noted,  work  between  Special Judges appointed  in a  State with  reference to  territory. This provision  is at par with the section of the Code which confers territorial  jurisdiction  on  Sessions  Judges  and magistrates. An  order of  transfer by  the very  nature  of things must  sometimes result  in taking the case out of the territory. The  third sub-section  of section  8 of  the Act preserves the application of any provision of the Code if it is not  inconsistent with  the Act  save as  provided by the first two  sub-sections of that Section. It was held by this Court that  section 527  of the  old  Code,  hence,  remains applicable if  it is  not inconsistent  with section 7(2) of the Act. It was held that there was no inconsistency between section 527 of the Code and 47 section 7(2)  of the  Act as  the  territorial  jurisdiction created by  the latter  operates in  a different  sphere and under different  circumstances. Inconsistency  can  only  be found  if   two  provisions   of  law   apply  in  identical circumstances, and  create contradictions.  Such a situation does not  arise when  either this  Court or  the High  Court exercises the  power of  transfer. Therefore,  this Court in exercise of  its jurisdiction and power under section 521 of the  Code   can  transfer   a  case  from  a  Special  Judge subordinate to  one High  Court  to  another  Special  Judge subordinate to  another High  Court. It has to be emphasised that that  decision was  confined to the power under section 527 of  the previous  Code and  to transfer from one Special to another  Special Judge  though of  another State.  It was urged by  Shri Jethmalani  that Chadha’s  case (supra) being one of  transfer from  one  Special  Judge  to  another  the judgment is  not an  authority for  the proposition  that it cannot be  transferred to  a court  other  than  that  of  a Special Judge  or to  the High  Court. But  whatever be  the position, this is no longer open at this juncture.      The jurisdiction,  it was submitted, created by section 7 of  the Act  of 1952  is of  exclusiveness qua  the Courts subordinate to  the High  Court. It  is not  exclusive qua a Court of  superior jurisdiction  including a Court which can hear an appeal against its decision. The non obstante clause does not  prevail over  other provisions of the Code such as those which  recognise the  powers of the superior courts to exercise jurisdiction on transfer. It was submitted that the power of  transfer vested  in the  High Court is exercisable qua Special  Judges and is recognised not merely by Chadha’s

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case but in earlier cases also, Shri Jethmalani submitted.      It was  next submitted  that apart from the power under sections 406  and 407  of the  Code the power of transfer is also exercisable  by the High Court under Article 228 of the Constitution. There’ is no doubt that under this Article the case can  be withdrawn from the Court of a Special Judge. It is open  to the  High Court  to finally  dispose  it  of.  A chartered High  Court can  make  orders  of  transfer  under clause 29  of the  Letters Patent.  Article 134(1)(b) of the Constitution expressly  recognises  the  existence  of  such power in every High Court.      It was  further submitted that any case transferred for trial to  the High  Court in which it exercises jurisdiction only by  reason of the order of transfer is a case tried not in  ordinary   original   criminal   jurisdiction   but   in extraordinary  original  criminal  jurisdiction.  Some  High Courts had  both ordinary  criminal jurisdiction  as well as extraordinary 48 criminal original  jurisdiction. The former was possessed by the High  Courts of  Bombay, Madras  and Calcutta. The first two High  Courts abolished  it in  the 40’s and the Calcutta High Court  continued it  for quite  some time and after the 50’s in a truncated form until it was finally done away with by the  Code. After  the Code  the  only  original  criminal jurisdiction  possessed   by  all   the   High   Courts   is extraordinary. It  can arise  by transfer  under the Code or the Constitution  or under  clause 29 of the Letters Patent. It was  submitted that  it was  not right that extraordinary original criminal  jurisdiction is  contained only in clause 24 of  the Letters  Patent of the Bombay High Court. This is contrary to  section 374  of the Code itself. That refers to all High  Courts and  not merely all or any one of the three Chartered High Courts. In P.P. Front, New Delhi v. KK. Birla and others,  [1984] Criminal Law Journal 545, the Delhi High Court  recognised   its  extraordinary   original   criminal jurisdiction as  the only  one that it possessed. The nature of  this   jurisdiction  is  clearly  explained  in  Madura, Tirupparankundram etc. v. Alikhan Sahib and Ors, 35 Calcutta Weekly Notes,  1088 and Sunil Chandra Roy and another v. The State, A.I.R. 1954 Calcutta 305, paragraph 15. Reference may also  be   made  to  the  Law  Commissioner’s  41st  Report, paragraphs 3.1  to 3.6  at page  29 and  paragraph 31. 10 at page 259.      The 1952  Act was  passed to provide for speedier trial but the  procedure evolved should not be so directed, it was submitted, that  it would  violate Article 14 as was held in Anwar Ali Sarkar’s case (supra).      Section 7 of the 1952 Act provides that notwithstanding anything contained  in the Code of Criminal Procedure, or in any other  law the  offences specified in sub-section (1) of section 6  shall be  triable by  Special Judges only. So the law provides  for a  trial by Special Judge only and this is notwithstanding anything  contained in  sections 406 and 407 of  the   Code  of   Criminal  Procedure,  1973.  Could  it, therefore, be accepted that this Court exercised a power not given to  it by  Parliament or  the Constitution  and  acted under a  power not  exercisable by it? The question that has to be  asked and answered is if a case is tried by a Special Judge or a court subordinate to the High Court against whose order an  appeal or  a revision would lie-to the High Court, is transferred  by this  Court to  the High  Court and  such right of  appeal or  revision is  taken away  would  not  an accused be  in a  worse position  than others? This Court in R.S. Nayak  v. A.R.  Antulay, [1984]  2 S.C.R.  495 did  not

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refer either  to section  406 or section 407 of the Code. It is only  made dear  that if the application had been made to the 49 High Court  under section  407 of  the Code,  the High Court might have transferred the case to itself      The second question that arises here is if such a wrong direction has  been given by this Court can such a direction inter-parties be  challenged subsequently.  This is really a value perspective judgement.      In Kiran  Singh and others v. Chaman Paswan and others, l 19551  1 S.C.R.  117 at 121 Venkatarama Ayyar, J. Observed that the  fundamental principle  is well  established that a decree passed  by a Court without jurisdiction is a nullity, and that  its validity could be set up whenever and wherever it is sought to be enforced or relied upon-even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether  it is  pecuniary  or  territorial,  or whether it  is in  respect  of  the  subject-matter  of  the action, strikes  at the  very authority of the Court to pass any decree,  and such  a defect  cannot  be  cured  even  by consent of parties.      This question  has been  well put, if we may say so, in the decision  of this  Court in  M.L. Sethi  v. R.P.  Kapur, [1973] 1  S.C.R. 697  where Mathew,  J.  Observed  that  the jurisdiction was  a verbal coat of many colours and referred to the  decision in  Anisminic Ltd.  v. Foreign Compensation Commission, [1969]  2 A.C.  147 where  the majority  of  the House of  Lords dealt  with the assimilation of the concepts of ’lack’  and ’excess’  of jurisdiction or, in other words, the extent  to which we have moved away from the traditional concept of  jurisdiction. The  effect of  the dicta  was  to reduce the difference between jurisdictional error and error of law within jurisdiction almost to a vanishing point. What is a  wrong decision  on a  question of limitation, he posed referring  to   an  article   of  Professor   H.W.R.   Wade, "Constitutional and  Administrative Aspects of the Anismanic case" and  concluded; "it  is a  bit difficult to understand how an erroneous decision on a question of limitation or res judicata would  oust the  jurisdiction of  the Court  in the primitive sense  of the  term and  render  the  decision  or decree embodying the decision a nullity liable to collateral attack ..  And  there  is  no  yardstick  to  determine  the magnitude of the error other than the opinion of the Court." (Emphasis supplied)      While applying  the ratio  to the  facts of the present controversy, it has to be borne in mind that 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 that Act. In this connection,  the offences  specified under section 6(1) of the  1952 Act  are those  punishable under  sections 161, 162, 50 163, 164  and 165A 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. It is true that in  the  first  judgment  in  A.R.  Antulay  v.  Ramdas Sriniwas Nayak  and another,  [1984] 2  S.C.R. 914 when this Court was  analysing the scheme of the 1952 Act, it referred to sections  6 and  7  at  page  931  of  the  Reports.  The arguments, however, were not advanced and it does not appear

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that this  aspect with  its remifications was present in the mind of the Court while giving the impugned directions.      Shri Jethmalani sought to urge before us that the order made by the Court was not without jurisdiction or irregular. We are  unable to agree. 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 offences by  public   servants  mentioned  in  the  1952  Act  to  be overridden 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. The power  to create  or enlarge jurisdiction is legislative in character,  so also the power to confer a right of appeal or to  take away  a right of appeal. Parliament alone can do it by law and no Court. whether superior or inferior or both combined can enlarge the jurisdiction of a Court or divest a person of  his rights  of revision  and appeal.  See in this connection the  observations in  M.L. Sethi  v.  R.P.  Kapur (supra) in which Justice Mathew considered Anisminic, [1969] 2 AC  147 and  also see Halsbury’s Laws of England, 4th Edn. Vol. 10  page  327  at  para  720  onwards  and  also  Amnon Rubinstein ’Jurisdiction  and Illegality’  (1965 Edn.  pages 16-50). Reference  may also  be made to Raja Soap Factory v. S. P. Shantaraj, [1965] 2 SCR 800.      The question of validity, however, is important in that the want  of jurisdiction  can be  established solely  by  a superior Court  and that,  in practice,  no decision  can be impeached  collaterally  by  any  inferior  Court.  But  the superior Court  can always  correct its own error brought to its notice either by way of petition or ex debito justitiae. See Rubinstein’s Jurisdiction and Illegality’ (supra).      In the  aforesaid view  of the matter and the principle      reiterated, it 51 is manifest  that the  appellant has  not been ordered to be tried by  a procedure  mandated by  law, but  by a procedure which was  violative of Article 21 of the Constitution. That is violative of Articles 14 and 19 of the Constitution also, as is  evident from  the observations  of the 7 Judges Bench judgment in Anwar Ali Sarkar’s case (supra) where this Court found that even for a criminal who was alleged to have committed an  offence, a  special  trial  would  be  per  se illegal  because   it  will   deprive  the  accused  of  his substantial  and  valuable  privileges  of  defences  which, others similarly  charged, were  able to  claim. As  Justice Vivian Bose observed in the said decision at page 366 of the report, it  matters not  whether it  was done in good faith, whether it  was done  for  the  convenience  of  Government, whether the  process could  be scientifically classified and labelled, or whether it was an experiment for speedier trial made  for  the  good  of  society  at  large.  Justice  Bose emphasised that  it matters  not how  lofty and laudable the motives were.  The question  which must  be examined is, can fair minded,  reasonable, unbiased  and resolute  men regard that with  equanimity 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 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,

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unprecedented and the directions given by this Court for the said purpose,  were not  warranted. If that is the position, when that  fact is  brought to our notice we must remedy the situation.  In   rectifying   the   error,   no   procedural inhibitions should debar this Court because no person 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. In this connection, reference may be made to the decision of  the Gujarat High Court in Soni Vrajlal Jethalal v. Soni  Jadavji Govindji  and others, A.I.R. 1972 Guj. 148. Where D.A.  Desai, J.  speaking for  the Gujarat  High Court observed that  no act  of the court or irregularity can come in the  way of justice being done and one of the highest and the first duty of all Courts is to take care that the act of the Court does no in jury to the suitors.      It appears  that when  this Court  gave  the  aforesaid directions on  16th February,  1984, for the disposal of the case against the appellant by the High Court, the directions were given  oblivious of  the relevant provisions of law and the decision in Anwar Ali Sarkar’s case (supra). 52      See Halsbury’s  Laws of England, 4th End, Vol. 26, page 297, para 578 and page 300, the relevant notes 8, 11 and 15; Dias on Jurisprudence, 5th Edn., pages 128 and 130; Young v. Bristol Aeroplane  Co. Ltd.,  [1944] 2  AER 293 at 300. Also see the  observations of  Lord Goddard  in Moore  v. Hewitt, [1947] 2 A.E.R. 270 at 272-A and Penny v. Nicholas, [1950] 2 A.E.R. 89,  92A. "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. See Morelle v. Wakeling,  [1955] 1 All E.R. 708, 718F. Also see State of Orissa v.  The Titaghur  Paper Mills  Co. Ltd., [19851 3 SCR 26. We  are of  the  opinion  that  in  view  of  the  clear provisions of  section 7(2)  of the  Criminal Law Arnendment Act, 1952  and Articles 14 and 21 of the Constitution, these directions were legally wrong.      The principle  that the size of the Bench-whether it is comprised of  two or  three or  more Judges-does not matter, was enunciated  in  Young  v.  Bristol  Aeroplane  Co.  Ltd. (supra) and  followed by  Justice Chinnappa  Reddy in  Javed Ahmed Abdul  Hamid Pawala  v. State of Maharashtra, [1985] 2 SCR 8  where it has been held that a Division Bench of three Judges should  not overrule  a Division Bench of two Judges, has  not   been  followed   by  our   Courts.  According  to wellsettled law  and various  decisions of this Court, it is also well-settled  that a Full Bench or a Constitution Bench decision as  in Anwar  Ali Sarkar’s case (supra) was binding on the  Constitution Bench  because it  was  a  Bench  of  7 Judjes.      The principle  in England  that the  size of  the Bench does not  matter, is  clearly brought out in the decision of Evershed M.R.  in the  case of  Morelle v. Wakeling (supra). The law laid down by this Court is somewhat different. There is a  hierarchy within  the Court  itself here, where larger Benches overrule  smaller Benches.  See the  observations of this Court in Mattulal v. Radhe Lal, [1975] 1 SCR 127, Union of India & Anr. v. K.S. Subramanian, [1977] 1 SCR 87 at page 92 and  State of  U.P. v.  Ram Chandra Trivedi, [1977] 1 SCR 462 at  473. This is the practice followed by this Court and now  it   is  a  crystallised  rule  of  law.  See  in  this

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connection, as  mentioned hereinbefore,  the observations of the State of Orissa v. Titagarh Paper Mills (supra) and also Union of  India and  others v.  Godfrey Philips  India Ltd., [1985] Suppl 3 SCR 123 at 145.      In support of the contention that a direction to delete wholly the 53 impugned direction  of this  Court be  given,  reliance  was placed on Satyadhvan Ghoshal v. Deorajini Devi, [1960] 3 SCR 590. The  ratio of the decision as it appears from pages 601 to 603  is that  the judgment  which does  not terminate the proceedings, can  be challenged  in  an  appeal  from  final proceedings. It  may be  otherwise if subsequent proceedings were independent ones.      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  re-opening this question  and giving  proper directions  and correcting the error in the present appeal, when the said directions on 16th  February,  1984,  were  violative  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. It is true  that Shri  Jethmalani has shown us the prayers made before the  High Court  which are  at page 121 of the paper- book. He  argued that  since the  transfers have  been  made under section  407, the  procedure would  be that  given  in section  407(8)   of  the   Code.  These   directions,  Shri Jethmalani sought  to urge before us, have been given in the presence of the parties and the clarificatory order of April 5, 1985  which was made in the presence of the appellant and his Counsel  as well  as the Counsel of the State Government of Maharashtra,  expressly recorded  that no such submission was  made  in  connection  with  the  prayer  for  grant  of clarification. We are of the opinion that Shri Jethmalani is not right  when he  said that  the decision was not made per incuriam as submitted by the appellant. It is a settled rule that if a decision has been given per incuriam the Court can ignore it.  It is  also true that the decision of this Court in the  case of The Bengal Immunity Co. Ltd. v. The State of Bihar &  Ors. [1955]  2 SCR  603 at 623 was not regarding an order which  had become  conclusive inter-parties. The Court was examining  in that  case only the doctrine of precedents and  determining  the  extent  to  which  it  could  take  a different view from one previously taken in a different case between different parties.      According to  Shri  Jethmalani,  the  doctrine  of  per incuriam has 54 no application  in the  same proceedings.  We are  unable to accept this  A contention.  We are  of the opinion that 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

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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 or any legal right  of the petitioner. See the observations in Prem Chand Garg  v. Excise  Commissioner, U.P.  Allahabad, [1963] Supp. 1 S.C.R. 885.      In support  of the  contention that  an order  of  this Court be it administrative or judicial which is violative of fundamental right can always be corrected by this Court when attention of  the Court  is drawn  to this  infirmity, it is instructive to  refer to  the decision of this Court in Prem Chand Garg  v. Excise Commissioner, U.P., Allahabad (supra). This is  a decision  by a  Bench  of  five  learned  Judges. Gajendragadkar, J.  spoke for  four learned Judges including himself and  Shah, J.  expressed a  dissenting opinion.  The question was  whether Rule  12 of  order XXXV of the Supreme Court Rules  empowered the  Supreme Court  in writ petitions under Article  32  to  require  the  petitioner  to  furnish security for the costs of the respondent. Article 145 of the Constitution provides  for the  rules to  be made subject to any  law   made  by   Parliament  and  Rule  12  was  framed thereunder. The  petitioner  contended  that  the  rule  was invalid as  it placed  obstructions on the fundamental right guaranteed under  Article 32  to move  the Supreme Court for the enforcement  of fundamental rights. This rule as well as the judicial  order dismissing the petition under Article 32 of the Constitution for non-compliance with Rule 12 of order XXXV of  the Supreme Court Rules were held invalid. In order to appreciate  the significance of this point and the actual ratio of  that decision  so far  as it  is relevant  for our present purpose  it is  necessary to refer to a few facts of that decision. The petitioner and 8 others who were partners of M/s.  Industrial  Chemical  Corporation,  Ghaziabad,  had filed under  Article  32  of  the  Constitution  a  petition impeaching the  validity of  the order  passed by the Excise Commissioner refusing permission to the Distillery to supply power alcohol  to the  said petitioners.  The  petition  was admitted on 12th December, 1961 and a rule was ordered to be issued to  the respondents, the Excise Commissioner of U.P., Allahabad, and  the State  of U.P. At the time when the rule was issued, this Court directed under the impugned rule that the petitioners should deposit a security 55      Of Rs.2,500  in cash within six weeks. According to the practice of  this A  Court prevailing since 1959, this order was treated  as a  condition precedent for issuing rule nisi to the  impleaded  respondents.  The  petitioners  found  it difficult to  raise the  amount and  so on January 24, 1962, they moved  this Court for modification of the said order as to  security.   This  application  was  dismissed,  but  the petitioners were  given further  time to  deposit  the  said amount by March 26, 1962. This order was passed on March 15, 1962. The  petioners then  tried to  collect  the  requisite fund, but  failed in  their efforts and that led to the said petition filed  on March  24, 1962  by the said petitioners. The petitioners  contended that the impugned rule, in so far as it  related to  the giving  of security, was ultra vires, because it  contravened the  fundamental right guaranteed to the petitioners  under Article 32 of the Constitution. There were two  orders, namely,  one for  security  of  costs  and another for  the dismissal of the previous application under Article 32 of the Constitution.      This Court  by majority held that Rule 12 of order XXXV of the  Supreme Court  Rules was  invalid in  so far  as  it

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related to the furnishing of security. The right to move the Supreme Court,  it was  emphasised, under  Article 32 was an absolute right  and the  content of  this right could not be circumscribed or  impaired on  any ground  and an  order for furnishing security  for the respondent’s costs retarded the assertion or  vindication of  the  fundamental  right  under Article 32 and contravened the said right. The fact that the rule was  discretionary did  not alter  the position. Though Article 142(1)  empowers the Supreme Court to pass any order to do complete justice between the parties, the Court cannot make an  order  inconsistent  with  the  fundamental  rights guaranteed by  Part III  of the Constitution. No question of inconsistency between  Article 142(1)  and Article 32 arose. Gajendragadkar, J.  speaking for  the majority of the Judges of this  Court said that Article F 142(1) did not confer any power on  this Court to contravene The provisions of Article 32 of  the Constitution.  Nor did  Article 145  confer power upon this  Court to  make rules, empowering it to contravene the provisions  of the fundamental right. At page 899 of the Reports, Gajendragadkar,  J. reiterated  that the  powers of this Court  are no doubt very wide and they are intended and "will always  be exercised in the interests 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  III of  the Constitution. It was emphasised that an order which  this Court  could make  in order 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 56 with the  substantive provisions  of the  relevant statutory laws (Emphasis  A supplied).  The Court therefore, held that it was  not possible  to hold  that Article 142(1) conferred upon this Court powers which could contravene the provisions of Article  32. It  follows, therefore,  that the directions given by this Court on 16th February, 1984, on the ground of expeditious trial  by transferring  Special Case  No. 24  of 1982 and  Special Case No. 3 of 1983 pending in the Court of Special Judge,  Greater Bombay,  Shri S.B. Sule, 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 was  contrary to  the  relevant  statutory  provision, namely, section 7(2) of the Criminal law Amendment Act, 1952 and as  such violative  of Article  21 of  the Constitution. Furthermore, it  violates Article  14 of the Constitution as being made  applicable to  a very  special  case  among  The special cases,  without any  guideline  as  to  which  cases required speedier  justice. If  that was so as in Prem Chand Garg’s case, that was a mistake of so great a magnitude that it deprives  a man  by  being  treated  differently  of  his fundamental right  for defending himself in a criminal trial in accordance  with law.  If  that  was  so  then  when  the attention of  the Court  is drawn  the Court  has always the power and  the obligation  to correct it ex debito justitiae and treat  the second application by its inherent power as a power of  review to  correct the original mistake. No suitor should suffer for the wrong of the Court. This Court in Prem Chand Garg’s  case struck  down not  only the administrative order enjoined  by Rule  12 for  deposit of  security  in  a petition under  Article 32  of  the  Constitution  but  also struck down  the judicial order passed by the Court for non- deposit of such security in the subsequent stage of the same proceeding when  attention of  the Court to the infirmity of the rule was drawn. It may be mentioned that Shah, J. was of the opinion  that rule 12 was not violative. For the present

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controversy it  is not necessary to deal with this aspect of the matter.      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 S.C.R. 744. The facts were  different and not quite relevant for our present purposes but  in order  to appreciate the contentions urged, it will  be appropriate  to refer to certain portions of the same. There  was a suit for defamation against the editor of a weekly  newspaper, which was filed in the original side of the High  Court. One  of the witnesses prayed that the Court may order that publicity should not be given to his evidence m the press as his business would be affected. After hearing arguments, the trial Judge passed an oral order 57 prohibiting the  publication of the evidence of the witness. A reporter  of the weekly along with other journalists moved this Court  under Article 32 of the Constitution challenging the validity  of the  order. It  was contended that: (1) the High Court  did not  have inherent  power to pass the order; (2) the  impugned order  violated the  fundamental rights of the petitioners  under Article  19(1)(a); and  (3) the order was amenable  to the  writ jurisdiction  of this Court under Article 32 of the constitution      It was  held by  Gajendragadkar, C.J.  for himself  and five other  learned Judges  that the  order was  within  the inherent power of the High Court. Sarkar, J. was of the view that the  High Court  had power  to prevent  publication  of proceedings and  it was a facet of the power to hold a trial in camera  and stems  from it. Shah, J. was, however, of the view that  the Code  of Civil Procedure contained no express provision authorising  the Court  to hold its proceedings in camera, but  if excessive  publicity itself  operates as  an instrument of injustice, the Court has inherent jurisdiction to pass an order excluding the public when the nature of the case necessitates such a course to be adopted. Hidayatullah, J. was,  however, of the view that a Court which was holding a public trial from which the public was not excluded, could not suppress the publication of the deposition of a witness, heard not in camera but in open Court, on the request of the witness that  his business  would suffer. Sarker, J. further reiterated that  if a judicial tribunal makes an order which it has jurisdiction to make by applying a law which is valid in all  respects, that  order cannot  offend  a  fundamental right. An  order which  is within  the jurisdiction  of  the tribunal which  made it, if the tribunal had jurisdiction to decide the  matters that were litigated before it and if the law which  it applied  in making  the order was a valid law, could not  be interfered  with. It  was reiterated  that the tribunal having  this  jurisdiction  does  not  act  without jurisdiction if  it makes an error in the application of the law.      Hidayatullah, J.  Observed at  page 790  of the  report that in  Prem  Chand  Garg’s  case  the  rule  required  the furnishing of  security in  petition under Article 32 and it was held  to abridge the fundamental rights. But it was said that the  rule was struck down and not the judicial decision which was  only revised.  That may  be so.  But  a  judicial decision based  on such a rule is not any better and offends the fundamental rights just the same and not less so because it  happens   to  be  a  judicial  order.  If  there  be  no appropriate remedy  to get such an order removed because the Court has  no superior,  it does  not mean that the order is made good. When judged under the Constitution it is still a

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58 void order  although it  may bind  parties unless set aside. Hidayatullah, J.  reiterated that  procedural safeguards are as  important   as  other   safeguards.   Hidayatullah,   J. reiterated  that   the  order  committed  a  breach  of  the fundamental right  of freedom  of speech  and expression. We are, therefore,  of the  opinion that  the appropriate order would be  to recall  the directions  contained in  the order dated 16th February, 1984.      In considering  the question  whether in  a  subsequent proceeding we  can go  to the  validity or  otherwise  of  a previous decision on a question of law inter-parties, it may be instructive  to refer  to the  decision of  this Court in Smt. Ujjam  Bai v.  State of  Uttar Pradesh, [1963] 1 S.C.R. 778. There,  the petitioner  was a  partner in  a firm which carried on the business of manufacture and sale of hand-made bidis. On  December 14,  1957, the State Government issued a notification under  section 4(1)(b)  of the  U.P. Sales  Tax Act, 1948. By a subsequent notification dated 25th November, 1958, hand-made  and machine-made bidis were unconditionally exempted from  payment of  sales tax.  The Sales Tax officer had sent  a notice  to the firm for the assessment of tax on sale of  bidis during  the assessment  period 1st  of April, 1958  to   June  30,   1958.  The   firm  claimed  that  the notification dated  14th December,  1957 had  exempted bidis from payment  of sales  tax and  that, therefore, it was not liable to  pay sales tax on the sale of bidis. This position was not accepted by the Sales Tax officer who passed certain orders. The  firm appealed under section 9 of the Act to the Judge (Appeals)  Sales Tax, but that was dismissed. The firm moved the  High Court under Article 226 of the Constitution. The High  Court took  the view  that the  firm  had  another remedy under  the Act  and the  Sales Tax  officer  had  not committed   any   apparent   error   in   interpreting   the notification of  December 14,  1957. The  appeal against the order of  the High  Court on  a  certificate  under  Article 133(1)(a) of  the Constitution  was dismissed  by this Court for non-prosecution  and the firm filed an application for a restoration of  the appeal  and condonation of delay. During the pendency of that appeal another petition was filed under Article 32  of the  Constitution for  the enforcement of the fundamental right  under Articles  19(1)(g) and  31  of  the Constitution. Before  the Constitution Bench which heard the matter  a  preliminary  objection  was  raised  against  the maintainability of  the petition  and the correctness of the decision of  this Court  in Kailash  Nath v.  State of U.P., A.I.R. 1957  S.C. 790  relied upon  by  the  petitioner  was challenged. The learned Judges referred the case to a larger Bench. It  was held  by this  Court by  a majority  of  five learned Judges  that the  answer to the questions must be in the negative.  The case  of Kailash  Nath was  not correctly decided and the decision was not sustainable on 59 the authorities  on which it was based. Das, J. speaking for himself observed  that the  right  to  move  this  Court  by appropriate proceedings  for the  enforcement of fundamental rights conferred  by Part III of the Constitution was itself a guaranteed  fundamental  right  and  this  Court  was  not trammelled by  procedural technicalities  in making an order or issuing  a writ  for the  enforcement of such rights. The question, however,  was whether,  a quasi-judicial authority which made  an  order  in  the  undoubted  exercise  of  its jurisdiction in  pursuance of  a provision  of law which was intra vires,  an error  of law  or fact  committed  by  that authority could  not be  impeached otherwise than on appeal,

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unless the  erroneous determination  related to  a matter on which the  jurisdiction of  that body  depended. It was held that a tribunal might lack jurisdiction if it was improperly constituted. In such a case, the characteristic attribute of a judicial  act or decision was that it binds, whether right or  wrong,   and  no   question  of  the  enforcement  of  a fundamental  right  could  arise  on  an  application  under Article 32. Subba Rao, J. was, however, unable to agree.      Shri Jethmalani urged that the directions given on 16th February, 1984,  were not  per incuriam.  We are  unable  to accept this  submission. It  was manifest  to the Bench that exclusive jurisdiction  created under  section 7(1)  of  the 1952 Act  read with  section 6 of the said Act, when brought to the  notice of  this Court, precluded the exercise of the power under  section 407 of the Code. There was no argument, no submission  and no  decision on this aspect at all. There was no  prayer in  the appeal  which was pending before this Court for  such  directions.  Furthermore,  in  giving  such directions, this  Court did  not advert  to or  consider the effect of  Anwar Ali  Sarkar’s  case  (supra)  which  was  a binding precedent.  A mistake on the part of the Court shall not cause  prejudice to  any one.  He further added that the primary duty  of every  Court is  to  adjudicate  the  cases arising  between  the  parties.  According  to  him,  it  is certainly open  to a  larger Bench  to take a view different from that  taken by  the earlier Bench, if it was manifestly erroneous and  he urged  that the  trial of  a corrupt Chief Minister before  a High Court, instead of a Judge designated by the  State Government  was not  so  injurious  to  public interest that  it should  be  overruled  or  set  aside.  He invited us  to consider two questions: (1) does the impugned order promote  justice? and  (2) is  it  technically  valid? After considering these two questions, we are clearly of the opinion that  the answer  to both  these questions is in the negative. 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 60 the act  a nullity.  Four valuable rights, it appears to us, of the  appellant have  been  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,  if           necessary.      In this  connection Shri  Rao rightly submitted that it is no  necessary to  consider whether  section  374  of  the Criminal Procedure  Code confers the right of appeal to this Court from the judgment of a learned Judge of the High Court to whom  the case had been assigned inasmuch as the transfer itself was  illegal. One has to consider that section 407 of the Criminal  Procedure Code  was subject  to the overriding mandate of  section 7(1) of the 1952 Act, and hence, it does not permit  the High  Court to  withdraw a case for trial to itself from  the Court of Special Judge. It was submitted by Shri Rao that even in cases where a case is withdrawn by the High Court  to itself  from a  criminal court other than the Court of Special Judge, the High Court exercised transferred

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jurisdiction which  is different  from original jurisdiction arising out  of initiation  of the  proceedings in  the High Court. In  any event  section 374 of Criminal Procedure Code limits the  right to appeals arising out of clause 24 of the Letters Patent.      In aid  of the  submission  that  procedure  for  trial evolved in  derogation of the right guaranteed under Article 21 of  the Constitution would be bad, reliance was placed on Attorney General  of India v. Lachma Devi and others, [1985] 2 Scale  144. In  aid of  the submission  on the question of validity  our  attention  was  drawn  to  ’Jurisdiction  and Illegality’ by  Amnon Rubinstein (1965 Edn.). The Parliament did not  grant to  the Court  the jurisdiction to transfer a case to  the High  Court of Bombay. However, as the superior Court is  deemed to  have a  general jurisdiction,  the  law presumes that  the Court  acted within  jurisdiction. In the instant case  that  presumption  cannot  be  taken,  firstly because the question of jurisdiction was not agitated before the 61 Court, secondly  these directions were given per incuriem as mentioned hereinbefore  and thirdly the superior Court alone can set  aside an  error in its directions when attention is drawn to  that error. This view is warranted only because of peculiar facts  and circumstances  of the present case. Here the trial  of a  citizen in  a Special  Court under  special jurisdiction is  involved, hence, the liberty of the subject is involved.  In this connection, it is instructive to refer to page  126 of  Rubinstein’s aforesaid  book. It  has to be borne in  mind that  as in  Kuchenmeister  v.  Home  office, [1958] 1  Q.B. 496  here form  becomes substance.  No doubt, that being  so it  must be  by decisions and authorities, it appears to  us patently  clear that  the directions given by this Court  on 16th  February, 1984 were clearly unwarranted by constitutional  provisions and  in derogation  of the law enacted by  the Parliament. See the observations of Attorney General v.  Herman James Sillem, [1864] 10 H.L.C. 703, where it was  reiterated that the creation of a right to an appeal is an  act which  requires legislative authority, neither an inferior Court  nor the  superior Court or both combined can create  such  a  right,  it  being  one  of  limitation  and extension of  jurisdiction. See  also  the  observations  of Isaacs v.  Roberston, [1984]  3  A.E.R.  140  where  it  was reiterated by  Privy Council  that if an order is regular it can be  set aside  by an  appellate Court;  if the  order is irregular it  can be  set aside by the Court that made it on the application  being made  to that  Court either under the rules of  that Court  dealing expressly  with setting  aside orders for  irregularity  or  ex  debito  justitiae  if  the circumstances warranted,  namely, violation  of the rules of natural justice  or fundamental  rights. In Ledgard v. Bull, 13 I.A.  134, it was held that under the old Civil Procedure Code under  section 25  the superior Court could not make an order of  transfer of a case unless the Court from which the transfer was  souht to  be made, had jurisdiction to try. In the  facts  of  the  instant  case,  the  criminal  revision application which  was pending before the High Court even if it was  deemed to be transferred to this Court under Article 139A of the Constitution it would not have vested this Court with power  larger than  what is contained in section 407 of Criminal Procedure  Code. Under  section 407 of the Criminal Procedure Code read with the Criminal law Amendment Act, the High Court  could not  transfer to  itself proceedings under sections 6 and 7 of the said Act. This Court by transferring the proceedings  to itself,  could not  have acquired larger

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jurisdiction. The  fact that  the objection  was not  raised before this  Court giving  directions on 16th February, 1984 cannot  amount   to  any  waiver.  In  Meenakshi  Naidoo  v. Subramaniya Sastri,  14 I.A.  160 it  was held that if there was inherent  incompetence in  a High Court to deal with all questions before  it then  consent could  not confer  on the High Court any jurisdiction which it never possessed. 62      We are  clearly of  the opinion  that the  right of the appellant under Article 14 regarding equality before the law and equal  protection of law in this case has been violated. The appellant  has also  a right  not to  be singled out for special treatment  by a Special Court created for him alone. This right  is implicit  in the right to equality. See Anwar Ali Sarkar’s case (supra).      Here the appellant has a further right under Article 21 of the  Constitution-a right  to trial  by a  Special  Judge under section  7(1) of  the 1952  Act which is the procedure established by  law made  by the  Parliament, and  a further right to  move the  High Court  by way of, revision or first appeal under  section 9 of the said Act. He has also a right not to suffer any order passed behind his back by a Court in violation  of  the  basic  principles  of  natural  justice. Directions having  been given  in this  case as we have seen without hearing  the appellant  though it  appears from  the circumstances that  the order  was passed in the presence of the counsel for the appellant, these were bad.      In Nawabkhan Abbaskhan v. The State of Gujarat, [1974]3 S.C.R. 427, it was held that an order passed without hearing a party which affects his fundamental rights, is void and as soon as  the order is declared void by a Court, the decision operates from  its nativity.  It is proper for this Court to act ex debito justitiae, to act in favour of the fundamental rights of the appellant.      In so  far  as  Mirajkar’s  case  (supra)  which  is  a decision of a Bench of 9 Judges and to the extent it affirms Prem Chand  Garg’s case  (supra), the  Court  has  power  to review either  under section  137 or suo motu the directions given  by   this  Court.   See  in  this  connection  P.S.R. Sadhananatham v.  Arunachalam, [1980]  2 SCR 873 and Suk Das v. Union  of Territory of Arunachal Pradesh, [1986] 2 S.C.C. 401. See  also the  observations in  Asrumati Debi  v. Kumar Rupendra  Deb   Raikot  and   others,  [1953]  S.C.R.  1159, Satyadhyan Ghosal  and others  v.  Smt.  Deorajin  Debi  and another, [1960]  3 S.C.R.  590, Sukhrani (dead) by L.Ls. and others v.  Hari Shanker  and others, [1979] 3 S.C.R. 671 and Bejoy Gopal  Mukherji v. Pratul Chandra Ghose, [1953] S.C.R. 930.      We are further of the view that in the earlier judgment the points  for setting  aside the decision, did not include the question  of withdrawal  of the  case from  the Court of Special Judge  to Supreme  Court and transfer it to the High Court. Unless  a plea in question is taken it cannot operate as res  judicata. See  Shivshankar Prasad Shah and others v. Baikunth Nath Singh and others, [1969] 1 S.C.C. 718, Bikan 63 Mahuri and  others v.  Mst. Bibi  Walian and  others, A.I.R. 1939 Patna  633. See  also S.  L.  kapoor  v.  Jagmohan  and others, [1981]  1 S.C.R. 746 on the question of violation of the principles of natural justice. Also see Maneka Gandhi v. Union of  India, [1978]  2 S.C.R.  621 at  pages  674-68  1. Though what is mentioned hereinbefore in the Bengal Immunity Co. Ltd. v. The State of Bihar and others (supra), the Court was not concerned with the earlier decision between the same parties. At  page 623  it was  reiterated that the Court was

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not bound  to follow  a  decision  of  its  own  if  it  was satisfied that  the decision  was given  per incuriam or the attention of  the Court  was not  drawn.  It  is  also  well settled that  an elementary rule of justice is that no party should  suffer   by  mistake   of  the   Court.  See  Sastri Yagnapurushadji and  others v.  Muldas Bhudardas Vaishya and another, [1966] 3 S.C.R. 242, Jang Singh v. Brijlal, l 1964] 2 S.C.R.  145, Bhajahari Mondal v. The State of West Bengal, [1959]  S.C.R.   1276   at   1284-1286   and   Asgarali   N. Singaporawalla v.  The State of Bombay, [1957] S.C.R. 678 at 692.      Shri Rao  further submitted  that we  should  not  only ignore the  directions or set aside the directions contained in the order dated 16th February, 1984, but also direct that the appellant  should not  suffer any  further trial. It was urged  that   the  appellant   has  been   deprived  of  his fundamental right  guaranteed under  Articles 14 and 21 as a result of  the directions given by this Court. Our attention was drawn  to the  observations of  this Court  in Suk Das’s case (supra)  for this  purpose. He  further addressed us to the fact  that six  and half  years have  elapsed since  the first complaint  was lodged against the appellant and during this long period the appellant has suffered a great deal. We are further  invited to  go into the allegations and to held that there  was nothing which could induce us to prolong the agony of  the appellant. We are, however, not inclined to go into this question.      The right  of appeal  under section  374 is  limited to Clause 24  of Letters  Patent. It was further submitted that the    expression     ’Extraordinary    original    criminal jurisdiction’ under  section 374 has to be understood having regard to  the language  used in the Code and other relevant statutory provisions  and not  with reference  to  decisions wherein Courts  described jurisdiction  acquired by transfer as extraordinary  original jurisdiction.  In that  view  the decisions referred  to  by  Shri  Jethmalani  being  Kavasji Pestonji Dalal  v. Rustomji Sorabji jamadar & Anr., AIR 1949 Bom. 42,  Sunil Chandra  Roy &  Anr. v.  The State, AIR 1954 Cal. 305,  Sasadhar Acharjya  & Anr. v. Sir Charles Tegart & Ors., [1935]  Cal. Weekly Notes 1088, Peoples’ Insurance Co. Ltd. v.  Sardul Singh  Caveeshgar &  Ors., AIR 1961 Punj. 87 and P.P. Front, New 64 Delhi v. K. K. Birla, [1984] Cr. L.J. 545 are not relevant.      It appears  to us  that there  is good deal of force in the  argument  that-section  411A  of  the  old  Code  which corresponds to  section 374  of the  new Code  contained the expression ’original  jurisdiction’. The  new Code abolished the original  jurisdiction of  High Courts  but retained the extraordinary original  criminal jurisdiction  conferred  by clause 24  of the  Letters Patent  which some  of  the  High Courts had.      The right  of appeal  is, therefore,  confined only  to cases decided  by  the  High  Court  in  its  Letter  Patent jurisdiction  which  in  terms  is  ‘extraordinary  original criminal jurisdiction’.      By the time the new Code of Criminal Procedure 1973 was framed, Article 21 had not been interpreted so as to include one right of appeal both on facts and law.      Shri Ram  Jethmalani made  elaborate submissions before us regarding  the purpose  of the Criminal Law Amendment Act and the  constitution of  the Special Court. In our opinion, these submissions  have no  relevance and  do not  authorise this Court  to confer a special jurisdiction on a High Court not warranted by the statute. The observations of this Court

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in Re  The Special  Courts Bill,  1978, [1979] 2 SCR 476 are not relevant  for this  purpose. Similarly, the observations on right  of appeal in V. C. Shukla v. Delhi Administration, [1980] 3  SCR 500,   Shri  Jethmalani brought  to our notice certain facts  to say  that the powers given in the Criminal Law Amendment  Act were  sought to  be misused  by the State Government under  the influence  of the  appellant.  In  our opinion, these  submissions are not relevant for the present purpose. Mr.  Jethmalani submitted that the argument that in so far  as section 407 purports to authorise such a transfer it stands  repealed by  section 7(1)  of  the  Criminal  Law Amendment Act  is wrong.  He said  it can  be  done  in  its extraordinary criminal jurisdiction. We are unable to accept this submission. We are also unable to accept the submission that the  order of  transfer was made with full knowledge of section 7(1)  of the  Criminal Law Amendment Act and the so- called exclusive  jurisdiction was  taken away  from Special Judges and  the directions were not given per incuriam. That is not  right. He  drew our  attention to  the principles of interpretation of  statutes and  drew our  attention to  the purpose of  section 7(1)  of the Act. He submitted that when the Amending  Act  changes  the  law,  the  change  must  be confined to  the mischief  present and  intended to be dealt with. He  drew us  to the  Tek Chand  Committee  Report  and submitted that he did not wish that an 65 occasional case  withdrawn and  tried in  a High  Court  was because of delay in disposal of corruption cases. He further submitted that  interference with  existing jurisdiction and powers of  superior Courts  can only be by express and clear language. It cannot be brought about by a side wind.      Thirdly, the  Act of  1952 and the Code have to be read and construed together, he urged. The Court is never anxious to discover a repugnancy and infer apro tanto repeal. Resort to the  non obstante  clause is  permissible only when it is impossible to harmonise the two provisions.      Shri Jethmalani  highlighted before  us that it was for the first  time a  Chief Minister  had been  found guilty of receiving quid  pro quo for orders of allotment of cement to various builders  by  a  Single  Judge  of  the  High  Court confirmed by  a Division  Bench of  the High  Court. He also urged before  us that it was for the first time such a Chief Minister did  not have  the courage to prosecute his special leave petition  before this  Court against  the findings  of three Judges  of the  High Court. Shri Jethmalani also urged that it  was for the first time this Court found that a case instituted  in   1982  made  no  progress  till  1984.  Shri Jethmalani also  sought to  contend that section 7(1) of the 1952 Act  states "shall  be triable by Special Judges only", but does  not say  that under no circumstances the case will be transferred  to be  tried by  the High  Court even in its Extraordinary original  Criminal Jurisdiction.  He submitted that section  407(1)(iv) is very much in the statute and and it is  not repealed  in respect  of the cases pending before the Special Judge. There is no question of repealing section 407(1)(iv). Section  407 deals  with the  power of  the High Court to  transfer cases  and appeals. Section 7 is entirely different and one has to understand the scheme of the Act of 1952, he  urged. It  was an  Act which  provided for  a more speedy trial  of certain offences. For this it gave power to appoint Special  Judges and  stipulated for  appointment  of Special  Judges   under  the  Act.  Section  7  states  that notwithstanding anything contained in the Code, the offences mentioned in  sub-section (1)  of section 6 shall be triable by Special Judges only. By express terms therefore, it takes

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away the  right to  transfer cases  contained in the Code to any  other   Court  which  is  not  a  Special  Court.  Shri Jethmalani sought  to urge  that the  Constitution Bench had considered this  position. That is not so. He submitted that the directions of this Court on 16th February, 1984 were not given per incuriam or void for any reason. He referred us to Dias on  jurisprudence, 5th  Edition, page 128 and relied on the decision of Milianges v. George Frank (Textiles) Ltd., 66 [1975] 3  All E.R.  801 at  821. He  submitted that  the per incuriam rule  A does not apply where the previous authority is alluded  to. It is true that previous statute is referred to in  the other  judgment delivered  on the  same  date  in connection with  different contentions. Section 7(1) was not referred to  in respect  of the  directions  given  on  16th February, 1984  in the  case of  R.S. Nayak  v. A.R. Antulay (supra).   Therefore,    as   mentioned   hereinbefore   the observations indubitably  were per incuriam. In this case in view of  the specific  language used in section 7, it is not necessary  to   consider  the   other  submissions  of  Shri Jethmalani, whether  the  procedure  for  trial  by  Special Judges under the Code has stood repealed or not. The concept of repeal  may have no application in this case. It is clear that 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 of interpretation or  the mischief rule of interpretation. This is well illustrated from the observations of Tindal, C.J. in Sussex Peerage  Claim, [18441  11 Cl  & Fin  85 at  143.  He observed:           "The only  rule for  the construction  of Acts  of           Parliament  is   that  they  should  be  construed           according to  the intent  of the  Parliament which           passed the Act. If the words of the statute are in           themselves precise  and unambiguous,  then no more           can be  necessary than  to expound  those words in           that  natural   and  ordinary   sense.  The  words           themselves alone  do, in  such case,  best declare           the intention  of the  lawgiver. But  if any doubt           arises from the terms employed by the legislature,           it has always been held a safe means of collecting           the intention, to call in aid the ground and cause           of making the statute, and to have recourse to the           preamble, which,  according to Chief Justice Pyer,           Stewell v.  Lord Zouch,  [1569] 1 Plowd 353 at 369           is a  key to  open the  minds of the makers of the           Act,  and  the  mischiefs  which  they  intend  to           redress".      This  passage   states  the   commonly  accepted   view concerning the relationship between the literal and mischief rules of  interpretation  of  statutes.  Here  there  is  no question as  to what  was the  previous  law  and  what  was intended to  be placed  or  replaced  as  observed  by  Lord Wilberforce in  274 House of Lords Debate, Col. 1294 on 16th November, 1966,  see Cross; Statutory Interpretation, second edition, page  36. He  observed that  the interpretation  of legislation is  just a  part of  the process of being a good lawyer; a  multi-faceted  thing,  calling  for  many  varied talents; not a subject which can be confined in rules. 67 When the  words are  clear nothing  remains to  be seen.  If words are  as such ambiguous or doubtful other aids come in. In this  context, the  submission of controversy was whether the Code  repealed  the  Act  of  1952  or  whether  it  was repugnant or  not is  futile  exercise  to  undertake.  Shri

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Jethmalani distinguished  the  decision  in  Chadha’s  case, which has  already been  discussed. It  is not  necessary to discuss the  controversy whether  the Chartered  High Courts contained the  Extraordinary original  Criminal Jurisdiction by the Letters Patent.      Article 134(1)(b)  does not  recognise  in  every  High Court power  to withdraw  for trial  cases  from  any  Court subordinate to  its authority.  At least this Article cannot be construed  to mean where power to withdraw is restricted, it can  be widened  by virtue  of Article  134(1)(b) of  the Constitution. Section  374 of  the Code  undoubtedly gives a right of  appeal. Where  by a  specific clause of a specific statute the  power is  given for  trial by the Special Judge only and  transfer can  be from  one such  Judge to  another Special Judge,  there is no warrant to suggest that the High Court has  power to  transfer such a case from a Judge under section 6  of the Act of 1952 to itself. It is not a case of exclusion of the superior Courts. So the submissions made on this aspect by Shri Jethmalani are not relevant.      Dealing with  the submission  that  the  order  of  the Constitution Bench  was void  or non-est and it violated the principles of  natural justice,  it was  submitted  by  Shri Jethmalani that  it was  factually incorrect. Inspite of the submissions the  appellant did not make any submission as to directions for  transfer as  asked for  by Shri Tarkunde. It was submitted  that the  case should  be transferred  to the High Court.  The Court  merely observed  there that they had given ample direction. No question of submission arose after the judgment was delivered. In any case, if this was bad the fact that  no objection  had been  raised would  not make it good. No  question of technical rules or res judicata apply, Shri Jethmalani  submitted that  it would amount to an abuse of the  process of  the Court. He referred us to Re Tarling, [1979] 1  All E.R. 981 at 987; Ali v. Secretary of State for the Home  Department, [1984]  1 All  E.R. 1009  at 1014  and Seervai’s Constitutional  Law, Vol.  1, pages 260 to 265. We are of  the opinion that these submissions are not relevant. There is  no  abuse  of  the  process  of  the  Court.  Shri Jethmalani submitted  that there  was no  prejudice  to  the accused. There was prejudice to the accused in being singled out as a special class of accused for a special dispensation without room for any appeal as of right and without power of the revision  to the  High Court. There . prejudice in that. Reliance placed on the decision of this Court in 68 Ramesh Chandra  Arora v.  The State,  [1960] 1 S.C.R. 924 at 927 was not proper in the facts of this case.      If  a  discrimination  is  brought  about  by  judicial perception and  not by executive whim, if it is unauthorised by law,  it will  be in  derogation  of  the  right  of  the appellant as  the special  procedure in  Anwar Ali  Sarkar’s case (supra)  curtailed the  rights and  privileges  of  the accused. Similarly,  in this  case by judicial direction the rights and  privileges of  the accused  have been  curtailed without any justification in law. Reliance was placed on the observations of the seven Judges Bench in Re: Special Courts Bill, 1978  (supra). Shri  Jethmalani  relied  on  the  said observations therein  and emphasised  that purity  in public life is  a desired  goal at  all times and in all situations and ordinary  Criminal Courts  due  to  congestion  of  work cannot reasonably  be expected  to bring the prosecutions to speedy  termination.   He  further   submitted  that  it  is imperative that  persons holding  high public  or  political office must  be speedily  tried in the interests of justice. Longer these  trials last,  justice will tarry, assuming the

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charges to  be justified, greater will be the impediments in fostering democracy,  which is  not a  plant of easy growth. All this is true but 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.      Our attention  was drawn  to Article  145(e) and it was submitted that  review can  be  made  only  where  power  is expressly conferred  and the  review is subject to the rules made  under   Article  145(e)  by  the  Supreme  Court.  The principle of  finality on which the Article proceeds applies to both  judgments and orders made by the Supreme Court. But 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  debite justitiae. Shri Jethmalani’s submission was that ex  debite justitiae,  these directions  could  not  be recalled. We are unable to agree with this submission.      The Privy  Council in  Isaacs v.  Robertson,  [1984]  3 A.E.R. 140  held that  orders made  by a  Court of unlimited jurisdiction in  the course  of contentious  litigation  are either regular  or irregular.  If an order is regular it can only be  set aside by an appellate Court; if it is irregular it can be set aside by the Court that made it on application being made to that Court either under rules of Court dealing expressly 69 with setting  aside orders  for irregularity  or  ex  debite justitiae if  the  circumstances  warranted,  namely,  where there was a breach of the rules of natural justice etc. Shri Jethmalani urged  before us that Lord Diplock had in express terms rejected  the argument  that any  orders of a superior Court of  unlimited jurisdiction  can over  be void  in  the sense that  they can  be ignored  with impunity.  We are not concerned with  that. Lord  Diplock delivered  the judgment. Another Judge who sat in the Privy Council with him was Lord Keith of  Kinkel. Both  these Law  Lords were parties to the House of  Lords judgment  in Re  Racal Communications  Ltd . case [1980]  2 A.E.R. 634 and their Lordships did not extend this principle  any further.  Shri Jethmalani submitted that there was  no question  of reviewing  an order passed on the construction of  law. Lord  Scarman refused  to  extend  the Anisminic principle  to superior  Courts by  the  felicitous statement that this amounted to comparison of incomparables. We are  not concerned  with this  controversy.  We  are  not comparing incomparables.  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.      The directions  given by  the order  of 16th  February, 1984 at  page 557  were certainly  without hearing though in the  presence  of  the  parties.  Again  consequential  upon directions these  were challenged  ultimately in  this Court and finally this Court reserved the right to challenge these by an appropriate application.      The  directions  were  in  deprival  of  Constitutional rights and  contrary to the express provisions of the Act of 1952.  The   directions  were  given  in  violation  of  the principles of  natural justice.  The directions were without precedent  in  the  background  of  the  Act  of  1952.  The directions definitely  deprived  the  appellant  of  certain

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rights of  appeal and  revision and  his  rights  under  the Constitution.      We  do   not  labour   ourselves  on  the  question  of discretion to  disobey a  judicial order  on the  ground  of invalid  judicial   order.  See  discretion  to  Disobey  by Mertimer R.  Kadish and Sanford H. Kadish pages 111 and 112. These directions  were void  because the power was not there for this  Court to  transfer a  proceeding under  the Act of 1952 from one Special Judge to the High Court. This is not a case of  collateral attack  on judicial  proceeding; it is a case  where  the  Court  having  no  Court  superior  to  it rectifies its  own order.  We recognise that the distinction between an error which entails absence of jurisdiction and 70 an error  made within the jurisdiction is very fine. So fine indeed that  it is  rapidly being eroded as observed by Lord Wilberforce  in   Anisminic  Ltd.  v.  Foreign  Compensation Commissioner, [1959] 1 All E.R. 208 at 244. Having regard to the enormity  of  the  consequences  of  the  error  to  the appellant and by reason of the fact that the directions were given suo  motu, we  do not  find there  is anything  in the observations  of   Ittavira  Mathai  v.  Varkey  Varkey  and another, [19641  1 S.C.R. 495 which detract the power of the Court to  review its  judgment ex  debite justitiae  in case injustice has  been caused.  No  court,  however,  high  has jurisdiction  to   give  an   order   unwarranted   by   the Constitution and,  therefore, the  principles of  Bhatia Co- operative Housing Society Ltd. v. D. C. Patel, [1953] S.C.R. 185 at 190 would not apply.      ln giving  the  directions  this  Court  infringed  the Constitutional safeguards  granted to  a citizen  or  to  an accused and  injustice results  therefrom. It  is  just  and proper for  the Court to rectify and recall that in justice, in the peculiar facts and circumstances of this case      This case  has  caused  us  considerable  anxiety.  The appellant accused  has held  an important  position in  this country, being  the Chief Minister of a premier State of the country. He has been charged with serious criminal offences. His  trial   in  accordance   with  law  and  the  procedure established by  law would  have to be in accordance with the 1952 Act.  That could  not possibly  be done  because of the directions of  this Court  dated  16th  February,  1984,  as indicated above.  It has  not yet  been  found  whether  the appellant  is   guilty  or   innocent.  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. The appellant may be  guilty of  grave offences  alleged against him or he may be  completely or  if not  completely to a large extent, innocent. 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 those 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  may or may not be an ideal

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71 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  other vise  the injustice  noticed will remain forever a  blot on  justice. It  has been said long time ago that "Actus  Curiae Neminem  Gravabit"-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.      Lord  Cairns   in  Alexander  Rodger  v.  The  Comptoir D’escompte De  Paris, (Law Reports Vol. III 1869-71 page 465 at page 475) observed thus:           "Now, their  Lordships are of opinion, that one of           the first  and highest  duties of all Courts is to           take care that the act of the Court does no injury           to any  of the  Suitors, and  when the  expression           ’the act  of the  Court’ is used, it does not mean           merely the  act of  the Primary  Court, or  of any           intermediate Court  of appeal,  but the act of the           Court as  a whole,  from the  lowest  Court  which           entertains jurisdiction  over the matter up to the           highest Court  which finally disposes of the case.           It  is   the  duty   of  the  aggregate  of  those           Tribunals, if  I may  use the  expression, to take           care that no act of the Court in the course of the           whole of  the proceedings  does an  injury to  the           suitors in the Court." 72      This passage  was quoted  in the  Gujarat High Court by D.A. Desai,  J. speaking  for  the  Gujarat  High  Court  in Vrajlal v.  Jadavji (supra)  as mentioned before. It appears that in giving directions on 16th February, 1984, this Court acted  per  incuriam  inasmuch  it  did  not  bear  in  mind consciously the  consequences and the provisions of sections 6 and 7 of the 1952 Act and the binding nature of the larger Bench decision  in Anwar Ali Sarkar’s case (supra) which was not adverted to by this Court. 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 debite  justitiae, we  must do

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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.      Shri  Rao,   learned  counsel  for  the  appellant  has vehemently  canvassed  before  us  that  the  appellant  has suffered a great wrong for over six and a half years. He has undergone trials  and proceedings because of the mistakes of the Court.  Shri Rao  submitted that the appellant should be made not  to  suffer  more.  Counsel  urged  that  political battles must  be fought in the political arena. Yet a charge of infraction of law cannot remain uninvestigated against an erstwhile Chief Minister of a premier State of the country.      Shri Rao  has canvassed  before us  on the authority of Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, [1979] 3 S.C.R. 169 at 179-180; Kadra Pahadiyal (1) v. State of Bihar, A.I.R. 1981 S.C. 939; Kadra Pahadiya (II) v. State of Bihar, A.I.R. 1982 S.C. 1167 and Sheela Barse v. Union of India, A.I.R. 1986 S.C. 1773. He has, however, very strongly relied upon  the observations  of this  Court in  SukDas  v. Union Territory  of Arunachal  Pradesh (supra). In that case the appellant  a government  servant was tried and convicted to suffer  imprisonment for  two years  for  offences  under Section  506  read  with  Section  34,  I.P.C.  He  was  not represented at  the trial  by any  lawyer by  reason of  his inability to afford legal representation. On appeal the High Court  held  that  the  trial  was  not  vitiated  since  no application for  legal aid  was made  by him. On appeal this Court quashed  the conviction  and considered  the  question whether the  appellant would  have to be tried in accordance with law after providing legal assistance to him. This Court felt that  in the  interests of justice the appellant should be reinstated  in service without back wages and accordingly directed that no trial should take place. Shri Rao submitted that we should in the 73 facts of  this case  in the interests of justice direct that the appellant  should not be tried again. Shri Rao submitted to let the appellant go only on this long delay and personal inconveniences suffered  by the appellant, no more injury be caused to  him. We  have considered  the submission.  Yet we must remind  ourselves that  purity of public life is one of the cardinal  principal which  must be upheld as a matter of public policy. Allegations of legal infractions and criminal infractions must  be investigated in accordance with law and procedure established under the Constitution. Even if he has been wronged,  if he  is allowed  to be  left in  doubt that would cause  more serious  damage to  the appellant.  Public confidence in public administration should not be eroded any further. One wrong cannot be remedied by another wrong.      ln the  aforesaid view  of the matter and having regard to the  facts and  circumstances of  the case, we are of the opinion that  the legal  wrong that  has been  caused to the appellant should  be remedied.  Let that  wrong be therefore remedied. Let  right be  done and  in doing  so let  no more further injury be caused to public purpose.      ln the  aforesaid view  of the  matter  the  appeal  is allowed; all  proceedings in  this matter  subsequent to the directions of this Court on 16th February, 1984 as indicated before are set aside and quashed. The trial shail proceed in accordance with law, that is to say under the Act of 1952 as mentioned hereinbefore.      RANGANATH  MISRA,  J:  I  have  had  the  advantage  of perusing  the   judgment  proposed  by  my  learned  Brother Mukharji, J.  While I  agree with the conclusion proposed by

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my esteemed  Brother, keeping  the importance of the matter, particularly the  consequences the  decision may generate as also the  fact that  I was  a party  to the  two-Judge Bench decision of this Court reported in 1986 (2) SCC 716 in view, I propose to express my opinion separately.      Abdul Rehman  Antulay, the  appellant,  was  the  Chief Minister of  the State of Maharashtra from 1980 till January 20, 1982,  when he resigned his office but continued to be a member  of  the  Maharashtra  Legislative  Assembly.  Ramdas Shrinivas Nayak, Respondent No. I herein, lodged a complaint in  the   Court  of   Chief  Metropolitan  Magistrate,  28th Esplanade, Bombay,  on September  ll, 1981,  against Antulay alleging commission  of several  offences under  the  lndian Penal Code  as  also  Section  5(2)  of  the  Prevention  of Corruption Act,  1947 (’1947  Act’ for  short). The  learned Magistrate was  of the  view that prosecution under Sections 161 and 165 of the Penal Code and 74 Section 5  of the  1947 Act required sanction as a condition precedent  and   in  its   absence  the  complaint  was  not maintainable. The Governor of Bombay later accorded sanction and the  Respondent no. 1 filed a fresh complaint, this time in the  Court of  the Special  Judge of Bombay, alleging the commission of  those offences  which had formed the subject- matter of  the complaint before the Magistrate. On receiving summons from  the Court  of the  particular  Special  Judge, Antulay took  the stand  that the  said Special Judge had no jurisdiction to  entertain the  complaint  in  view  of  the provisions of  Section 7  of the Criminal Law Amendment Act, 1952 (hereinafter  referred to  as the  1952  Act)  to  take cognizance and  such cognizance  could not  be  taken  on  a private complaint.  These objections  were overruled  by the Special judge  by order dated October 20, 1982, and the case was set  down for recording evidence of the prosecution. The Criminal Revision  Petition of the accused against the order of the  Special Judge  was rejected by the Bombay High Court and it held that a private complaint was maintainable and in view of  the notification  specifying a  particular  Special Judge for  the offences  in question  there was no basis for the objections.  This Court  granted special  leave  to  the accused against  the decision  of  the  High  Court  that  a private complaint  was maintainable. Criminal Appeal No. 347 of 1983  thus  came  to  be  instituted.  ln  the  meantime, objection raised  before  the  Special  Judge  that  without sanction the  accused who  still continued to be a member of Legislative Assembly,  could not  be prosecuted  came to  be accepted by  the Special  Judge.  The  complainant  filed  a criminal  revision   application  before   the  High   Court questioning that  order. This  Court granted  special  leave against the  decision that sanction was necessary, whereupon Criminal Appeal  No. 356  of 1983  was  registered  and  the pending criminal  revision application before the High Court was transferred to this Court. Both the criminal appeals and the transferred  criminal revision  were heard together by a five-Judge Bench  of this  Court but  the two  appeals  were disposed of  by two separate judgments delivered on February 16, 1984. The judgment in Criminal Appeal No. 347 of 1983 is reported in  (1984) 2  SCR 914. In the present appeal we are not very  much concerned with that judgment. The judgment of Criminal Appeal  No. 356 of 1983 is reported in (1984) 2 SCR 495. As  already noticed  the main  theme  of  the  criminal appeal was  as  to  whether  a  member  of  the  Legislative Assembly was  a public servant for whose prosecution for the offences involved in the complaint sanction was necessary as a condition precedent. This Court at page 557 of the Reports

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came to hold:                "To sum  up, the  learned Special  Judge  was           clearly in 75           error in  holding that  M.L.A. is a public servant           within the  meaning of  the expression  in Section           12(a) and further erred in holding that a sanction           of the  Legislative  Assembly  of  Maharashtra  or           majority of  the members was a condition precedent           to taking  cognizance of offences committed by the           accused. For  the reasons  herein stated  both the           conclusions are  wholly unsustainable  and must be           quashed and set aside." Consequently this Court directed:                "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. 3/1983  is hereby  set           aside and the trial shall proceed further from the           stage where the accused was discharged." This Court gave a further direction to the following effect:                "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  2 1/2  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 Article 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."      Pursuant to  this direction,  the two  cases came to be posted for  trial before  Khatri J. Of the Bombay High Court and trial  opened on April 9, 1984. The appellant challenged Khatri J.’s jurisdiction on 12th March, 1984 when the matter was first placed before him but by two separate orders dated 13th March,  1984 and  16th March,  1984, the  learned Judge rejected the objection by saying that he was bound by 76 this Court’s  direction of  the 16th February, 1984. Antulay then moved  A this  Court by  filing  an  application  under Article 32 of the Constitution. A two-Judge Bench consisting of Desai  and A.N.  Sen. JJ. by order dated 17th April, 1984 dismissed the applications by saying:                Sen, J .:                "There is no merit in this writ petition. The           writ petition is accordingly dismissed.                In my view, the writ petition challenging the           validity of  the order and judgment passed by this           Court as  nullity or otherwise incorrect cannot be           entertained. I  wish to  make it  clear  that  the           dismissal of this writ petition will not prejudice           the right  of the petitioner to approach the Court           with an appropriate review petition or to file any           other application  which he may be entitled in law

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         to file."                Desai, J.:                "I broadly agree with the conclusion recorded           by my  brother. The  learned Judge in deciding the           SLP (Crl.)  Nos. 1949-50  of 1984 has followed the           decision of  this Court.  The  learned  Judge  was           perfectly justified  and indeed it was the duty of           the learned  Judge to  follow the decision of this           Court which  is  binding  on  him.  Special  leave           petitions are dismissed. " (1984(3) SCR 482). 16 witnesses  were examined  by Khatri  J. by July 27, 1984. Khatri J.  was relieved  of trying  the case on his request, whereupon the  learned Chief  Justice nominated  Mehta J. to continue the  trial. 41  more witnesses were examined before him and  at the  stage when  57 witnesses  in all  had  been examined for  the prosecution,  the Trial  Judge invited the parties to consider the framing of charges. 43 draft charges were  placed   for  his   consideration  on  behalf  of  the prosecution and  the learned  Trial Judge  framed 21 charges and recorded  an  order  of  discharge  in  respect  of  the remaining 22. At the instance of the complainant, Respondent No. 1,  the matter  came before  this  Court  in  appeal  on special leave  and a  two-Judge Bench of which I happened to be one, by judgment dated April 17, 1986, in Criminal Appeal No. 658  of 1985  [(1962) 2  SCC 716] set aside the order of discharge  in  regard  to  the  several  offences  excepting extortion and directed the learned Trial 77 Judge to  frame charges  for the  same. This Court requested the learned  Chief Justice  of  the  Bombay  High  Court  to nominate another  Judge to take up the matter from the stage at which  Mehta J.  had made the order of discharge. Shah J. came to  be  nominated  by  the  learned  Chief  Justice  to continue the  trial. By  order dated  July 24, 1986, Shah J. rejected the  application  of  the  accused  for  proceeding against the  alleged co-conspirators  by holding  that there had been a long delay, most of the prosecution witnesses had already been  examined and  that if the co-conspirators were then  brought   on  record,   a  de   novo  trial  would  be necessitated. The  appellant challenged the order of Shah J. by filing a special leave petition before this Court wherein he further  alleged that  the High Court had no jurisdiction to try the case. A two-Judge Bench, of which Mukherji J., my learned  brother,  was  a  member,  granted  special  leave, whereupon this  Criminal Appeal (No. 468 of 1986) came to be registered. The  Respondent No.  1 asked  for revocation  of special leave in Criminal Miscellaneous Petition No. 4248 of 1986. While  rejecting the  said revocation  application, by order dated October 29, 1986, the two-Judge Bench formulated several questions  that arose for consideration and referred the matter  for hearing  by a  Bench of  seven Judges of the Court. That  is how  this seven-Judge  Bench has  come to be constituted to hear the appeal.      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

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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. In support of  judicial opinion  for this view reference may be made to  the permanent  edition of  ’Words and  Phrases Vol. 23A’ at  page 164.  It would  be appropriate to refer to two small passages occurring at pages 174 and 175 of the Volume. At page  174,  referring  to  the  decision  in  Carlile  v. National 78 Oil & Development Co. it has been stated:                "Jurisdiction is  the authority  to hear  and           determine, and  in order  that it  may  exist  the           following are  essential: (1)  A court  created by           law, organized and sitting; (2) authority given it           by law to hear and determine causes of the kind in           question; (3)  power given  it by  law to render a           judgment  such   as  it  assumes  to  render;  (4)           authority over  the parties  to the  case  if  the           judgment is  to bind them personally as a judgment           in personam,  which is acquired over the plaintiff           by his  appearance and submission of the matter to           the court,  and is  acquired over the defendant by           his voluntary appearance, or by service of process           on him;  (5) authority  over the thing adjudicated           upon  its   being  located   within  the  court  s           territory, and by actually seizing it if liable to           be carried  away;  (6)  authority  to  decide  the           question  involved,   which  is  acquired  by  the           question being  submitted to it by the parties for           decision."      Article 139A  of the Constitution authorises this Court to transfer  cases from  a High  Court to itself or from one High Court  to another  and is,  therefore, not relevant for our purpose.  Section 406 of the Code empowers this Court to transfer cases and appeals by providing:                "(1) Whenever  it is  made to  appear to  the           Supreme Court  that an order under this section is           expedient for  the ends  of justice, it may direct           that any  particular case of 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  of  equal  or  superior           jurisdiction subordinate to another High Court.                (2) The  Supreme Court  may  act  under  this           section only  on the  application of the Attorney-           General of  India or  of a  party 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)...................".      The offences  alleged to  have been  committed  by  the accused here  are either  punishable under the Penal Code or under Act 2 of 1947, both 79 Of which could have been tried in an appropriate court under the Criminal  Procedure Code; but Parliament by the Criminal Law Amendment  Act 46  of 1952  (1952 Act for short) amended

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both the Penal Code as also the Criminal Procedure Code with a view  to providing  for a  more speedy  trial  of  certain offences. The relevant sections of the 1952 Act are sections 6, 7,  8, 9  and 10.  For convenience,  they  are  extracted below:                "6. Power  to appoint  special Judges (1) The           State  Government  may,  by  notification  in  the           Official Gazette,  appoint as  many special Judges           as may  be necessary for such area or areas as may           be  specified  in  the  notification  to  try  the           following offences, namely,                (a) an  offence punishable under section 161,                section  162,   section  163,   section  164,                section 165  or section  165A of  the  Indian                Penal Code  (45 of  1860) or section 5 of the                Prevention of  Corruption  Act,  1947  (2  of                1947);                (b) any  conspiracy to  commit or any attempt                to commit  or any  abetment  of  any  of  the                offences specified in clause (a).           (2)  A   persorn  shall   not  be   qualified  for           appointment as  a special  Judge  under  this  Act           unless he  is, or has been, a Sessions Judge or an           Additional Sessions Judge or an assistant Sessions           Judge under  the Code  of Criminal Procedure, 1898           (5 of 1898)."           "7.  Class   triable   by   Special   Judges   (1)           Notwithstanding anything  contained in the Code of           Criminal Procedure?  1898 (5  of 1898)  or in  any           other law  the offences  specified in  sub-section           (1) of  section 6  shall  be  triable  by  Special           Judges only;                (2) Every  offence specified  in  sub-section           (l) of  section 6  shall be  tried by  the Special           Judge for  the area within which it was committed.           Or where  there are  more Special  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 80           try any offence other than an offence specified in           section 6  A with which the accused may, under the           Code of  Criminal Procedure,  1898 (5 of 1898), be           charged at the same trial".                8. Procedure  and powers  of Special Judges (           1) A Special Judge may take cognizance of offences           without the  accused being  committed to  him  for           trial, and  in trying  the accused  persons, shall           follow the  procedure prescribed  by the  Code  of           Criminal Procedure,  1898 (5  of  1898),  for  the           trial of warrant cases by Magistrates.                (2) A  special Judge,  may, with  a  view  to           obtaining the  evidence of  any person supposed to           have been  directly or indirectly concerned in, or           privy to,  an offence,  tender a  pardon  to  such           person on  condition of his making a full and true           disclosure of  the whole  circumstances within his           knowledge relating  to the  offence and  to  every           other person  concerned, whether  as principal  or           abettor, in the commission thereof; and any pardon           so tendered  shall, for  the purposes  of sections           339 and  339-A of  the Code of Criminal Procedure,           1898 (5  of 1898), be deemed to have been tendered           under section 338 of that Code.

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              (3) Save  as provided in sub-section ( 1 ) or           sub-section (2),  the provisions  of the  Code  of           Criminal Procedure 1898 (5 of 1898), shall, so far           as they  are not inconsistent with this Act, apply           to the proceedings before a Special Judge; and for           the purposes  of the said provisions, the Court of           the Special Judge shall be deemed to be a Court of           Session trying cases without a jury or without the           aid of  assessors  and  the  person  conducting  a           prosecution before a Special Judge shall be deemed           to be a public prosecutor.                (3-A) In particular, and without prejudice to           the generality of the provisions contained in sub-           section (3),  the provisions  of sections  350 and           549 of  the Code of Criminal Procedure, 1898 (5 of           1898), shall,  so far  as may  be.  apply  to  the           proceedings before  a Special  Judge, and  for the           purposes of  the said  provisions a  special Judge           shall be deemed to be a Magistrate.                (4) A  special Judge may pass upon any person           convicted by  him any  sentence authorized  by law           for punish- 81           ment of  the  offence  of  which  such  person  is           convicted."                "9. Appeal  and revision-The  High Court  may           exercise, so  far as  they may  be applicable, all           the powers conferred by Chapters XXXI and XXXII of           the Code  of Criminal Procedure, I898 (1; of 1898)           on a  High Court  as if  the Court  of the special           Judge were a Court of Session trying cases without           a jury within the local limits of the jurisdiction           of the High Court. ’                "10. Transfer  of certain  pending  cases-All           cases triable  by a  special Judge under section 7           which, immediately before the commencement of this           Act, were  pending before any Magistrate shall, on           such commencement,  be forwarded  for trial to the           special  Judge   having  jurisdiction   over  such           cases." On the ratio of the seven-Judge Bench decision of this Court in the Slate of West Bengal v. Anwar Ali Sarkar, [ 1952] SCR 284 the  vires of  this Act  are not  open to challenge. The majority of  the learned  Judges in  Anwar Ali Sarkar’s case expressed the  view that  it was  open to the Legislature to set up  a special  forum for  expedient trial  of particular class of  cases. Section  7( l)  has clearly  provided  that offences specified  in sub-section (1) of section 6 shall be triable by  the Special  Judge only  and has  taken away the power of  the courts  established under the Code of Criminal Procedure to  try those  offences. Section  10  of  the  Act required all  pending cases  on the  date of commencement of the Act  to stand  transferred  to  the  respective  Special Judge. Unless  there be  challenge to the provision creating exclusive jurisdiction  of the Special Judge, the procedural law in  the Amending  Act is  binding on  courts as also the parties and  no court is entitled to make orders contrary to the law  which are  binding. As  long as  section 7  of  the Amending Act  of 1952  hold the field it was not open to any court including  the apex  Court to  act contrary to section 7(1) of the Amending Act.      The  power   to  transfer   a  case  conferred  by  the Constitution or  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

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principle that the Special Judge was a subordinate court for transferring a  case  from  one  special  Judge  to  another special Judge.  That would  he so  because such  a  transfer would not  contravene the  mandate of  section 7( l ) of the Amending Act of 1952 . While that may be so, the provisions for transfer, already referred to. do not authorise H 82 transfer of  a case  pending in the court of a special Judge first to  the Supreme  Court and  then to the High Court for trial. A  four Judge  Bench in  Raja Soap  Factory  v.  S.P. Santharaj, [1956] 2 SCR 800 was considering the jurisdiction of the  High Court to deal with a matter Shah J., as he then was, spoke for the court thus:           "But if  the learned  Judge, as  reported  in  the           summary of  the judgment,  was of the opinion that           the High  Court is  competent to  assume to itself           jurisdiction which  it does not otherwise possess,           merely because  an ’extra-ordinary  situation’ has           arisen, with  respect to the learned Judge, we are           unable to  approve of that view. By ’jurisdiction’           is  meant   the  extent  of  the  power  which  is           conferred upon  the court  by its  Constitution to           try a  proceeding; its exercise cannot be enlarged           because what  the learned  Judge  calls  an  extra           ordinary  situation   ’requires’  the   Court   to           exercise it".      Brother Mukharji  in his elaborate judgment has come to the conclusion  that the  question of  transferring the case from the  court of  the special  Judge to the High Court was not in issue before the five- Judge Bench. Mr. Jethmalani in course of the argument has almost accepted the position that this was  not asked  for on behalf of the complainant at the hearing of  the matter before the Constitution Bench. From a reading of the judgment of the Constitution Bench it appears that the  transfer was  a suo  motu direction  of the court. Since this  particular aspect  of the  matter had  not  been argued and  counsel did  not have an opportunity of pointing out the  legal bar  against transfer,  the learned Judges of this Court  obviously did  not  take  note  of  the  special provisions in section 7(1) of the 1952 Act. I am inclined to agree with  Mr. Rao  for Antulay  that if  this position had been appropriately  placed, the  direction for transfer from the court  of exclusive jurisdiction to the High Court would not  have  been  made  by  the  Constitution  Bench.  It  is appropriate to presume that this Court never’ intends to act contrary to law.      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 reagitated before the two-Judge Bench 83 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. Mr. Jethmalani pointed out to us in course of  his argument  that the  evidence that has already been collected  is actually almost three-fourths of what the prosecution had  to put  in. Court’s time has been consumed,

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evidence has  been collected  and parties  have been  put to huge expenses.  To entertain the claim of the appellant that the transfer  of the case from the Special Judge to the High Court was  without authority  of law  at this  point of time would necessarily  wipe out  the evidence  and set the clock back by  about four  years. It  may  be  that  some  of  the witnesses may  no longer be available when the de novo trial takes place.  Apart from  these features,  according to  Mr. Jethmalani to  say at this stage that the DIRECTION given by a five-Judge  Bench  is  not  binding  and,  therefore,  not operative will  shake the  confidence of the litigant public in the judicial process and in the interest of the system it should not  be done.  Long arguments were advanced on either side in  support of  their respective  stands-the  appellant pleading that  the direction for transfer of the proceedings from the  Special Judge  to the High Court was a nullity and Mr. Jethmalani  contending that the apex Court had exercised its powers  for expediting  the trial and the action was not contrary to  law. Brother  Mukharji  has  dealt  with  these submissions at  length and  I do  not find  any necessity to dwell upon  this aspect  in full  measure. In  the  ultimate analysis I  am satisfied that this Court did not possess the power to  transfer the proceedings from the Special Judge to the High  Court. 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.      Mr. Rao  for  Antulay  argued  at  length  and  Brother Mukharji has  noticed all  those  contentions  that  by  the change of the forum of the 84 trial the  accused has been prejudiced. Undoubtedly, by this process he misses a forum of appeal because if the trial was handled by  a Special  Judge, the  first appeal would lie to the High  Court and  further appeal  by special  leave could come before  this Court.  If the matter is tried by the High Court there  would be  only one  forum of  appeal being this Court, whether  as of  right or by way of special leave. The appellant has  also contended  that the  direction  violates Article 14  of the  Constitution because  he alone  has been singled out and picked up for being treated differently from similarly placed  accused persons.  Some  of  these  aspects cannot be  overlooked with  ease. 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.      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

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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. I  do not propose to delve into that aspect in my separate judgment.      It is a well-settled position in law that an act of the court should  not injure  any  of  the  suitors.  The  Privy Council in  the well-known  decision of  Alexander Rodger v. The Comptori  D’  Escompte  De  Paris,  [1871]  3  P.C.  465 observed:-                "One of  the first  and highest duties of all           courts is  to take  care that the act of the court           does no injury to any of the suitors, and when the           expression act  of the  court is used, it does not           mean merely  the act  of the  primary court, or of           any intermediate  court of  appeal, but the act of           the court  as a whole, from the lowest court which           entertains jurisdiction  over the  matter upto the           highest court  which finally disposes of the case.           It  is   the  duty   of  the  aggregate  of  those           Tribunals, if  I may  use the  expression, to take           care that no act of the court in the course of the           whole of the proceed 85           ings does an injury to the suitors in courts." Brother  Mukharji   has  also   reffered  to  several  other authorities which support this view.      Once it  is found  that the  order of  transfer by this Court  dated   16th  of   February,  1984,  was  not  within jurisdiction  by  the  direction  of  the  transfer  of  the proceedings made  by this  Court, the  appellant should  not suffer.      What remains  to be  decided is  the procedure by which the direction  of the  16th  of  February,  1984,  could  be recalled or  altered. 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. Mr. Rao had relied upon the  ratio in  the case  of Prem  Chand Garg  v. Excise Commissioner, U.P.,  Allahabad, [1963]  1 SCR  885.  Brother Mukharji has  dealt with  this case  at considerable length. This Court  was then  dealing with  an Article  32  petition which had  been filed  to challenge  the vires of rule 12 of order 35  of this  Court’s Rules. Gajendragadkar, J., as the learned Judge  then was,  spoke for himself and three of his learned brethren  including the  learned Chief  Justice. The facts of  the case  as appearing from the judgment show that there was  a judicial order directing furnishing of security of Rs.2,500 towards the respondent’s costs an(l the majority judgment directed                "In the  result, the  petition is allowed and           the  order   passed  against  the  petitioners  on           December 12,  1961, calling  upon them  to furnish           security of Rs.2,500 is set aside." Shah, J.  who wrote  a separate judgment upheld the vires of the rule  and directed  dismissal of  the petition. The fact that a judicial order was being made the subject matter of a petition under  Article  32  of  the  Constitution  was  not noticed and  whether such  a proceeding  was tenable was not

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considered. A  nine-Judge Bench  of  this  Court  in  Naresh Shridhar Mirajkar  & Ors.  v. State  of Maharashtra  & Anr., [1966] 3  SCR 744  referred to  the judgment  in Prem  Chand Garg’s case  (supra). Gajendragadkar, CJ., who delivered the leading and  majority judgment  stated at  page 765  of  the Reports:                "ln support  of his  argument that a judicial           decision 86           can be  corrected by this Court in exercise of its           writ  jurisdiction   under  Article   32(2),   Mr.           Setalvad has  relied upon another decision of this           Court in  Prem Chand  Garg v. Excise Commissioner,           U. P.  Allahabad  (supra)  .  In  that  case,  the           petitioner had  been required  to furnish security           for the  costs of  the respondent under rule 12 of           order 35  of  the  Supreme  Court  Rules.  By  his           petition filed under Article 32, he contended that           the rule  was invalid as it placed obstructions on           the fundamental  right guaranteed under Article 32           to move  the Supreme  Court for the enforcement of           fundamental rights.  This plea  was upheld  by the           majority decision  with the  result that the order           requiring him  to furnish security was vacated. In           appreciating the  effect of  this decision,  it is           necessary to  bear  in  mind  the  nature  of  the           contentions raised  before the Court in that case.           The rule itself, in terms, conferred discretion on           the court.  while dealing  with applications  made           under Article 32, to impose such terms as to costs           as to the giving of security as it thinks fit. The           learned  Solicitor   General  who   supported  the           validity of  the rule, urged that though the order           requiring security  to be deposited may be said to           retard or  obstruct the  fundamental right  of the           citizen guaranteed  by  Article  32(1),  the  rule           itself could  not  be  effectively  challenged  as           invalid, because  it was  merely discretionary; it           did not  impose an  obligation  on  the  court  to           demand  any  security;  and  he  supplemented  his           argument by  contending that  under Article 142 of           the Constitution,  the powers  of this  court were           wide  enough  to  impose  any  term  or  condition           subject to  which proceedings  before  this  Court           could be  permitted to  be conducted. He suggested           that the  powers of  this Court  under Article 142           were  not   subject  to   any  of  the  provisions           contained in  Part III including Article 32(1). On           the other  hand, Mr.  Pathak  who  challenged  the           validity of  the rule,  urged that though the rule           was in  form and  in substance  discretionary,  he           disputed the  validity of the power which the rule           conferred on  this Court  to demand security .. It           would thus  be seen  that the  main controversy in           the case  of Prem  Chand Garg  centered round  the           question  as  to  whether  Article  145  conferred           powers on  this Court  to make  rules, though they           may  be   inconsistent  with   the  constitutional           provisions prescribed  by Part  III. Once  it  was           held that  the powers  under Article 142 had to be           read subject not only to the fundamental 87           rights, but to other binding statutory provisions,           it became clear that the rule which authorised the           making of  the impugned  order was invalid. It was

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         in that context that the validity of the order had           to be incidentally examined. The petition was made           not  to  challenge  the  order  as  such,  but  to           challenge the validity of the rule under which the           order was  made. Once  a rule  was struck  down as           being invalid,  the order  passed under  the  said           rule had to be vacated. It is difficult to see how           this decision  can be  pressed into service by Mr.           Setalvad  in   support  of  the  argument  that  a           judicial order passed by this Court was held to be           subject to  the writ  jurisdiction of  this  Court           itself .. ". In view  of this decision in Mirajkar’s case (supra) it must be taken  as concluded  that judicial  proceedings  in  this Court are not subject to the writ jurisdiction thereof.      On behalf  of the  appellant,- at  one  stage,  it  was contended that  the appeal  may be  taken as a review. Apart from the  fact that  the petition  of review had to be filed within 30  days-and here there has been inordinate delay-the petition for  review had  to be placed before the same Bench and now  that two of the learned Judges of that Constitution Bench are  still available,  it must have gone only before a Bench of five with those two learned Judges. Again under the Rules of  the Court a review petition was not to be heard in Court and  was liable  to be  disposed of by circulation. In these circumstances.  the petition  of appeal  could not  he taken as  a review  petition. The question, therefore, to be considered now  is what  is the  modality to be followed for vacating the impugned direction.      This  being   the  apex  Court,  no  litigant  has  any opportunity of  approaching any higher forum to question its decisions. Lord Buckmaster in 1917 A.C. 170 stated:                "All  rules   of  court   are   nothing   but           provisions    intended     to    secure     proper           administration  of   justice.  It  is,  therefore,           essential that they should be made to serve and be           subordinate to that purpose." This Court  in Gujarat  v. Ram  Prakash, [1970]  2  SCR  875 reiterated the position by saying:                "Procedure is the handmaid and not a mistress           of 88           law, intended to subserve and facilitate the cause           of justice  and not to govern or obstruct it, like           all  rules  of  procedure,  this  rule  demands  a           construction which would promote this 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. This  is on the principle as indicated in Alexander Rodger’s case (supra). l am of the view that in the present  situation, the  Court’s inherent  powers can be exercised to  remedy the mistake. Mahajan, J. speaking for a four-Judge Bench  in Kishan Deo v. Radha Kissen, [ 1953] SCR 136, at page 153 stated:                "The Judge  had jurisdiction  to correct  his           own error  without entering  into a  discussion of           the grounds  taken by  the  decree-holder  or  the           objections raised by the judgment debtors . "      The Privy  Council in  Debi v.  Habib, ILR 35 All. 331, pointed out that an abuse of the process of the Court may be committed by the court or by a party. Where a court employed

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a procedure in doing something which it never intended to do and there  is an abuse of the process of the court it can be corrected. Lord Shaw spoke for the Law lords thus:                "Quite apart  from  section  151,  any  court           might have rightly considered itself to possess an           inherent power  to rectify  the mistake  which had           been inadvertently made." It was pointed out by the Privy Council in Murtaza v. Yasin, AIR 1916 PC 8:. that:                "Where substantial  injustice would othenwise           result, the court has, in their Lordships opinion,           an inherent  power to  set aside its own judgments           of condemnation  so as  to let in bona fide claims           by parties .. ". Indian authorities are in abundance to support the view that injustice done should be corrected by applying the principle actus curiae  neminem gravabit  an act  of the  court  shall prejudice no one. 89      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 rendered 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.      Mr. Jethmalani  had told  us during  arguments that  if there was interference in this case there was possibility of litigants thinking  that the  Court had  made a direction by going out  of its  way because  an influential  person  like Antulay was  involved. We  are sorry  that such a suggestion was made  before us  by a  senior counsel.  If a  mistake is detected and the apex Court is not able to correct it with a view to  doing justice  for fear of being misunderstood, the cause of  justice is  bound to suffer and for the apex Court the apprehension  would not  be a valid consideration. Today it is  Abdul Rehman  Antulay with a political background and perhaps some  status and  wealth but  tomorrow it can be any ill-placed citizen.  This Court  while administering justice does not  take into  consideration as  to who  is before it. Every litigant  is entitled to the same consideration and if an order  is warranted  in  the  interest  of  justice,  the contention of  Mr. Jethmalani  cannot stand  in the way as a bar to the making of that order.      There is  still another  aspect which  should be  taken note of.  Finality  of  the  orders  is  the  rule.  By  our

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directing recall  of an  order the well-settled propositions of law would not be set at naught. Such a 90 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.      I agree  with the  ultimate conclusion  proposed by  my earned brother Mukharji.      OZA, J.  I had  the opportunity  to go  through opinion prepared by  learned brother  Justice Mukharji  and I  agree with his  opinion. I  have  gone  through  these  additional reasons prepared  by learned  brother Justice R.N. Misra. It appears that the learned brother had tried to emphasise that even if  an error  is apparent  in a  judgment or  an  order passed by  this Court  it will  not be  open to  a  writ  of certiorari and  I have  no hesitation  in agreeing with this view expressed.  At the  same time  I have  no hesitation in observing that  there should  be no hesitation in correcting an error in exercise of inherent jurisdiction if it comes to our notice.      It is  clear from  the  opinions  of  learned  brothers Justice Mukharji  and Justice Misra that the jurisdiction to try a  case could  only be  conferred by  law enacted by the legislature and  this Court could not confer jurisdiction if it does  not exist  in law  and it  is this  error which  is sought to  be corrected.  Although it is unfortunate that it is being  corrected after  long lapse  of time. I agree with the opinion  prepared  by  Justice  Mukharji  and  also  the additional opinion prepared by Justice Misra .      RAY, J.  I have  the privilege  of  going  through  the judgment prepared  by learned  brother  Mukharji,  J  and  I agreed with  the same.  Recently, I have received a separate judgment from  brother R.N.  Misra, J and I have decipherred the same.      In both the judgments it has been clearly observed that judicial order  of this  court is  not amenable to a writ of certiorari for correcting 91 any error  in the  judgment. It  has also been observed that the jurisdiction  or power  to try  and decide  a  cause  is conferred on  the courts  by the Law of the Lands enacted by the Legislature or by the provisions of the Constitution. It has also  been highlighted  that the  court cannot  confer a jurisdiction on  itself which is not provided in the law. It has also  been observed  that the  act of the court does not injure any  of the  suitors. It  is for this reason that the error in question is sought to be corrected after a lapse of more than three years. I agree with the opinion expressed by Justice Mukharji  in the  judgment as well as the additional opinion given by Justice Misra in his separate judgment.      VENKATACHALIAH, J.  Appellant, a  former Chief Minister of Maharashtra,  is on  trial  for  certain  offences  under Sections  161,   165,  Indian   Penal  Code  and  under  the Prevention of  Corruption Act, 1947. The questions raised in

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this appeal are extra-ordinary in many respects touching, as they do,  certain matters  fundamental to  the  finality  of judicial proceedings.  It also  raises  a  question-of  far- reaching consequences-whether,  independently of  the review jurisdiction  under  Article  137  of  the  Constitution,  a different bench  of this  Court, could  undo the finality of earlier pronouncements  of  different  benches  which  have, otherwise, reached finality.      If the  appeal is  accepted, it  will  have  effect  of blowing-off, by  a side-wind as it were, a number of earlier decisions  of  different  benches  of  this  Court,  binding inter-parties,  rendered  at  various  stages  of  the  said criminal prosecution  including three  judgments of  5 judge benches of  this Court.  What  imparts  an  added  and  grim poignance to  the case is that the appeal, if allowed, would set to  naught all  the proceedings  taken  over  the  years before three  successive Judges  of the High Court of Bombay and in which already 57 witnesses have been examined for the prosecution-all these  done pursuant  to the direction dated 16.12.1984 issued  by a five judge Bench of this Court. This by itself  should be  no deterrant  for this Court to afford relief if  there has been a gross miscarriage of justice and if appropriate proceedings recognised by law are taken. Lord Atkin said  "Finality is  a good  thing, but  justice  is  a better". [See  60 Indian  Appeals 354 PC]. Considerations of finality are  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.      The words  of caution  of  the  judicial  committee  in Venkata Narasimha  Appa Row  v. The  Court of  Wards &  Ors. [1886] 1 ILR 660 (at page 664) are worth recalling: 92                "There is  a salutary maxim which ought to be           observed by  all courts  of  last  resort-interest           reipublicae  ut   sit  finis  litium.  Its  strict           observance may  occasionally entail  hardship upon           individual litigants,  but  the  mischief  arising           from that  source must be small in comparison with           the great  mischief which would necessarily result           from doubt  being thrown  upon the finality of the           decisions of such a tribunal as this."      (emphasis supplied).       2.  I have  had the  opportunity, and  the benefit, of reading in  draft the learned and instructive opinions of my learned Brothers Sabyasachi Mukharji J., and Ranganath Misra J.  They   have,  though  for  slightly  differing  reasons, proposed to  accept the appeal. This will have the effect of setting-aside five  successive earlier  orders of  different benches of  the  Court  made  at  different  stages  of  the criminal  prosecution,  including  the  three  judgments  of Benches of  five Judges  of this Court in R.S. Nayak v. A.R. Antulay, [1984] 2 SCR 495 and A . R. Antulay v. R. S. Nayak, [1984] 2  SCR 914 and R. S. Nayak v. A. R. Antulay, [1984] 3 SCR 412.      I have  bestowed a respectful and anxious consideration to the weighty opinion of my brothers with utmost respect, I regret to  have to  deny myself  the honour of agreeing with them in  the view  they take  both of  the problem  and  the solution that has commended itse1f to them. Apart from other things, how  can the  effect and  finality of  this  Court’s order dated  17.4.1984 in  Writ Petition  No. 708 of 1984 be unsettled in  these proceedings?  Admittedly, this order was made after  hearing and does not share the alleged vitiating

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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 the 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.      Ranganath Misra  J. if  I may  say so with respect, has rightly recognised these imperatives:                "It is  time to sound a note of caution. This           Court 93           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 rendered 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           over-rule  the   decision   of   a   small   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."       Learned  brother, however,  hopes this case to be more an exception than the Rule C           "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. "       3.  A brief  advertence to  certain antecedent  events which constitute  the back-drop for the proper perception of the core-issue  arising in  this appeal  may not  be out  of place:      Appellant was the Chief Minister of Maharashtra between 9.6.1980 and 12.1.1982 on which latter date he resigned as a result of  certain adverse  findings made  against him  in a Court  proceeding.   On  9.8.1982,  Ramdas  Srinivas  Nayak, respondent No.  1, with  the sanction  of  the  Governor  of Maharashtra, accorded  on 28.7.1982,  filed in  the Court of Special-Judge, Bombay,  a  criminal  Case  No.  24  of  1982 alleging  against   the  appellant  certain  offences  under Section 161  and 165  of Indian  Penal Code and Section 6 of the  Prevention  of  Corruption  Act,  1947,  of  which  the Special-Judge took cognisance.      Appellant questioned  the jurisdiction of Special Judge to take cognisance of those offences on a private complaint. On 20.10.1982,  the Special  Judge over-ruled the objection. On 7.3.1983,  the High  Court dismissed appellant’s revision petition in  which  the  order  of  the  Special  Judge  was assailed. The  criminal case thereafter stood transferred to another Special  Judge, Shri  R.B. Sule.  Appellant did  not accept the  order of  the High  Court dated 7.3.1983 against which he 94 came up  in appeal  to  this  court,  by  Special-leave,  in

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Criminal appeal No. 347 of 1983. During the pendency of this appeal,  however,  another  important  event  occurred.  The Special Judge, Shri R.B. Sule, by his order dated 25.7.1983, discharged the  appellant, holding  that the prosecution was not maintainable  without the  sanction of  the  Maharashtra Legislative Assembly, of which the appellant continued to be a member,  notwithstanding his ceasing to be Chief Minister. Respondent No.  1 challenged  this order  of discharge  in a Criminal Revision  Petition No.  354 of 1982 before the High Court of  Bombay. Respondent  No. 1  also  sought,  and  was granted, special-leave  to appeal against Judge Sule’s order directly to  this court  in Criminal appeal No. 356 of 1983. This  Court   also  withdrew  to  itself  the,said  criminal revision application No. 354 of 1982 pending before the High Court. All the three matters-the two appeals (Crl. A. 347 of 1983 and  356 of  1983) and  Criminal Revision  Petition  so withdrawn to this Court-were heard by a five Judge bench and disposed of by two separate Judgments dated 16.2.1984.      By Judgment  in Crl. appeal No. 356 of 1983 R. S. Nayak v. A. R. Antulay, [1984] 2 SCR 495 this Court, while setting aside the  view of  the Special  Judge that  sanction of the Legislative Assembly  was necessary,  further  directed  the trial of  the case by a Judge of the Bombay High Court. This Court observed  that despite  lapse of  several years  after commencement of  the prosecution  the case had "not moved an inch  further",   that  "expeditious   trial  is   primarily necessary in  the interest  of the  accused and  mandate  of Article 21", and that "therefore Special case No. 24 of 1982 and Special  Case No.  3 of  1983 pending  in the  Court  of Special Judge,  Greater Bombay, Shri R.B. Sule" be 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. The Judge so designated was also  directed   to  dispose   of  the  case  expeditiously, preferably "by holding the trial from day-to-day".      Appellant, in  these proceedings,  does not  assail the correctness of  the view  taken by  the 5 Judge Bench on the question  of   the  sanction.  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 effctuation  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 here to advert to the reasons for the change of 95 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 appellant’s remedy, if any was to  seek a  review of  the directions dated 16.2.1984 at the hands of this Court.      Learned Judge  also pointed  out  in  his  order  dated 14.3.1984  what,  according  to  him,  was  the  true  legal position permitting  the  transfer  of  the  case  from  the Special-Judge to  be tried  by the High Court in exercise of its extra-ordinary  original criminal  jurisdiction. In  his order dated 16.3.1984, Khatri J. Observed:           "..... Normally  it is  the exclusive jurisdiction           of  a   Special  Judge  alone  to  try  corruption           charges. This position flows from Section 7 of the

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         1952 Act.  However, this  does not mean that under           no  circumstances  whatever,  can  trial  of  such           offences be  not tried  by  a  Court  of  superior           jurisdiction than  the Special  Judge. I  have  no           hesitation in contemplating at three situations in           which a  Court of  Superior jurisdiction could try           such offence .. "           "8. The  third situation can be contemplated under           the Code  of Criminal  Procedure  itself  where  a           Court of superior jurisdiction may have to try the           special cases.  Admittedly, there  are no  special           provisions in the 1952 Act or 1947 Act relating to           the transfer  of special  cases from  one Court to           the other.  So by virtue of the combined operation           of Sec.  8(3) of  the 1952 Act and Section 4(2) of           the Code  of Criminal  Procedure, the  High  Court           will have  jurisdiction under  Sec 407 of the Code           in  relation   to  the   special  cases  also.  An           examination  of  the  provisions  of  Section  407           leaves  no   doubt  that   where   the   requisite           conditions are  fulfilled, the  High Court will be           within its  legitimate powers  to  direct  that  a           special case  be transferred  to and  tried before           itself."      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  taken by  Khatri  J.  as  to jurisdiction which in substance meant 96 a challenge  to the  original order  dated 16.2.1984 made by this court.  A A division Bench consisting of D.A. Desai and A.N. Sen, JJ. dismissed the writ petition on 17.4.1984. Sen, J. speaking for the bench said:           "In my  view, the  writ petition  challenging  the           validity of  the order and judgment passed by this           Court as nullity or otherwise is incorrect, cannot           be entertained.  I wish  to make it clear that the           dismissal of this writ petition will not prejudice           the right  of the petitioner to approach the Court           with an appropriate review petition or to file any           other application  which he may be entitled in law           to file."      (emphasis supplied)      [A.R. Antulay v. Union, []984] 3 SCR 482]      This order  has become  final. Even  then no review was sought.      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. Antulay, [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  needless  to  emphasise,  has  the effect of  setting at  naught this pronouncement of the five Judge Bench  as well.  The five  Judge bench  considered the legal foundations of the power to transfer and said:                " .......  To be  precise, the  learned Judge           has to  try the  case according  to the  procedure           prescribed for  cases instituted otherwise than on           police report  by  Magistrate.  This  position  is           clearly an  unambiguous in  view of  the fact that

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         this Court  while allowing  the appeal was hearing           amongst others  Transferred case  No. 347  of 1983           being the Criminal Revision Application No. 354 of           1983  on  the  file  of  the  High  Court  of  the           Judicature at  Bombay against  the  order  of  the           learned Special  Judge, Shri R.B. Sule discharging           the accused.  If the criminal revision application           was not  withdrawn to  this Court,  the High Court           while hearing  criminal revision application could           have  under   sec.  407(8),   Code   of   Criminal           Procedure, 1973,  would have  to follow  the  same           procedure which the Court of Sr" 97           Judge would  have followed  if the  case would not           have been so transferred ..       (emphasis supplied)      According to  the Bench,  the High  Court’s power under Section 407,  Criminal Procedure  Code  for  withdrawing  to itself the  case from  a Special  Judge, who  was, for  this purpose, a Sessions Judge, was preserved notwithstanding the exclusivity of  the jurisdiction  of the  Special Judge  and that the  Supreme Court  was entitled  to and  did  exercise that, power  as the  Criminal Review  application pending in the High  Court had been withdrawn to the Supreme Court. The main   basis   of   appellant’s   case  is  that all this is per-incurriam, without jurisdiction and a nullity .      In the  meanwhile Mehta  J. was  nominated by the Chief Justice of the High Court in place of Khatri. J. In addition to the  17 witnesses  already examined  by Khatri J. 41 more witnesses were  examined for the prosecution before Mehta J. of the  43 charges  which the  prosecution  required  to  be framed in  the case,  Mehta J.  declined to frame charges in respect of  22 and discharged the appellant of those alleged offences. Again respondent No. 1 came up to this Court which by its  order dated  17.4.1986 in Criminal Appeal No. 658 of 1985, [reported  in (1985) 2 SCC 716] set aside the order of discharge in regard to 22 offences and directed that charges be drawn  in respect of them. This Court also suggested that another Judge be nominated to take up the case. It is, thus, that Shah J came to conduct the further trial.      4. I  may now  turn to  the occasion  for  the  present appeal. In  the  further  proceedings  before  Shah  J.  the appellant    contended     that    some   of   the   alleged co-conspirators, some  of whom  had already been examined as prosecution witnesses,  and some  others proposed  to be  so examined should  also be  included in  the array  of accused persons. This prayer, Shah J had no hesitation to reject. It is against  this order  dated  24.7.1986  that  the  present appeal  has  come  up.  With  this  appeal  as  an  opening, appellant has raised directions of the five Judges Bench, on 16.2.1984; of  the serious violations of his constitutional- rights; of  a hostile  discrimination of  having to  face  a trial before  a Judge  of the  High  Court  instead  of  the Special-Judge, etc.  A Division  Bench  consisting  of  E.S. Venkataramiah and  Sabyasachi Mukharji  JJ. in  view of  the seriousness of  the grievances aired in the appeal, referred it to be heard by a bench of seven Judges.      5.  The  actual  decision  of  Shah  J  in  the  appeal declining to pro- 98 ceed against  the alleged  co-conspirators  is  in  a  short compass. But  the appeal itself, has assumed a dimension far beyond the  scope of  the order  it seeks  to be  an  appeal against. The  appeal has become significant not for its pale determined by  the order  under appeal;  but  more  for  the

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collateral questions  for which  it has  served as  a spring board in this Court.      6. Before  going into these challenges, it is necessary to say  something on  the merits  of the  order under appeal itself. An accused person cannot assert any right to a joint trial with  his co-accused.  Normally it is the right of the prosecution to  decide whom it prosecutes. It can decline to array a  person as a co-accused and, instead, examine him as a witness for the prosecution. What weight is to be attached to that  evidence, as  it may  smack of  the testimony  of a guilty partner, in crime, is a different matter. Prosecution can enter  Nolle proseque against any accused-person. It can seek to  withdraw a  charge against an accused person. These propositions are  too well  settled to  require any  further elaboration. Suffice  it to say that the matter is concluded by  the   pronouncement  of   this  Court   in  Choraria  v. Maharashtra, [1968] 2 SCR 624 where Hidayathullah J referred to the argument that the accomplice, a certain Ethyl Wong in that case, had also to be arrayed as an accused and repelled it, observing:                "...  Mr.   Jethmalani’s  argument  that  the           Magistrate should  have promptly  put her  in  the           dock  because   of   her   incriminating   answers           overlooks S. 132 (proviso)".                "...  The   prosecution  was   not  bound  to           prosecute her,  if they  thought that her evidence           was necessary  to break  a smugglers’  ring. Ethyl           Wong was  prosecuted by  S. 132  (proviso) of  the           Indian Evidence  Act even  if  she  gave  evidence           incriminating herself. She was a competent witness           although her  evidence could only be received with           the caution  necessary in  all accomplice evidence           ... "      On this  point, really,  appellant cannot  be heard  to complain. Of  the so  called co-conspirators  some have been examined  already  as  prosecution  witnesses;  some  others proposed to be so examined; and two others, it would appear, had died  in the interregnum. The appeal on the point has no substance and  would require  to be  dismissed. We  must now turn to the larger issue raised in the appeal.      7. While  Shri P.P. Rao, learned Senior Counsel for the appel- 99 lant, handling  an otherwise  delicate and  sensitive issue, deployed all  the legal tools that a first rate legal-smithy could design,  Shri Ram  Jethmalani, learned Senior Counsel, however, pointed  out the  impermissibility both as a matter of law and propriety of a different bench embarking upon the present exercise  which, in effect, meant the exertion of an appellate and  superior jurisdiction  over the  earlier five Judge Bench and the precedential problems and anomalies such a course would create for the future.      8. The  contentions raised  and urged  by Shri P.P. Rao admit of being summarised and formulated thus:           (a) That Supreme Court has, and can, exercise only           such jurisdiction  as is  invested in  it  by  the           Constitution and  the laws;  that even  the  power           under Article  142(1) is  not unfettered,  but  is           confined within  the  ambit  of  the  jurisdiction           otherwise available to it; that the Supreme Court,           like any  other court,  cannot make any order that           violates  the   law;  that  Section  7(1)  of  the           Criminal Law  (Amendment) Act,  1952,  (1952  Act)           envisages and  sets-up  a  special  and  exclusive           forum for  trial of  certain  offences;  that  the

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         direction for  trial of  those offences by a Judge           of the  High Court  is wholly without jurisdiction           and void; and that ’Nullity’ of the order could be           set up  and raised whenever and wherever the order           is sought to be enforced or effectuated;           (b) That in directing a Judge of the High Court to           try the case the Supreme Court virtually sought to           create a  new jurisdiction  and a  new  forum  not           existent  in   and  recognised  by  law  and  has,           accordingly, usurped Legislative powers, violating           the basic  tenets of the doctrine of separation of           powers;           (c) That  by being  singled out  for trial  by the           High Court,  appellant is  exposed  to  a  hostile           discrimination,  violative   of  his   fundamental           rights  under  Articles  14  and  21  and  if  the           principles in  State of  West Bengal  v. Anwar Ali           Sarkar, [1952]  SCR 284.  The  law  applicable  to           Anwar Ali  Sarkar should  equally apply  to  Abdul           Rahman Antulay.           (d) That  the directions  for transfer were issued           without affording  an opportunity to the appellant           of being hear,, and therefore void as violative of           Rules of Natural Justice. 100           (e) That  the transfer  of the  case to  the  High           Court deprived  appellant  of  an  appeal,  as  of           right, to  the High Court. At least one appeal, as           of right is the minimal constitutional safeguard.           (f) That  any order  including a  judicial  order,           even if it be of the highest Court, which violates           the fundamental  rights of  a person  is a nullity           and can be assailed by a petition under Article 32           of the Constitution on the principles laid down in           Prem  Chand  Garg  v.  Excise  Commissioner,  UP.,           [1963] J 1 SCR 885.           (g) That, at all events, the order dated 16.2.1984           in so  far as the impugned direction is concerned,           is  per   incuriam  passed  ignoring  the  express           statutory provisions  of Section  7(1) of Criminal           Law  (Amendment)   Act,  1952,   and  the  earlier           decision of this Court in Gurucharan Das Chadha v.           State of Rajasthan, [1966] 2 SCR 678.           (h) That the direction for transfer of the case is           a clear  and manifest case of mistake committed by           the Court  and that when a person is prejudiced by           a mistake  of Court it is the duty of the Court to           correct its  own  mistake:  Actus  Curiae  Nominem           Gravabit.      9. Courts  are as  much human institutions as any other and share  all  human  susceptibilities  to  error.  Justice Jackson said:           "......  Whenever   decisions  of  one  Court  are           reviewed by  another, a  percentage  of  them  are           reversed. That  reflects a  difference in  outlook           normally  found   between   personnel   comprising           different courts.  However, reversal  by a  higher           court is  not proof that justice is thereby better           done. There  is no  doubt that  if  there  were  a           super-Supreme Court  a substantial  proportion  of           our  reversals  of  state  Courts  would  also  be           reversed.  We   are  not   final  because  we  are           infallible, but  we are infallible only because we           are final . "      (See Brown v. Allen, [1944] US 443 at 540.

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    In Broom  v. Cassel,  [1972] AC  1027  (at  1131)  Lord Diplock said: 101           " ... It is inevitable in a hierarchical system of           courts that  there are  decisions of  the  supreme           appellate  tribunal   which  do  not  attract  the           unanimous  approval   of  all   members   of   the           judiciary.  When  I  sat  in  Court  of  Appeal  I           sometimes thought  the House of Lords was wrong in           over ruling  me. Even  since that  time there have           been occasions, of which the instant appeal itself           is  one,   when,  alone  or  in  company,  I  have           dissented from  a decision of the majority of this           House. But  the  judicial  system  only  works  if           someone is  allowed to  have the  last word and if           that last word, once spoken, is loyally accepted."      Judge Learned  Hand, referred  to as  one of  the  most profound legal  minds in  the jurisprudence  of the  English speaking  world,   commended  the  Cromwellian  intellectual humility and desired that these words of Cromwell be written over the  portals of  every church,  over court house and at every  cross   road   in   the   nation:   "I   beseech   ye ....................... think that ye may be mistaken."      As a  learned author  said, while  infallibility is  an unrealisable 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.      10. Re:  Contentions (a)  ar.d (b):  In the  course  of arguments we  were treated  to a  wide ranging,  and no less interesting, submissions  on the  concept of  "jurisdiction" and "nullity"  in relation  to  judicial  orders.  Appellant contends that the earlier bench had no jurisdiction to issue the impugned directions which were without any visible legal support,  that   they  are   ’void’  as   violative  of  the constitutional-rights  of   the  appellant,   and,  also  as violating the  Rules  of  natural  justice.  Notwithstanding these appeal  to high-sounding  and emotive  appellateous; I have serious  reservations about  both the permissibility-in these 102 proceedings-of  an   examination  of  the  merits  of  these challenges. Shri  Rao’s appeal to the principle of "nullity" and reliance  on  a  collateral  challenge  in  aid  thereof suffers from  a basic  fallacy as to the very concept of the jurisdiction of  superior courts.  In relation to the powers of  superior   courts,  the   familiar  distinction  between jurisdictional issues and adjudicatory issues-appropriate to Tribunals of  limited jurisdiction,-has  no place.  Before a superior court there is no distinction in the quality of the decision-making-process respecting  jurisdictional questions on the one hand and adjudicatory issues or issues pertaining to the merits, on the other.

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    11. 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. In  Malkarjun v. Narahari, [1900] 27 I.A. 216  the executing Court had quite wrongly, held that a particular person  represented the  estate of  the  deceased Judgment-debtor and  put the property for sale in execution. The judicial committee said:           "In  doing   so,  the  Court  was  exercising  its           jurisdiction. It  made a  sad mistake, it is true;           but a  court has  jurisdiction to  decide wrong as           well as  right. If  it decides  wrong, the wronged           party can  only take  the course prescribed by law           for setting  matters right  and if  that course is           not taken  the decision,  however wrong. cannot be           disturbed."      In the course of the arguments there were references to the Anisminic  case. In  my view,  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 all  be said  to have  been reached without jurisdiction,  susceptible to be ignored or to admit of any collateral-attack. Otherwise, the adjudications of 103 superior  courts  would  be  held-up  to  ridicule  and  the remedies generally  arising from and considered concomitants of  such  classification  of  judicial-errors  would  be  so seriously abused  and expanded as to make a mockery of those foundational  principles   essential  to  the  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.  Holdsworth (History  of English Law  vol. 6  page 239)  refers  to  the  theoritical possibility of  a judgment  of  a  superior  court  being  a nullity if  it had  acted coram-non-  judice. But  who  will decide that  question if  the infirmity stems from an act of the Highest Court in the land? It was observed:      ".  .   .  It   follows  that   a  superior  court  has jurisdiction to  determine its  own jurisdiction;  and  that therefore an  erroneous conclusion  as to  the ambit  of its jurisdiction is merely an abuse of its jurisdiction, and not an act outside its jurisdiction ......                " .  . .  ln the second place, it is grounded           upon the  fact  that,  while  the  judges  of  the           superior courts are answerable only to God and the           king,  the  judges  of  the  inferior  courts  are           answerable to  the superior  courts for any excess           of jurisdiction . . . " E                "Theoritically the  judge of a superior court           might be  liable if he acted coram non judice; but

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         there  is   no  legal  tribunal  to  enforce  that           liability. Thus both lines of reasoning led to the           same conclusion-the  total immunity  of the judges           of the superior courts." F      Rubinstein in his "Jurisdiction and Illegality" says:                " ....  In practice,  every  act  made  by  a           superior court  is always  deemed  valid  (though,           possibly, voidable)  wherever it  is relied  upon.           This exclusion  from  the  rules  of  validity  is           indispensable.  Superior  courts  knew  the  final           arbiters of  the validity  of acts  done by  other           bodies; their  own decisions  must be  immune from           collateral attack  unless confusion  is to  reign.           The superior  courts decisions  lay down the rules           of validity  but are not governed by these rules."           (See P. 12) 104      A clear  reference to inappositeness and limitations of the   Anisminic Rule  in relation to Superior Court so to be found  in   the  opinion   of  Lord   Diplock  in  Re  Racal Communications Ltd. [ 198() 2 All E.R. 634], thus:                "There  is  in  my  view,  however,  also  an           obvious distinction between jurisdiction conferred           by  a  statute  on  a  court  of  law  of  limited           jurisdiction to  decide a defined question finally           and conclusively  or unappealably,  and a  similar           jurisdiction conferred  on the  High  Court  or  a           judge of  the High  Court acting  in his  judicial           capacity. The High Court is not a court of limited           jurisdiction and  its constitutional role includes           the interpretation  of written laws. There is thus           no room  for the inference that Parliament did not           intend the  High Court  or the  judge of  the High           Court  acting  in  his  judicial  capacity  to  be           entitled and,  indeed, required  to  construe  the           words  of   the  statute  by  which  the  question           submitted to  his decision  was defined.  There is           simply  no   room   for   error   going   to   his           jurisdiction, or as is conceded by counsel for the           respondent, is there any room for judicial review.           Judicial review  is  available  as  a  remedy  for           mistakes  of  law  made  by  inferior  courts  and           tribunals only.  Mistakes of law made by judges of           the High  Court acting  in their judicial capacity           as such  can be  corrected only by means of appeal           to an  appellate court  and if,  as in the instant           case, the  statute provides that the judge’s deci-           sion shall  not  be  appealable,  they  cannot  be           corrected at all." [See page 639 & 640l. In the same case, Lord Salmon, said:                "The  Court   of  Appeal,   however,   relied           strongly on  the decision of your Lordship’s House           in  Anisminic   Ltd.   v.   Foreign   Compensation           Commission, [1969]  1 All  ER 209.  That  decision           however was  not, in my respectful view in any way           relevant to the present appeal. It has no applica-           tion to  any  decision  or  order  made  at  first           instance in  the High  Court  of  Justice.  It  is           confined  to   decisions  made  by  commissioners,           tribunals or  inferior courts  which  can  now  be           reviewed by the High Court of Justice, just as the           decision of inferior courts used to be reviewed by           the  old   Court  of   King’s  Bench   under   the           prerogative writs. If and when 105

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         any such  review is made by the High Court. it Can           be A appealed to the court of Appeal and hence, by           lave, to your Lordship’s House. [See page 6411.      Again in  Issac v. Robertson, [1984] 3 All E.R. 140 the Privy Council  reiterated the  fallacy of  speaking  in  the language of  Nullity void, etc., in relation to Judgement of superior courts.  lt Was  pointed out  that it could only be called ’irregular’. Lord Diplock observed:           "Their  L,ordships   would,  however,   take  this           opportunity to  point  out  that  in  relation  to           orders of  a court of unlimited jurisdiction it is           misleading to  seek to  draw distinctions  between           orders that  are. "  void’ in  the sense that they           can be  ignored with  impunity by those persons to           whom they  are  addressed,  and  orders  that  arc           "voidable’ and  may be  enforced unless  and until           they are  set aside.  Dicta  that  refers  to  the           possibility of  these  being  such  a  distinction           between orders to which the description ’void’ and           ’void. able’ respectively have been applied can be           found  in   the  opinion  given  by  the  judicial           committee of  the Privy Council in Marsh v. Marsh,           [1945] AC  271 at  284 and Maxfoy v. United Africa           Co. Ltd., [19611] All EWR 1169. [1962] AC 152, but           in neither  of those appeals not in any other case           to which  counsel has  been able  to  refer  their           Lordships has  any order  of a  court of unlimited           jurisdiction been  held to  fall in  a category of           court orders  that can  simply be  ignored because           they are  void ipso  facto without there being any           need for proceeding to have them set aside.The           cases that  are referred  to in these dicta do not           support the proposition that there is any category           of orders  of a court of unlimited jurisdiction of           this kind .. ’ F                "The contrasting  legal concepts  of voidness           and voidability  form part  of the  English Law of           contract. They  are inapplicable to orders made by           a court of unlimited jurisdiction in the course of           contentious litigation.Such  an  order  is  either           irregular or regular. if it is irregular it can be           sel aside by the court that made it on application           to High court. if it is regular it can only be set           aside by  an appellate court on appeal if there is           one to which an appeal lies. "[See page 143] Superior courts apart, even the ordinary civil courts of the land 106 have  jurisdiction   to  decide   questions  of   their  own jurisdiction. This  Court, in  the context  of the  question whether the  provisions of  Bombay Rents,  Hotel and Lodging House Rates  Control Act,  1947, was  not attracted  to  the premises  in   question  and   whether,  consequently,   the exclusion under  Section 28 of that Act, of the jurisdiction of all  courts other  than the  Court  of  Small  Causes  in Greater Bombay did not operate, observed:                "... The  crucial point,  therefore, in order           to determine  the question  of the jurisdiction of           the City  Civil Court to entertain the suit, is to           ascertain whether,  in view  of Section  4 of  the           Act, the Act applies to the premises at all. If it           does, the City Civil Court has no jurisdiction but           if it  does not then it has such jurisdiction. The           question at  once arises  as to  who is  to decide           this point in controversy. It is well settled that

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         a Civil  Court has  inherent power  to decide  the           question of  its own  jurisdiction, although, as a           result of its enquiry, it may turn out that it has           no jurisdiction  over the  suit.  Accordingly,  we           think, in  agreement with  High  Court  that  this           preliminary  objection  is  not  well  founded  in           principle or  on authority  and should  be  rejec-           ted." [See  AIR 1953  (SC) 16  at 19.  Bhatia  Co-           operative Housing Society Ltd. v. D. C. Patel]      It  would,  in  my  opinion,  be  wholly  erroneous  to characterise the  directions issued  by the five Judge bench as a  nullity, amenable  to be  ignored or so. declared in a collateral attack.      12. A  judgment, inter-parties,  is final and concludes the parties.  In Re  Hastings (No.  3) [ 1959] l All ER 698, the question  arose whether despite the refusal of a writ of Habeas Corpus  by a  Divisional Court  of the Queen’s bench, the petitioner  had, yet,  a right  to apply for the writ in the Chancery  Division. Harman  J. called the supposed right an illusion:                "Counsel  for   the  applicant,   for   whose           argument I for one am much indebted, said that the           clou of  his case  as this,  that there  still was           this right: to go from Judge to Judge, and that if           that were not so the whole structure would come to           the ground ...."                "I think  that the  Judgment of  the  Queen’s           bench Divisional Court did make it clear that this           supposed right 107           was an  illusion.  If  that  be  right,  the  rest           follows. No  body doubts that there was a right to           go from  court to  court, as  my Lord  has already           explained. There are no different courts now to go           to. The  courts that used to sit in banc have been           swept away  and their  places taken  by Divisional           Courts,  which   are  entirely  the  creatures  of           statute and  rule.  Applications  for  a  writ  of           habeas  corpus   are  assigned   by  the  rule  to           Divisional Courts  of the  Queen’s Bench Division,           and that  is the  only place  to which a applicant           may go ...... " [See page 701]      In Daryao  v. State  of U.  P., [1962] 1 SCR 574 it was held:                "It is in the interest of the public at large           that a  finality  should  attach  to  the  binding           decisions  pronounced   by  courts   of  competent           jurisdiction,  and   it  is  also  in  the  public           interest that  individuals should-  not  be  vexed           twice over  with the  same kind  of litigation. If           these two  principles form  the foundation  of the           general  rule   of  res-judicata  they  cannot  be           treated as  irrelevant  or  inadmissible  even  in           dealing with fundamental rights in petitions filed           under Article 32". [See page 583].      In Trilok  Chand v.  H. B.  Munshi, [1969]  2  SCR  824 Bachawat J.  recognised the  same limitations even in matter pertaining to the conferment of fundamental rights.                "...  The   right  to  move  this  Court  for           enforcement of fundamental rights is guaranteed by           Article 32.  The writ under Article 32 issues as a           matter of  course if  a breach  of  a  fundamental           right is  established. But this does not mean that           in giving  relief under  Article 32 the Court must           ignore  and   trample  under   foot  all  laws  of

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         procedure, evidence.  limitation, res judicata and           the like ....                "....  the   object  of   the   statutes   of           limitation  was   to  give  effect  to  the  maxim           ’interest reipublicate  ut sit  finislitium’  (Cop           Litt 303)-the  interest of the State requires that           there should be a limit to litigation. The rule of           res judicata  is founded  upon the  same  rule  of           public policy ...... " [See page 842 and 843]      It is to be recalled that an earlier petition, W.P. No. 7()8 of 1984 108 under Article 32 moved before this Court had been dismissed, reserving leave to the appellant to seek review.      The words  of Venkataramiah  J in  Sheonandan Paswan v. State of  Bihar, [1987]1  SCC 288  at 343  are apt  and  are attracted to the present case:                "The reversal of the earlier judgment of this           court by  this process  strikes at the finality of           judgments of  this Court  and would  amount to the           abuse of the power of review vested in this Court,           particularly in  a criminal  case. It may be noted           that no  other court in the country has been given           the power of review in criminal cases. I am of the           view that  the majority  judgment of Baharul Islam           and R.B.  Misra, JJ.  should  remain  undisturbed.           This case  cannot  be  converted  into  an  appeal           against the  earlier decision  of  this  Court.  "           (Emphasis supplied)      13. 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 Sec.  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.  Even  in  regard  to  the country’s fundamental-law  as a Chief Justice of the Supreme Court of  the United  States said:  "but the Constitution is what the judges say it is". In Thomas v. Collins, 323 (1945) US 516 it was said:           "The case  confronts us  again with  the duty  our           system places  on this  Court  to  say  where  the           individual’s freedom  ends and  the State’s  power           begins. Choice  on that  border, now as always is,           delicate ...."      I am  afraid  appellant  does  himself  no  service  by resting his case on these high conceptual fundamentals.      14. 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 un-do the finalily of the decisions of 109 Other division  benches. If  the decision  suffers  from  an error the only A way to correct it, is to go in Review under Article 137  read with  order 40 Rule I 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. The reported decisions on the review power under the (Civil Procedure Code when it had a similar  provision for  the same judges hearing the matter demonstrate the high purpose sought to be served thereby.

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    15. In  regard to  the concept  of Collateral Attack on Judicial  Proceedings  it  is  instructive  to  recall  some observations of  Van Fleet  on  the  limitations  and  their desirability-on such actions.           "one who  does not  understand  the  theory  of  a           science,  who  has  no  clear  conception  of  its           principles, cannot  apply it with certainty to the           problems; it  is adapted  to solve.  In  order  to           understand  the   principles   which   govern   in           determining the  validity  of  RIGHTS  AND  TITLES           depending  upon   the  proceedings   of   judicial           tribunals,  generally   called  the   doctrine  of           COLLATERAL ATTACK  ON JUDG-MENTS,  it is necessary           to have  a  clear  conception  of  the  THEORY  OF           JUDICIAL PROCEEDINGS .....           " ..  And as  no one  would  think  of  holding  a           judgmenf of  the court  of last resort void if its           jurisdiction were debatable or even colorable, the           same rule  must be applied to the judgments of all           judicial tribunals.  This is  the true  theory  of           judicial action  when viewed  collaterally. If any           jurisdictional question is debatable or colorable,           the tribunal  must decide  it;  and  an  erroneous           conclusion can ony be corrected by some proceeding           provided by  law for so doing, com- monly called a           Direct Attack.  It is  only where  it can be shown           lawfully, that  some matter  or thing essential to           jurisdiction is  wanting, that  the proceeding  is           void, collaterally.                It is  the duty  of the  courts to  set their           faces against  all collateral assaults on judicial           proceedings for  two reasons,  namely: First.  Not           one case in a hundred has any merits in it           "... Second.  Thc second  reason  why  the  courts           should  reduce   the  chances   for  a  successful           collateral attack to the H 110           lowest minimum  is, that  they  bring  the  courts           themselves into  disrepute. Many  people look upon           the courts  as placed where jugglery and smartness           are substituted for justice           "...... such  things tend  to weaken law and order           and  to  cause  men  to  settle  their  rights  by           violence. For  these reasons,  when  the  judgment           rendered did  not exceed the possible power of the           court7 and  the notice  was sufficient  to put the           defendant upon  inquiry, a  court should  hesitate           long   before   holding   the   proceedings   void           collaterally       (emphasis supplied)      16.  But   in  certain  cases,  motions  to  set  aside Judgments are  permitted where,,for  instance a judgment was rendered in ignorance of the fact that a necessary party had not been  served at  all, and was wrongly shown as served or in ignorance  of the  fact that a necessaryD party had died, and the  estate  was  not  represented.  Again,  a  judgment obtained by  fraud could be subject to an action for setting it aside.  Where such a judgment obtained by fraud tended to prejudice a  non party,  as in  the case of judgments in-rem such as for divorce, or jactita tion or probate etc. everl a person, not eo-nomine a party to the proceedings, could seek a setting-aside of the judgment.      Where a  party nas  naa no  nonce ana  a aecree ls maae agamst him,  he can approach the court for setting-aside the decision. In  such a  case  the  party  is  said  to  become

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entitled to relief ex-debito justitiae, on proof of the fact that there  was no  service. This  is a class of cases where there is  no trial  at all  and the judgment is for default. D.N. Gordan,  in his "Actions to set aside judgments." (1961 77 Law Quarterly Review 356) says:           "The  more  familiar  applications  to  set  aside           judgments are  those made  on motion and otherwise           summarily. But  there are  judgments  obtained  by           default,  which   do  not   represent  a  judicial           determination.  In   general,  Judgments  rendered           after a  trial are  conclusive between the parties           unless and  until reversed on appeal. Certainly in           general judgments  of superior  courts  cannot  be           overturned or  questioned bet  ween the parties in           collateral  actions.   Yet  there  is  a  type  of           collateral action known as an action of review, by           which even  a superior  court’s  judgment  can  be           questioned, even  between  the  parties,  and  set           aside 111      Cases of  such frank  failure of  natural  justice  are obvious cases  where relief  is granted as of right. Where a person is  not actually  served but  is held erroneously, to have been served, he can agitate that grievance only in that forum or  in any  further proceeding  therefrom. In  Issac’s case [ 1984] 3 All ER 140 privy council referred to:           " .......  , ..  a category  of orders  of such  a           court which  a person  affected by  the  order  is           entitled to  apply to  have  set  aside  ex-debito           justitiae in exercise of the inherent jurisdiction           of the  court without  needing to have recourse to           the Rules  that deal expressly with proceedings to           setaside orders  for irregularity  and give to the           judge a discretion as to the order he will make".      In the  present case by the order dated 5.4.1984 a five judge bench  set-out, what  according to  it, was, the legal basis and  source of  jurisdiction  to  order  transfer.  On 17.4.1984  appellant’s   writ  petition   challenging   that transfer as  a nullity  was dismissed.  These orders are not which appellant  is entitled  to  have  set-aside  ex-debito justitiae by  another bench. Reliance on the observations in Issac’s case is wholly misplaced.      The decision  of the  Privy Council  in Rajunder Narain Rae v.  Bijai Govind  Singh, [2  NIA  181]  illustrates  the point. Referring  to the  law on  the matter,  Lord Brougham said: E           "It is  unquestionably the  strict rule, and ought           to be distinctly understood as such, that no cause           in this  Court can  be re-heard, and that an order           once made,  that is,  a report  submitted  to  His           Majesty and  adopted, by  being made  an order  in           Council, is final, and cannot be altered. The same           is the  case of  the judgments  of  the  House  of           Lords, that  is, of the Court of Parliament, or of           the  King   in  Parliament   as  it  is  sometimes           expressed, the only other supreme tribunal in this           country.  Whatever,  therefore,  has  been  really           determined in these Courts must stand, there being           no power of re-hearing for purpose of changing the           judgment   pronounced;    nevertheless,   if    by           misprision in embodying the judgments, errors have           been introduced,  these Courts  possess, by common           law, the same power which the Courts of Record and           Statute have of rectifying the mistakes which have           crept in.  The Courts  of Equity  may correct  the

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         Decrees made  while they are in minutes; when they           are 112           complete they  can only  vary them  by re-hearing;           and when  they are signed and enrolled they can no           longer be reheard, but they must be altered. if at           all, by  Appeal. The Courts of Law, after the term           in which  the judgments  are given  can only alter           them so  as to  correct misprisions, a power given           by the  Statutes of  Amendment. The House of Lords           exercises a  similar power  of rectifying mistakes           made in  drawing up  its own  judgments, and  this           Court must  possess the  same authority. The Lords           have, however,  gone  a  step  further,  and  have           corrected mistakes introduced through inadvertence           in the  details of  judgments;  or  have  supplied           manifest defects,  in order  to enable the Decrees           to be  enforced, or have added explanatory matter,           or have  reconciled inconsistencies.  But with the           exception  of   one  case  in  1669.  Of  doubtful           authority, here,  and  another  in  Parliament  of           still less  weight in  1642 (which  was an  Appeal           from the  Privy Council  to Parliament,  and at  a           time when  the  Government  was  in  an  unsettled           state),  no  instance,  it  is  believed,  can  be           produced of a rehearing upon the whole cause., and           an  entire   alteration  of   the  judgment   once           pronounced.. .."      17. The  second class  of cases  where  a  judgment  is assailed  for  fraud,  is  illustrated  by  the  Duchess  of Kingston s  case (  1776 2  Sm. L.C.  644 13th Ed.). ln that case,  the   Duchess  was   prosecuted  for  bigamy  on  the allegation that she entered into marriage while her marriage to another  person, a  certain Hervey, was still subsisting. In  her  defence,  the  Duchess  relied  upon  a  decree  of jactitation from  an ecclesiastical court which purported to show  that  she  had  never  been  married  to  Hervey.  The prosecution sought  to get  over this  on the allegation the decree was  obtained in a sham and collusive proceeding. The House of  lords held  the  facts  established  before  Court rendered the  decree nugatory and was incapable of supplying that particular  defence. De Grey CJ said that the collusive decree was  not be impeached from within; yet like all other acts of  the  highest  authority,  it  is  impeachable  from without, although it is not permitted to show that the court was mistaken,  it may  be shown that they were misled. Fraud which affected  the judgment  with described  by the learned Chief  Justice   as  an  "extrinsic  collateral  act.  which vitiates the  most solemn proceedings of courts of justice.. ’      18. The  argument of  nullity is  too tall  and has  no place in  this case.  The earlier  direction proceeded  on a construction of Section 7(1) 113 Of the  Act and  Section 407  Cr.P.C. We  do not sit here in appeal over  what the five Judge bench said and proclaim how wrong they  were. We are, simply, not entitled to embark, at a later  stage, upon  an investigation of the correctness of the very  same decision.  The same  bench  can,  of  course, reconsider the matter under Article 137.      However, even  to the extent the argument goes that the High Court  under Section  407 Cr.P.C. could not withdraw to itself a  trial from  Special-Judge under  the 1952 Act, the view  of   the  earlier   bench  is  a  possible  view.  The submissions of  Shri Ram  Jethmalani that the exclusivity of

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the jurisdiction  claimed for  the special  forum under  the 1952 Act is in relation to Courts which would, otherwise, be Courts of  competing or  co-ordinate jurisdictions  and that such exclusivity  does not  effect the superior jurisdiction of the  High Court  to withdraw,  in appropriate situations, the case to itself in exercise of its extraordinary original criminal   jurisdiction;    that   canons    of   Statutory- construction, appropriate to the situation, require that the exclusion of  jurisdiction implied  in the 1952 amending Act should not  be pushed beyond the purpose sought to be served by the  amending law;  and that  the law  while creating the special jurisdiction  did not  seek to  exclude  the  extra- ordinary jurisdiction  of the  High Court  are  not  without force. The  argument, relying upon Kavasji Pestonji Dalal v. Rustor, Sorabji  Jamadar &  Anr., AIR  1949 Bombay  42  that while the  ordinary competing  jurisdictions of other Courts were excluded,  the extraordinary  jurisdiction of  the High Court was neither intended to be. nor, in fact, affected, is a matter  which would  also bear serious examination. In Sir Francis  Bennion’s   Statutory  Interpretation,   there  are passages at  page 433 which referring to presumption against implied repeal,  suggest that in view of the difficulties in determining whether an implication of repeal was intended in a particular  situation it would be a reasonable presumption that where  the legislature  desired a repeal, it would have made it  plain by  express words.  In  Sutherland  Statutory construction the following passages occur:                "Prior statutes  relating to the same subject           matter are to be compared with the new provisions;           and if  possible by  reasonable construction, both           are to  be so  construed that  effect is  given to           every provision  of each. Statutes in pari materia           although in  apparent  conflict,  are  so  far  as           reasonably possible  constructed to  be in harmony           with each other."                                          (Emphasis supplied) 114                "When the  legislature enacts a provision, it           has before  it a  11 the other provisions relating           to the same subject matter which it enacts at that           time, whether in the same statute or in a separate           Act. It  is  evident  that  it  has  in  mind  the           provisions of  a prior  Act to  which  it  refers,           whether it  phrases the  later Act as amendment or           an independent  Act. Experience  indicates that  a           legislature   does    not    deliberately    enact           inconsistent provisions  when it  is rec ogzant of           them  both,   without  expressly  recognizing  the           inconsistency. (emphasis supplied)      Reliance by  Shri Ram Jethmalani on these principles to support his  submission that the power under Section 407 was unaffected and  that the  decision in  State of Rajasthan v. Gurucharan Das Chadda (supra), can not also be taken to have concluded  the   matter,  is   not  un-arguable.   I  would, therefore, hold contentions (a) and (b) against appellant.      19 Re: contention (c):      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

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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  judicial discernment. If  the law permits the withdrawal of the trial to 115 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 Sarkar’s case (supra), in such a context would be somewhat out of place.      If the  law did  not permit  such a  transfer then  the trial before  a forum which is not according to law violates the rights  of the  accused person.  In the earlier decision the transfer  has been held to be permissible. That decision has assumed finality.      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.  The argument that  a Judge of the High Court may not necessarily possess the  statutory-qualifications  requisite  for  being appointed as a Special Judge appears to be specious. A judge of the  High Court  hears appeals arising from the decisions of the  Special Judge,  and exercises  a jurisdiction  which includes powers  co-extensive with  that of the trial court. There is, thus, no substance in contention (c).      21. Re: Contention(d):      This grievance  is not  substantiated  on  facts;  nor, having regard to the subsequent course of events permissible to be  raised at  this stage.  These directions,  it is  not disputed, were  issued on 16.2.1984 in the open Court in the presence of  appellant’s learned  counsel  at  the  time  of pronouncement of the judgment. Learned counsel had the right and the  opportunity of  making an appropriate submission to the court  as to  the permissibility  or  otherwise  of  the transfer. Even  if the  submissions of  Shri Ram  Jethmalani that in  a revision  application Section 403 of the Criminal Procedure Code  does not envisage a right of being heard and that transfer of a case to be tried by the Judge of the High Court cannot,  in the estimate of any right thinking person, be said  to be  detrimental to  the accused  person  is  not accepted,  however,  applicant,  by  his  own  conduct,  has disentitled  himself  to  make  grievance  of  it  in  these proceedings. It  cannot be  said that  after the  directions were pronounced and before the order was signed there was no opportunity for  the appellant’s learned counsel to make any submissions  in   regard  to   the  alleged   illegality  or impropriety of the directions. Appellant did

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116 not utilise  the opportunity.  That apart,  even after being told by  two A judicial orders that appellant, if aggrieved, may seek  a review  he did not do so. Even the grounds urged in the many subsequent proceedings appellant took to get rid of the  effect of the direction do not appear to include the grievance that  he had no opportunity of being heard. Where, as here,  a party  having had  an  opportunity  to  raise  a grievance in  the earlier  proceedings does  not do  so  and makes  it  a  technicality  later  he  cannot  be  heard  to complain. Even  in respect  of so  important jurisdiction as Habeas Corpus,  the observation of Gibson J in Re. Tarling l 19791 1 All E.R. 981 at 987 are significant:                "Firstly, it  is clear  to the  Court that an           applicant for  habeas corpus  is required  to  put           forward on  his initial  application then whole of           the case  which is then fairly available to him he           is not  free to  advance  an  application  on  one           ground, and  to keep  back a  separate  ground  of           application as  a basis  for a  second or  renewed           application to the Court.                The true  doctrine of  estoppel known  as res           judicata does  not apply  to the  decision of this           Court on an application for habeas corpus we refer           to the  words of  Lord Parket  CJ  delivering  the           Judgment of  the Court  in Re.  Hastings (No.  2).           There is,  however, a  wider sense  in  which  the           doctrine  of   res  judicata  may  be  applicable,           whereby it becomes an abuse of process to raise in           subsequent proceedings  matters which  could,  and           therefore, should  have been  litigated in earlier           proceedings .. "      This statement  of the  law by Gibson J was approved by Sir John  Donaldson MR  in the  Court of  appeal in  Ali  v. Secretary of  State for  the  Home  Department, [1984] 1 All E.R. 1009 at 1019.      Rules of  natural justice  embodies fairness in-action. By all  standards, they  are great assurances of Justice and fairness. But they should not be pushed to a breaking point. It is  not inappropriate to recall what Lord Denning said in R. v.  Secretary of  State for  the Home Department ex-parte Mughal, [1973] 3 All ER 796:           " ...  The rules  of natural  justice must  not be           stretched too  far. Only  too often the people who           have done  wrong  seek  to  invoke  the  rules  of           natural justice  so as to avoid the consequences .           "           Contention (d) is insubstantial. 117      22. Re. Contention (e): A      The contention  that the  transfer of  the case  to the High Court involves the elimination of the appellant’s right of appeal  to the  High Court  which he would otherwise have and that the appeal under Article 136 of the Constitution is not as  of right  may not  be substantial in view of Section 374, Cr.  P.C. which  provides such  an appeal  as of right, when the  trial is  held by  the High  Court.  There  is  no substance in contention (e) either.      23. Re.Contention (f):      The argument  is that  the earlier  order of  the  five Judge bench  in so far as it violates the fundamental rights of the  appellant under Article 14 and 21 must be held to be void and amenable to challenge under Article 32 in this very Court and  that the  decision of  this  Court  in  Premchand Garg’s case  (supra) supports  such a  position. As  rightly

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pointed out  by Ranganath  Misra, J.  Premchand Garg’s  case needs to be understood in the light of the observations made in Naresh  Sridhar Mirajkar & Ors. v. State of Maharashtra & Anr., [ 1966] 3 SCC 744. In Mirajkar’s case, Gajendragadkar, CJ., who  had himself  delivered the opinion in Garg’s case, noticed the contention based on Garg’s case thus:                "ln support  of his  argument that a judicial           decision  can   be  corrected  by  this  Court  in           exercise of  its writ  jurisdiction under  Article           32(2),  Mr.   Setalvad  has  relied  upon  another           decision of  this Court  in  Prem  Chand  Garg  v.           Excise Commissioner, UP, Allahabad (supra) .. "      Learned Chief  Justice referring  to the  scope of  the matter that fell for consideration in Garg’s case stated:                ".... It  would thus  be seen  that the  main           controversy  in   the  case  of  Prem  Chand  Garg           centered round  the question as to whether Article           145 conferred  powers on this Court to make rules,           though  they   may  be   inconsistent   with   the           constitutional provisions  prescribed by part III.           Once it  as held that the powers under Article 142           had to be read subject not only to the fundamental           rights, but to other binding statutory provisions,           it became  clear that  the ruler  which authorised           the making  of the  impugned order was invalid. It           was in that context that the validity of the 118           order  had   to  be   incidentally  examined.  The           petition was  A made not to challenge the order as           such, but  to challenge  the validity  of the rule           under which the order was made      Repelling the contention learned Chief Justice said:                "... It is difficult to see now this decision           can be  pressed into  service by  Mr. Setalvad  in           support of  the argument  that  a  judicial  order           passed by this Court was held to be subject to the           writ jurisdiction of this Court itself .. "      A passage from Kadish & Kadish "Discretion to Disobey", 1973 Edn. may usefully by recalled:                "on one  view, it would appear that the right           of  a   citizen  to   defy  illegitimate  judicial           authority should  be the same as his right to defy           illegitimate legislative  authority. After all, if           a rule  that transgresses  the Constitution  or is           otherwise invalid  is no  law at all and never was           one, it  should hardly matter whether a court or a           legislature made  the  rule.  Yet  the  prevailing           approach of  the courts  has been to treat invalid           court  orders   quite  differently   from  invalid           statutes. The  long established  principle of  the           old equity  courts was  that an erroneously issued           injunction must  be obeyed  until  the  error  was           judicially  determined.  Only  where  the  issuing           court could be said to have lacked jurisdiction in           the sense of authority to adjudicate the cause and           to reach  the parties  through  its  mandate  were           disobedient  contemnors  permitted  to  raise  the           invalidity of  the order as a full defence. By and           large, American  courts have declined to treat the           unconstitutionality  of   a  court   order  as   a           jurisdictional  defect   within  this  traditional           equity principle,  and in  notable instances  they           have  qualified  that  principle  even  where  the           defect was  jurisdiction in  the accepted  sense."           (See 111).

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Indeed Ranganath  Misra, J.  in  his  opinion  rejected  the contention of the appellant in these terms:                "In view of this decision in Mirajkar’s case,           supra, it must be taken as concluded that judicial           proceedings in  this Court  are not subject to the           writ jurisdiction thereof." 119      There is no substance in contention (f) either. A      24. Contention (g):      It is  asserted that  the impugned directions issued by the five  Judge Bench  was per-incuriam  as it  ignored  the Statute and the earlier Chadda’s case. B      But the  point is that the circumstance that a decision is  reached   per-incuriam,  merely  serves  to  denude  the decision of  its precedent  value. Such a decision would not be binding  as a judicial precedent. 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  does 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,  may  or  may  not  be  sufficient.  There  is advertence to  Section 7(1)  of the  1952  Act  and  to  the exclusive jurisdiction  created thereunder.  There  is  also reference to Section 407 of the Criminal Procedure Code. Can such  a  decision  be  characterised  as  one  reached  per- incurium? Indeed,  Ranganath Misra,  J.  says  this  on  the point:                "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 .. "      I respectfully  agree. Point (g) is bereft of substance and merits.      25. Re: Contention (h):      The argument  is that the appellant has been prejudiced by a  mistake of  the Court  and it is not only within power but a duty as well, H 120 of the Court to correct its own mistake, so that no party is prejudiced by  the Court’s  mistake:  Actus  Curiae  Neminem Gravabid.      I am  afraid this maxim 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

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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  his maxim.  There  is  no  substance  in contention (h).      26. lt  is true  that the  highest court  in  the  land should no.,  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 Holmes 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 vacillations 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 administrating of  justice by  Courts.  It  would  be  gross injustice, says  an author, (Miller-’data of jurisprudence’) 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  the 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.      The appeal is dismissed.      RANGANATHAN, J.  1. I  have had the benefit of perusing the 121 drafts of  the judgments  proposed by  my  learned  brothers Sabyasachi Mukharji, Ranganath Misra and Venkatachaliah, JJ. On the question whether the direction given by this Court in its judgment  dated 16.2.1984  should be  recalled,  I  find myself in  agreement with  the conclusion of Venkatachaliah, J. (though  for slightly different reasons) in preference to the  conclusion  reached  by  Sabyasachi  Mukharji,  J.  and Ranganath Misra,  J. I  would, therefore, like to set out my views separately on this issue.                            THE ISSUES      1. This  is an  appeal by special leave from a judgment of Shah J., of the Bombay High Court. The appellant is being tried for  offences under  Ss. 120B, 420, 161 and 165 of the Indian Penal  Code (I.P.C.) read with S. 5(1)(d) and 5(2) of the Prevention  of Corruption  Act,  1947.  The  proceedings against the  appellant were  started in  the  Court  of  Sri Bhutta, a  Special Judge,  appointed under  S. 6(1)  of  the Criminal Law  (Amendment) Act, 1952 (hereinafter referred to as ’the  1952 Act’).  The proceedings  have had  a chequered career as  narrated in  the judgment  of my  learned brother Sabyasachi Mukharji,  J. Various  issues have  come  up  for consideration of  this Court  at the  earlier stages  of the proceedings and  the  judgments  of  this  Court  have  been reported In  1982 2  S.C.C. 463,  1984 2 SCR 495, 1984 2 SCR 914, 1984  3 SCR  412, 1984 3 SCR 482 and 1986 2 S.C.C. 716. At present  the appellant  is being tried by a learned Judge of the  Bombay High  Court nominated by the Chief Justice of the Bombay High Court in pursuance of the direction given by

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this Court  in its order dated 16.2.1984 (reported in 1984 2 SCR 495).  By the  order presently under appeal, the learned Judge (s) framed as many as 79 charges against the appellant and (b)  rejected the  prayer of  the appellant that certain persons, named  as co-conspirators  of the  appellant in the complaint on  the basis  of which  the prosecution  has been launched should be arrayed as co-accused along with him. But the principal  contention urged  on behalf  of the appellant before us  centres not  round the  merits of the order under appeal on  the above  two issues  but round what the counsel for the  appellant has  described as  a fundamental and far- reaching objection  to the very validity of his trial before the learned  Judge. As  already stated,  the trial  is being conducted by  the learned Judge pursuant to the direction of this Court  dated 16.2.1984.  The contention  of the learned counsel is that the said direction is per incuriam, illegal, invalid, contrary  to the  principles of natural justice and violative of  the fundamental rights of the petitioner. This naturally raises two important issues for our consideration:      A. Whether  the said  direction is inoperative, invalid or illegal, as alleged; and 122      B. Whether, if it is, this Court can and should recall, withdraw, revoke  or set  aside  the  same  in  the  present proceedings.      Since the issues involve a review or reconsideration of a direction  given by  a Bench of five judges of this Court, this seven-judge  Bench has  been constituted  to  hear  the appeal.      2. It is not easy to say which of the two issues raised should be  touched upon  first as, whichever one is taken up first, the  second will  not arise  for consideration unless the first  is answered  in the  affirmative. However, as the correctness of  the direction  issued  is  impugned  by  the petitioner, as  there  is  no  detailed  discussion  in  the earlier order on the points raised by the petitioner, and as Sabyasachi Mukharji,  J. has  expressed an  opinion on these contentions with  parts of  which I  am unable  to agree, it will be  perhaps more convenient to have a look at the first issue as  if it  were coming  up for  consideration for  the first time  before us and then, depending upon the answer to it, consider  the second  issue as to whether this Court has any jurisdiction  to recall or revoke the earlier order. The issues will, therefore, be discussed in this order.      A. ARE THE DIRECTIONS ON 16.2.1984 PROPER, VALID AND         LEGAL?      3.  For   the  appellant,  it  is  contended  that  the direction given  in the  last para of the order of the Bench of five Judges dated 16.2.1984 (extracted in the judgment of Sabyasachi  Mukharji,   J.)  is   vitiated  by   illegality, irregularity and  lack  of  jurisdiction  on  the  following grounds:      (i)  Conferment   of  jurisdiction  on  courts  is  the      function of  the legislature.  It was not competent for      this Court to confer jurisdiction on a learned Judge of      the High Court to try the appellant, as, under the 1952      Act, an  offence of  the type  in question can be tried      only by  a special Judge appointed thereunder. This has      been overlooked  while issuing  the direction which is,      therefore, per incuriam.      (ii) The  direction above-mentioned  (a) relates  to an      issue which  was not  before the  Court (b) on which no      arguments were addressed and (c) in regard to which the      appellant had  no opportunity  to make his submissions.      It was  nobody’s case  before the  above Bench that the

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    trial of the accused should no 123      longer be  conducted by  a Special  Judge but should be      before a High Court Judge.      (iii) In  issuing the  impugned  direction,  the  Bench      violated  the   principles  of   natural  justice,   as      mentioned above.  It also  overlooked that, as a result      thereof, the  petitioner (a)  was discriminated against      by being  put to  trial before  a  different  forum  as      compared to  other public  servants accused  of similar      offences and  (b) lost  valuable rights of revision and      first appeal to the High Court which he would have had,      if tried in the normal course. The direction  was thus also violative of natural justice as well as  the fundamental  rights  of  the  petitioner  under Article 14 and 21 of the Constitution.      Primary Jurisdiction      4. There can be-and, indeed, counsel for the respondent had-no quarrel  with the  initial  premise  of  the  learned counsel  for   the  appellant   that   the   conferment   of jurisdiction on  courts is  a matter  for  the  legislature. Entry 77 of List I, entry 3 of List II and entries 1, 2, 11A and  46   of  List  III  of  the  Seventh  Schedule  of  the Constitution set out the respective powers of parliament and the State  Legislatures in  that regard. It is common ground that the jurisdiction to try offences of the type with which are concerned  here is  vested by  the 1952  Act in  Special Judges appointed  by the  respective State  Governments. The first question  that has  been agitated before us is whether this Court was right in transferring the case for trial from the Court  of a  Special Judge,  to a Judge nominated by the Chief Justice of Bombay.      High Court’s Power of Transfer      5. The power of the Supreme Court to transfer cases can be traced,  in criminal  matters, either to Art. 139A of the Constitution  or   Section  406  of  the  Code  of  Criminal Procedure ("Cr.  P.C.), 1973.  Here,  again,  it  is  common ground that  neither of  these provisions  cover the present case. Sri  Jethmalani, learned  counsel for  the respondent, seeks to  support the  order of  transfer  by  reference  to Section 407  (not Section 406) of the Code and cl. 29 of the Letters Patent  of the  Bombay High Court. Section 407 reads thus:      (1) Whenever it is made to appear to the High Court- 124      (a) that  a fair  and impartial inquiry or trial cannot      be had in any Criminal Court subordinate thereto, or      (b) that  some question of law of unusual difficulty is      likely to arise, or      (c) that an order under this section is required by any      provision of  this Code,  or will  tend to  the general      convenience  of   the  parties   or  witnesses,  or  is      expedient for the ends of justice,      it may order-      (i) that  any offence  be inquired into or tried by any      Court not  qualified under  Section 177  to  185  (both      inclusive), but  in other respects competent to inquire      into or try such offences;      (ii) that  any particular  case or  appeal, or class of      cases or  appeals, be transferred from a Criminal Court      subordinate to its authority to any other such Criminal      Court of equal or superior jurisdiction;      (iii) that  any particular  case be committed for trial      to a Court of Session; or      (iv) that  any particular case or appeal be transferred

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    to and tried before itself.      (2) the  High Court may act either on the report of the      lower court or on the application of a party interested      or on its own initiative:      XXX                    XXX                          XXX      XXX                    XXX                          XXX      XXX                    XXX                          XXX      (9) Nothing  in this  section shall be deemed to affect      any order of Government under Section 197." And cl.  29 of  the Letters  Patent of the Bombay High Court runs thus:           "And we do further ordain that the said High Court           shall have  power to  direct the  transfer of  any           criminal case or 125           appeal from any Court to any other Court of appeal           or superior  jurisdiction, and  also to direct the           preliminary investigation of trial of any criminal           case by  any officer  of Court otherwise competent           to investigate or try it though such case belongs,           in ordinary  course, to  the jurisdiction  of some           other officer, of Court." The argument  is that  this power  of transfer vested in the High Court  can well be exercised by the Supreme Court while dealing with an appeal from the High Court in the case.      6. For the appellant, it is contended that the power of transfer under  section 407  cannot be invoked to transfer a case from  a Special  Judge appointed  under the 1952 Act to the High  Court. Learned  counsel for the appellant contends that the  language of  section 7(1) of the Act is mandatory; it directs  that offences  specified in the Act can be tried only by  persons appointed, under S. 6(2) of the Act, by the State Government,  to be  special judges, No other Judge, it is said,  has jurisdiction to try such a case, even if he is a Judge  of the  High Court.  In this context, it is pointed out that a person, to be appointed as a special Judge, under section 6(2)  of the  1952 Act, should be one who is, or has been, a  Sessions Judge  (which expression  in this  context includes an  Additional Sessions  Judge and/or  an Assistant Sessions Judge).  All High  Court Judges  may not  have been Sessions Judges  earlier and,  it is common ground, Shah, J. who has  been nominated by the Chief Justice for trying this case does  not fulfill  the  qualifications  prescribed  for appointment as  a Special  Judge.  But,  that  consideration apart, the argument is that, while a High Court can transfer a case  from one  special judge  to another, and the Supreme Court, from  a special judge in one State to a special judge in another State, a High Court cannot withdraw a case from a Special  Judge  to  itself  and  the  Supreme  Court  cannot transfer a case from a Special Judge to the High Court.      7.  On   the  other  hand,  it  is  contended  for  the respondent that  the only  purpose of  the 1952  Act  is  to ensure that  cases of  corruption and  bribery  do  not  get bogged up  in the  ordinary criminal  courts which are over- burdened with  all sorts  of cases.  Its object  is  not  to create special  courts in  the sense  of  courts  manned  by specially  qualified   personnel  or  courts  following  any special type  of procedure.  All that  is done is to earmark some of  the  existing  sessions  judges  for  trying  these offences  exclusively.   The  idea   is  just  to  segregate corruption and bribery cases to a few of the sessions judges so that they could deal with them 126 effectively and  expeditiously. It  is a  classification  in which the emphasis is on the types of offences and nature of

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offenders rather  than on the qualifications of judges. That being so,  the requirement  in section 7(1) that these cases should be  tried by  special judges only is intended just to exclude their  trial by  the other normal criminal courts of coordinate jurisdiction and not to exclude the High Court.      8. Before  dealing with  these contentions,  it may  be useful to  touch upon the question whether a judge of a High Court can  be appointed by the State Government as a special judge to  try offences of the type specified in section 6 of the 1952  Act. It  will be  seen at  once that  not all  the judges of  the High  Court (but only those elevated from the State   subordinate    judiciary)    would    fulfill    the qualifications prescribed  under section  6(2) of  the  1952 Act. Though there is nothing in ss. 6 and 7 read together to preclude altogether  the appointment  of a judge of the High Court fulfilling  the  above  qualifications  as  a  special judge, it would appear that such is not the (atleast not the normal) contemplation  of the Act. Perhaps it is possible to argue that,  under the  Act, it is permissible for the State Government to  appoint one of the High Court Judges (who has been a  Sessions Judge) to be a Special Judge under the Act. If that  had been done, that Judge would have been a Special Judge  and   would  have   been  exercising   his   original jurisdiction in  conducting the  trial. But  that is not the case here.  In response  to a specific question put by us as to whether  a High Court Judge can be appointed as a Special Judge under  the 1952  Act, Shri Jethmalani submitted that a High Court  Judge cannot  be so  appointed. I am inclined to agree. The  scheme of  the Act,  in particular the provision contained in ss. 8(3A) and 9, militate against this concept. Hence, apart  from the fact that in this case no appointment of a  High Court Judge, as a Special Judge, has in fact been made, it is not possible to take the view that the statutory provisions permit  the conferment  of a  jurisdiction to try this case on a High Court Judge as a Special Judge.      9. Turning  now to the powers of transfer under section 407, one  may first  deal with the decision of this Court in Gurucharan Das Chadha v. State of Rajasthan, [1966] 2 S.C.R. 678 on  which both  counsel  strongly  relied.  That  was  a decision by  three judges  of this Court on a petition under section 527  of the  1898 Cr.P.C.  (corresponding to section 406 of  the 1973 Cr.P.C.). The petitioner had prayed for the transfer of  a case  pending in the court of a Special Judge in Bharatpur,  Rajasthan to  another criminal court of equal or superior  jurisdiction subordinate  to a High Court other than the High Court of 127 Rajasthan. The  petition was eventually dismissed on merits. But the  Supreme Court  dealt with the provisions of section 527 of  the 1898  A Cr.P.C.  in the  context of an objection taken by the respondent State that the Supreme Court did not have the  jurisdiction to transfer a case pending before the Special Judge,  Bharatpur. The  contention was  that a  case assigned by  the State  Government under  the 1952  Act to a Special Judge  cannot be  transferred at  all because, under the terms  of that  Act, which  is a  self-contained special law, such  a case  must be  tried  only  by  the  designated Special Judge.  The Court  observed that  the  argument  was extremely  plausible   but  not  capable  of  bearing  close scrutiny. After  referring to the provisions of section 6, 7 and 8  of the  1952 Act, the Court set out the arguments for the State thus:           "The Advocate-General,  Rajasthan, in opposing the           petition relies  principally on  the provisions of           section 7(1)  and 7(2)  and contends  that the two

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         sub-sections create two restrictions which must be           read  together.   The  first   is  that   offences           specified in  section 6(1) can be tried by Special           Judges only. The second is that every such offence           shall be  tried by  the Special Judge for the area           within which it is committed and if there are more           special judges  in that  area by the Special Judge           chosen by  the Government.  These two  conditions,           being statutory, it is submitted that no order can           be made  under section  527 because,  on transfer,           even if  a special  judge is  entrusted  with  the           case, the second condition is bound to be broken." Dealing with this contention the Court observed:           "This condition,  if literally  understood,  would           lead to  the conclusion that a case once made over           to a  special Judge  in an  area where there is no           other special Judge, cannot be transferred at all.           This could hardly have been intended. If this were           so, the power to transfer a case intra-state under           s. 526  of the  Code of  Criminal Procedure,  on a           parity of  reasoning, must  also be  lacking.  But           this Court  in  Ramachandra  Parsad  v.  State  of           Bihar, [1962]  2  S.C.R. 50 unheld the transfer of           a case  by the  High Court  which  took  it  to  a           special judge  who had no jurisdiction in the area           where the  offence was  committed. In holding that           the transfer  was valid this Court relied upon the           third sub-section  of Section  8 of  the Act. That           sub-section  preserves   the  application  of  any           provision of  the Code of Criminal Procedure it it           is not 128           inconsistent with the Act, save as provided in the           first  two   sub-sections  of  that  section.  The           question, therefore,  resolves itself  to this: Is           there an  inconsistency between S. 527 of the Code           and the  second sub-section of S. 7? The answer is           that there  is none.  Apparently this Court in the           earlier  case   found  no  inconsistency  and  the           reasons appear  to be there: The condition that an           offence specified  in S.  6(2) shall be tried by a           special Judge  for the  area within  which  it  is           committed  merely   specifies  which   of  several           special Judges appointed in the State by the State           Government  shall   try  it.   The  provision   is           analogous to  others under  which the jurisdiction           of Magistrates  and Sessions Judges is deter mined           on a  territorial basis. Enactments in the Code of           Criminal Procedure  intended to confer territorial           jurisdiction upon  courts and  Presiding  officers           have never  been held  to  stand  in  the  way  of           transfer of  criminal cases outside those areas of           territorial jurisdiction.  The order  of  transfer           when it is made under the powers given by the Code           invests another officer with jurisdiction although           ordinarily he  would lack territorial jurisdiction           to  try   the  case.  The  order  of  this  Court,           therefore,  which  transfer(s)  a  case  from  one           special Judge  subordinate to  one High  Court  to           another special  Judge subordinate to another High           Court creates  jurisdiction in  the latter in much           the same  way as  the transfer  by the  High Court           from one  Sessions Judge  in a Session Division to           another  Sessions   Judge  in   another   Sessions           Division.

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         There is  no comparison  between  the  first  sub-           section and  the second  sub-section of Section 7.           The condition in the second sub-section of S. 7 is           not of  the same character as the condition in the           first sub-section. The first sub-section creates a           condition which is a sine qua non for the trial of           certain offences. That condition is that the trial           must be  before a  special Judge.  The second sub-           section  distributes   the  work  between  special           Judges and  lays emphasis  on the  fact that trial           must be  before a  special Judge appointed for the           area in  which  the  offence  is  committed.  This           second condition is on a par with the distribution           of work  territorially between  different Sessions           Judges and  Magistrates. An  order of transfer, by           the very nature of things must, some times, result           in taking  the case  out of  the territory and the           provisions of  the Code which are preserved by the           third sub- 129           section of  S. 8  must supervene to enable this to           be done  and the  second sub-section  of S. 7 must           yield. We  do not  consider that  this creates any           inconsistency because the territorial jurisdiction           created by the second sub-section of S. 7 operates           in  a   different  sphere   and  under   different           circumstances. Inconsistency  can only be found if           two  provisions   of  law   apply   in   identical           circumstances and  create contradictions.  Such  a           situation does not arise when either this Court or           the High  Court exercises  its powers of transfer.           We are accordingly of the opinion that the Supreme           Court in  exercise of  its jurisdiction  and power           under S. 527 of the Code of Criminal Procedure can           transfer a  case from  a Special Judge subordinate           to  the   High  Court  to  another  special  Judge           subordinate to another High Court. "  (emphasis added)      10. The  attempt of  Sri Jethmalani  is  to  bring  the present case  within the scope of the observations contained in the  latter part of the extract set out above. He submits that a special judge, except insofar as a specific provision to the  contrary is made, is a court subordinate to the High Court, as  explained in  1984 2  S.C.R. 914 (at pages 943-4) and proceedings  before him are subject to the provisions of the 1973  Cr.P.C.; the  field of operation of the first sub- section of  section 7  is merely to earmark certain Sessions Judges for  purposes of trying cases of corruption by public servants and  this provision is, in principle, not different from the  earmarking of  cases on  the basis  of territorial jurisdiction dealt  with by  sub-section 2 of section 7. The argument is  no doubt a plausible one. It does look somewhat odd to say that a Sessions Judge can, but a High Court Judge cannot, try an offence under the Act. The object of the Act, as rightly  pointed out  by counsel,  is only  to  segregate certain cases  to special  courts which  will concentrate on such cases  so as to expedite their disposal and not to oust the superior jurisdiction of the High Court or its powers of superintendencet over  subordinate courts  under article 227 of the Constitution, an aspect only of which is reflected in s. 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

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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 pro- 130 cedural 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 S. 406 or 407, the requirement that the trial should be  by a  special judge is not. It is 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.  It  is, however, clear  that the  Bench, even if it had accepted the transfer  petition  of  Gurcharan  Das  Chadha,  would  have rejected a prayer to transfer the case to a court other than that of a Special Judge appointed by the transferee State. I am in  respectful agreement with the view taken in that case that there is a vital qualitative difference between the two sub-sections 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  session even  if it has territorial jurisdiction.  If the  contention of the learned counsel for  the respondent  that s. 7(1) and s. 407 operate in different fields and are not inconsistent with each other were right,  it should be logically possible to say that the High Court can, under s. 407, transfer a case from a special judge to  any other  Court of Session. But such a conclusion would be clearly repugnant to the scheme of the 1952 Act and plainly incorrect. It is, therefore, difficult to accept the argument  of   Sri  Jethmalani  that  we  should  place  the restriction contained  in the first sub-section of section 7 also as being on the same footing as that in the second sub- section and hold that the power of transfer contained in the Criminal Procedure Code can be availed of to transfer a case from a Special Judge to any other criminal court or even the High Court.  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 to  which  transfer  or withdrawal is  sought is  competent to exercise jurisdiction over the case. (vide, Raja Soap Factory v. Shantaraj, [1965] 2 S.C.R. 800).      11. This  view also derives support from two provisions of S.  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  s. 407  provides that  the order  of transfer  will prevail, lack of jurisdiction 131 under Ss. 177 to 185 of the Code notwithstanding. The second difficulty arises,  even under the Cr.P.C. itself, by virtue of  S.   197  which  not  only  places  restriction  on  the institution of  certain prosecutions against public servants without  Government   sanction   but   also   empowers   the Government, inter  alia, to determine the court before which

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such trial  is to  be conducted.  When the  forum of  such a trial is  transferred under s. 407 an objection may be taken to the  continuance of  the trial  by the  transferee  court based on  the order passed under s. 197. This eventuality is provided against by s. 407(9) of the Act which porvides that nothing in  s. 407 shall be deemed to affect an order passed under s.  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.      12. On  the contrary,  the language  of s.  7(1) of the 1952 Act  places a  definite hurdle in the way of construing s. 407  of the Cr.P.C. as overriding its provisions. For, it opens with the words:           "Notwithstanding anything contained in the Code of           Criminal Procedure, 1898 or in any other law". In  view  of  this  non-obstanti  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.      13. Thirdly,  whatever may be the position where a case is transferred from one special judge to another or from one ordinary subordirate  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  s. 7(1)  of the  1952 Act. As pointed out by the Supreme  Court in  Surajmal Mohta  v. Viswanatha Sastry, [1955] 1  S.C.R. 448  at pp.  464 in  a  slightly  different context, 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 132 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 contentions  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.      14.  Sri   Jethmalani  vehemently  contended  that  the construction of  s. 407  sought  for  by  the  appellant  is totally  opposed   to  well   settled  canons  of  statutory construction. He  urged that  the provisions of the 1952 Act should be  interpreted in the light of the objects it sought to achieve  and its  amplitude should not be extended beyond its limited  objective. He  said that  a construction of the Act which  leads to  repugnancy with,  or entails  pro tanto repeal of,  the basic  criminal procedural  law and seeks to divest jurisdiction  vested in  a superior  court should  be avoided. These  aspects have  been considered  earlier.  The 1952 Act  sought to  expedite the  trial of  cases involving

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public servants  by the  creation of courts presided over by experienced special  judges to  be appointed  by  the  State Government. There  is however  nothing implausible in saying that the  Act having already earmarked these cases for trial by experienced  Sessions Judges  made this  provision immune against the applicability of the provisions of other laws in general and  the Cr.P.C. in particular. Effect is only being given to  these express  and specific  words used in section 7(1) and  no  question  arises  of  any  construction  being encouraged that  is repugnant  to the Cr.P.C. Or involves an implied repeal, pro tanto, of its provisions. As has already been pointed out, if the requirement in s. 7(1) were held to be subordinate to the provisions contained in s. 406-7, then in principle,  even a case falling under the 1952 Act can be transferred to  any other  Sessions  Judge  and  that  would defeat the  whole purpose  of the  Act and  is  clearly  not envisaged by it.      Supreme Court’s power of transfer      15. It  will  have  been  noticed  that  the  power  of transfer under  section 407  or cl. 29 of the Letters Patent which has been discussed above is a power vested in the High Court. So  the question  will arise  whether, even  assuming that the  High Court  could have  exercised such  power, the Supreme Court could have done so. On behalf of the 133 respondent, it  was contended that, as the power of the High Court under  s. 407  can be  exercised on  application of  a party or  even suo  motu and  can be  exercised by it at any stage irrespective  of whether  any application or matter in connection with  the case  is pending  before it or not, the Supreme  Court,  as  an  appellate  Court,  has  a  co-equal jurisdiction to  exercise the  power of transfer in the same manner as  the High  Court could.  In any event, the Supreme Court  could   exercise  the  power  as  one  incidental  or ancillary to  the power of disposing of a revision or appeal before it.  The appellants,  however, contend  that, as  the power of  the Supreme  Court to  order transfer of cases has been specifically  provided for  in section  406  and  would normally exclude  cases of  intra-state transfer  covered by section 407  of the  Code, the  statute  should  not  be  so construed as  to imply  a power  of the  Supreme  Court,  in appeal or  revision, to  transfer a  case from a subordinate court to  the High Court. The argument also is that what the Supreme Court,  as an  appellate or  revisional court, could have done  was either  (a)  to  direct  the  High  Court  to consider whether  this was a fit case for it to exercise its power under  section 407(1)(iv)  to  withdraw  the  case  to itself and try the same with a view to expeditiously dispose it of or (b) to have withdrawn the case to itself for trial. But, it is contended, no power which the Supreme Court could exercise as  an appellate  or revisional  court  could  have enabled the  Supreme Court  to transfer  the case  from  the Special Judge to the High Court.      16. Here  also, the  contentions of  both  parties  are nicely balanced  but I  am inclined  to think  that had  the matter been  res integra  and directions  for transfer  were being sought  before us for the first time, this Court would have hesitated  to issue  such a  direction and  may at best have left  it to  the High  Court to consider the matter and exercise its  own discretion.  As already  pointed out,  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 envisaged either  inter-state transfers of cases i.e. from a court in  one State  to a  court in  another  State  or  the

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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 within  the jurisdiction  of the  appropriate High Court.  The attempt  of counsel for the resondent 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 134 case, it  is common ground that the question of transfer was not put in issue before the Supreme Court.      17.  The   reliance  placed  in  this  context  on  the provisions  contained   in  articles  140  and  142  of  the Constitution and S. 401 read with S. 386 of the Cr.P.C. does not also  help. Article  140 is  only a  provisions enabling Parliament to  confer supplementary  powers on  the  Supreme Court to  enable it to deal more effectively to exercise the jurisdication conferred  on it by or under the Constitution. Article 142  is also  not of  much assistance.  In the first place, the  operative words  in that  article, again are "in the exercise  of its  jurisdiction." The  Supreme Court  was hearing an  appeal from the order of discharge and connected matters. There  was no  issue or  controversy or  discussion before it  as to  the comparative merits of a trial before a special judge vis-a-vis one before the High Court. There was only an  oral request  said to  have been  made, admittedly, after the  judgment was  announced. Wide as the powers under article 141  are, they  do not in my view, envisage an order of the  type presently  in question. The Nanavati case (1961 SCR 497,  to which  reference was  made by  Sri  Jethmalani, involved a totally different type of situation. Secondly, it is one  of the contentions of the appellant that an order of this type,  far from  being  necessary  for  doing  complete justice in the cause or matter pending before the Court, has actually resulted in injustice, an aspect discussed a little later. Thirdly, however wide and plenary the language of the article, the  directions given  by the  Court should  not be inconsistent with,  repugnant to  or  in  violation  of  the specific provisions of any statute. If the provisions of the 1952 Act  read with  article 139-A  and  Ss.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, difficult 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 s. 407 available to it as an appellate court.      18. Learned  counsel for the complainant also sought to support the  order of  transfer by  reference to section 386 and 401  of the  1973 Cr.P.C.  He suggested  that the Court, having set  aside the order of discharge, had necessarily to think about consequential orders and that such directions as were issued  are fully justified by the above provisions. He relied in  this context on the decision of the Privy Council in Hari  v. Emperor,  AIR 1935  P.C.122. It  is difficult to accept this  argument. Section  401 provides  that,  in  the revision pending  before it, the High Court can exercise any of the powers conferred on a 135 court of appeal under section 386. Section 386, dealing with the powers  of the  appellate court  enables the court, in a case such as this: (i) under clause (a), to alter or reverse

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the order  under appeal/revision;  or (ii) under clause (e), to make  any amendment  or any  consequential or  incidental order that  may be just or proper. The decision relied on by counsel, Hari  v. Emperor,  AIR 1935  P.C.  122,  is  of  no assistance to  him. In  that case,  the Additional  Judicial Commissioner, who heard an appeal on a difference of opinion between two  other judicial  commissioner had  come  to  the conclusion that  the conviction had to be set aside. Then he had the  duty to determine what should be done and S. 426 of the 1898  Cr.P.C. (corresponding  to section 386 of the 1973 Cr.P.C.) exactly  provided for  the situation  and empowered him:           "to reverse the finding and sentence and acquit or           discharge the  accused or  order him to be retried           by a  court of  competent jurisdiction subordinate           to such apellate Court." In the  present case,  the  Special  Judge.  Sri  Sule,  had discharged the  accused because  of his conclusion, that the prosecution lacked the necessary sanction. The conclusion of the Supreme  Court that  this conclusion  was  wrong  meant, automatically,  that   the  prosecution  had  been  properly initiated and  that the proceedings before the Special Judge should go on. The direction that the trial should be shifted to the High Court can hardly be described as a consequential or incidental  order. Such  a direction  did not  flow, as a necessary consequence  of the conclusion of the court on the issues and  points  debated  before  it.  I  am,  therefore, inclined to  agree with  counsel for the appellant that this Court was  in error  when it  directed that the trial of the case should be before a High Court Judge.      19. It  follows from  the  above  discussion  that  the appellant, in  consequence of  the  impugned  direction,  is being tried  by a ’Court which has no jurisdiction-and which cannot be  empowered by  the Supreme  Court-to try  him. The continued trial  before the High Court, therefore, infringes Article 21 of the Constitution.      Denial of equality and violation of Article 21.      20. It was vehemently contended for the appellant that, by giving  the impugned  direction, this  Court has deprived the appellant  of his fundamental rights. He has been denied a right to equality, 136 inasmuch as  his case  has been  singled out  for trial by a different, though  higher, forum as compared to other public servants. His  fundamental right  under Article  21,  it  is said, has  been violated,  inasmuch  as  the  direction  has deprived him  of a right of revision and first appeal to the High Court which he would have had from an order or sentence had he  been tried  by a  Special Judge  and it  is doubtful whether he  would have  a right  to appeal  to this Court at all. It  is pointed out that a right of first appeal against a conviction  in a  criminal case  has been  held,  by  this Court, to  be a  part of  the fundamental  right  guaranteed under Article  21 of  the Constitution.  It is not necessary for me  to consider these arguments in view of my conclusion that the  High Court could not have been directed to try the petitioner’s case. I would, however, like to say that, 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 apellant’s 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

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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 secion 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  s.  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  is made exercisable  only  in  the  circumstances  set  out  in  the section. Such  a power  is not  only 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 S. 474 of the Cr.P.C. and section 8(3) of the 1952 Act makes it clear that he will be 137 tried in  accordance with  the  procedure  followed  by  the original Court  or ordinarily  by a  Court of  Session.  The accused will,  therefore, suffer  no prejudice  by reason of the application  of s.  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 interest 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.      21. Considerable  reliance was  placed on behalf of the appellant on  State v.  Anwar Ali Sarkar, [1952] S.C.R. 284. This decision  seems to  have influenced  the learned judges before whom  this  appeal  first  came  up  for  hearing  in referring the  matter to this larger Bench and has also been aplied to  the  facts  and  situation  here  by  my  learned brother, Sabyasachi Mukharji, J. But it seems to me that the said decision  has no relevance here. There, the category of cases which were to be allocated to a Special Judge were not well defined;  the selection  of cases was to be made by the executive; and  the procedure  to be followed by the special courts was  different from the normal criminal procedure. As already  pointed   out,  the   position  here   is  entirely different. The  1952 legislation  has been  enacted to  give effect to  the Tek  Chand Committee and to remedy a state of affairs prevalent  in respect  of a  well defined  class  of offences and  its provisions  constituting special judges to try offences  of corruption  is not  under challenge. Only a power of  transfer is  being exercised  by the Supreme Court which is  sought to  be traced back to the power of the High Court under  s. 407. The vires of that provision also is not being challenged.  What is  perhaps being  said is  that the Supreme Court  ought not  to have considered this case a fit one for  withdrawal for  trial to  the High Court. That plea should be  and is  being considered  here on  merits but the

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plea that  Article 14 has been violated by the exercise of a power under  s. 407  on the  strength of  Anwar Ali Sarkar’s case wholly  appears to  be untenable. Reference may be made in this  context to  Kathi Raning  Rawat  v.  The  State  of Saurashtra, [1952]  3  S.C.R. 435  and  Re:  Special  Courts Bill,  1978,  [1979]  2  S.C.R.  476  and  Shukla  v.  Delhi Administration, [1980]  3 S.C.R.  500, which have upheld the creation  of  special  judges  to  try  certain  classes  of offences.      22. It  may be  convenient at  this place  to refer  to certain observations  by the  Bench  of  this  Court,  while referring this  matter  to  the  larger  Bench,  in  a  note appended to  their order  on this aspect. The learned Judges have posed  the following questions in paragraphs 4 and 6 of their note: 138           "4. The  Criminal Law  Amendment Act,  1952 as its           preamble says  is passed  to provide  for speedier           trial? Does not further speeding up of the case by           transferring the case to the High Court for speedy           disposal violate  the principle laid down by seven           learned Judges of 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           observations of  Vivian  Bose,  J.  in  Anwar  Ali           Sarkar’s case  at pages  366-387 of the Report are           relevant:           ’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 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 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           government,   whether    the   process    can   be           scientifically classified and labelled, or whether           it is  an experiment  in speedier  trials made for           the good  of society  at large. It matters now how           lofty and  laudable the  motives are. The question           with which  I charge  myself is,  can fair-minded,           reasonable, unbiassed  and resolute  men, who  are           not swayed  by emotion  or prejudice,  regard this           with equanimity  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.’                                          (Underlining by us)           Do not  the above  observations apply  to judicial           orders also? 139

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         6. Does  the degree  of heinousness  of the  crime           with which  an accused is charged or his status or           the influence that he commands in society have any           bearing on  the applicability  or the constriction           of Article 14 or Article 21.?"      23. In  my opinion,  the answers to the questions posed will, again, depend on whether the impugned direction can be brought within  the scope of section 407 of the 1973 Cr.P.C. Or not.  If I  am right in my conclusion that it cannot, the direction will  clearly be contrary to the provisions of the Cr.P.C. and  hence violative  of Article  21. It  could also perhaps be  said to be discriminatory on the ground that, in the absence  of not  only a statutory provision but even any well defined  policy or criteria, the only two reasons given in the  order-namely, the status of the petitioner and delay in the  progress of  the trial-are inadequate to justify the special treatment  meted out  to the appellant. On the other hand,  if   the  provisions   of  section  407  Cr.P.C.  are applicable, the  direction will  be  in  consonance  with  a procedure prescribed  by law  and hence  safe from attack as violative of  Article 21.  The reasons given, in the context of the  developments in  the case,  can also be sought to be justified in  terms of  clauses (a),  (b) or  (c) of Section 407(1). In  such an  event, the direction will not amount to an arbitrary  discrimination but  can be  justified  as  the exercise of  a choice  of courses  permitted under  a  valid statutory classification intended to serve a public purpose.      24. 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.  One possible view is that now all original criminal jurisdiction exercised by  High  Court  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 enactments (e.g. Companies’ Act Ss.  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 withdrawn by the High Court to itself for trial. The 140 decision in  Madura Tirupparankundram  etc. v. Nikhan Sahib, 35 C.W.N.  1088, Kavasji  Pestonji v.  Rustomji Sorabji, AIR 1949 Bombay  42, Sunil Chandra Roy and another v. The State, AIR 1954 Calcutta 305, People’s Insurance Co. Ltd. v. Sardul Singh Caveeshar  and others, AIR 1961 Punjab 87 and People’s Patriotic Front  v. K.K. Birla and others, [1984] Crl. L.J . 545 cited  by him  amply support this contention. If this be so, then Sri Jethmalani is also right in saying that a right of first  appeal to  the Supreme  Court  against  the  order passed by  the High  Court will  be available to the accused under s.  374 of  the 1973  Cr.P.C. In  other words,  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

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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 Court’s judgment, the  Supreme  Court  will  consider  any  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. (see, in this context, the  observations of  this Court  in Sadananthan v. Arunachalam, [1980]  2 S.C.R.  673. That,  apart it  may  be pointed out, this is also an argument that would be valid in respect even  of ordinary  criminal trials  withdrawn to the High Court  under s.  407 of  the Cr.P.C. and thus, like the previous   argument   regarding   Article   14,   indirectly challenges  the  validity  of  S.407  itself  as  infringing Article 21.  For the  reasons discussed,  I have come to the conclusion that an accused, tried directly by the High Court by withdrawal  of his  case from  a subordinate court, has a right of  appeal to  the Supreme  Court under  s. 374 of the Cr.P.C. The  allegation of an infringement of Article 2 1 in such cases is. therefore. unfounded. Natural Justice      25.  The   appellant’s  contention  that  the  impugned direction  is  sued  by  this  Court  on  16.2.1984  was  in violation of the principles of natural justice appears to be well founded.  It is  really not  in dispute  before us that there was no whisper or suggestion in the proceedings before this Court  that the venue of the trial should be shifted to the High  Court. This  direction was  issued suo motu by the learned Judges  without putting  it to  the counsel  for the parties that this was what they 141 proposed to  do. The difficulties created by observations or directions on  issues not debated before the Court have been highlighted by  Lord Diplock  in Hadmor  Productions Ltd. v. Hamilton, [1983]  A.C. 191).  In that case, Lord Denning, in the Court  of Appeal,  had in  his  judgment,  relied  on  a certain passage  from  the  speech  of  Lord  Wedderburn  in Parliament as reported in Hansard (Parliamentary Reports) in support of  the view  taken by  him.  The  counsel  for  the parties had  had no inkling or information that recourse was likely to be had by the Judge to this source, as it had been authoritatively held  by the  House of  Lords  in  Davis  v. Johns, [1979]  A.C. 264  that these  reports should  not  be referred to  by counsel  or relied upon by the court for any purpose. Commenting on this aspect, Lord Diplock observed:           "Under our  adversary system  of procedure,  for a           judge to  disregard the  rule by which counsel are           bound has  the effect  of depriving the parties to           the action  of the  benefit of  one  of  the  most           fundamental rules of natural justice: the right of           each to  be informed  of any  point adverse to him           that is  going to  be relied upon by the judge and           to be  given an  opportunity of  stating what  his           answer to  it is. In the instant case, counsel for           Hamilton and  Bould complained  that Lord  Denning           M.R. had  selected one  speech alone  to rely upon           out of  many that had been made .. and that, if he           has counsel  had known  that  (Lord  Denning)  was           going to do that, not only would he have wished to

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         criticise what  Lord Wedderburn  had said  in  his           speech .......  but he  would also  have wished to           rely  on  other  speeches  disagreeing  with  Lord           Wedderburn if he, as counsel, had been entitled to           refer to Hansard ....." The position  is somewhat  worse in the present case. Unlike the Hamilton  case (supra)  where the  Judge had  only  used Hansard to  deal with an issue that arose in the appeal, the direction in the present case was something totally alien to the scope of the appeal, on an issue that was neither raised nor debated  in the  course of  the hearing  and  completely unexpected.      26. Shri  Jethmalani submitted  that, when the judgment was  announced,   counsel  for   the  complainant   (present respondent) had  made an  oral request  that  the  trial  be transferred to  the High  Court and  that the Judges replied that they  had already done that. He submitted that, at that time and  subsequently, the  appellant could  have protested and put forward his objections but did not and had thus 142 acquiesced in a direction which was, in truth, beneficial to him as  this Court had only directed that he should be tried by a  High Court Judge, a direction against which no one can reasonably  complain.   This  aspect   of  the  respondent’s arguments will be dealt with later but, for the present, all that is  necessary is  to say  that the  direction must have come as  a surprise  to the  appellant and  had been  issued without hearing him on the course proposed to be adopted.      Conclusion      27. To  sum up,  my conclusion  on issue  A is that the direction issued  by the  Court was  not warranted  in  law, being contrary  to the  special provisions  of the 1952 Act. was also  not in  conformity with  the principles of natural justice and that, unless the direction can be justified with reference to  S. 407  of  the  Cr.  P.C.,  the  petitioner’s fundamental rights  under Articles  14 and 21 can be said to have been  infringed by reason of this direction. This takes me on  to the  question whether  it follows as a consequence that the  direction issued  can be,  or should be, recalled, annulled, revoked or set aside by us now.        B. CAN AND SHOULD THE DIRECTION OF 16.2.84 BE                          RECALLED?      28. It  will be  appreciated that,  whatever may be the ultimate  conclusion   on  the   correctness,  propriety  or otherwise of the Court’s direction dated 16.2.1984, that was a direction  given by this Court in a proceeding between the same parties and the important and farreaching question that falls for  consideration is whether it is at all open to the appellant to  seek to  challenge  the  correctness  of  that direction at a later stage of the same trial.      Is a review possible?      29. The  first thought  that would occur to any one 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.  Realising that  this would  be a direct and straight forward  remedy, it was contended for the appellant that the present appeal may be treated as an application for such review.      30. The  power of  review is conferred on this Court by Article 137 of the Constitution which reads thus: 143           "Subject to  the provisions  of any  law  made  by           Parliament or  any rules  made under  Article 145,

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         the Supreme  Court shall  have power to review any           judgment pronounced or order made by it." 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 art.  145 which  are contained in  order XL  in Part  VIII of  the Supreme  Court Rules. Three  of these  rules are  relevant for  our present purposes. They read as follows:           "(1) The  Court may  review its judgment or order,           but no  appliction for  review will be entertained           in  a   civil  proceeding  except  on  the  ground           mentioned in  order XLVII, rule 1 of the Code, and           in a  criminal proceeding  except on the ground of           an error apparent on the face of the record.           (Z) An  application  for  review  shall  be  by  a           petition. and  shall be  filed within  thirty days           from the  date of  the judgment or order sought to           be reviewed.  It shall set out clearly its grounds           for review.           (3) Unless  otherwise  ordered  by  the  Court  an           application for  review shall  be disposed  of  by           circulation without  any oral  arguments, but  the           petitioner  may   supplement   his   petition   by           additional written arguments. The court may either           dismiss the  petition  or  direct  notice  to  the           opposite party. An application for review shall as           far as practicable be circulated to the same Judge           or Bench  of Judges that delivered the judgment or           order sought to be reviewed."      31. It  is contended  on behalf  of the respondent that the present  pleas of  the appellant cannot be treated as an application for review, firstly, because they do not seek to rectify any  error apparent  on  the  face  of  the  record; secondly, because  the prayer is being made after the expiry of the  period of  thirty days mentioned in rule 2 and there is no sufficient cause for condoning the delay in the making of the application and thirdly, for the reason that a review petition has  to be  listed as far as practicable before the same Judge  or Bench  of Judges  that  delivered  the  order sought to  be reviewed  and in this case at least two of the learned Judges, who passed the order on 16.2.1984, are still available to  consider the  application  for  review.  These grounds may now be considered. 144      32. For  reasons which  I shall  later discuss, I am of opinion that  the order dated 16.2.1984 does not suffer from any error  apparent on  the face  of the record which can be rectified on  a review  application. So  far as  the  second point is  concerned, it is common ground that the prayer for review has  been made  beyond the period mentioned in Rule 2 of order  XL of the Supreme Court Rules. No doubt this Court has power  to extend the time within which a review petition may  be   filed  but  learned  counsel  for  the  respondent vehemently contended  that  this  is  not  a  fit  case  for exercising the  power of  condonation of  delay. It is urged that, far  from this  being a fit case for the entertainment of the  application for  review beyond  the time prescribed, the history  of the  case will  show that the petitioner has deliberately avoided  filing a  review petition  within  the time prescribed for reasons best known to himself .      33. In  support of  his contention, learned counsel for the  respondent  invited  our  attention  to  the  following sequence of events and made the following points:      (a)   The order  of this Court was passed on 16.2.1984.

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         At the  time of  the  pronouncement  of  the  said           order, counsel for the present respondent had made           a request  that the  trial  of  the  case  may  be           shifted to  the  High  Court  and  the  Court  had           observed that  a direction to this effect had been           included in the judgment. Even assuming that there           had  been   no  issues  raised  and  no  arguments           advanced on  the question  of transfer at the time           of the  hearing of  the appeals, there was nothing           to preclude  the counsel  for the  appellant, when           the counsel  for the  complainant made  the  above           request, from  contending that  it should  not  be           done, or,  at least,  that it  should not  be done           without further  hearing him and pointing out this           was not  a matter  which had  been debated  at the           hearing of the appeal. But no, the counsel for the           accused chose  to remain  quiet and  did not raise           any objection at that point of time. He could have           filed a  review application soon thereafter but he           did not  do so.  Perhaps he  considered,  at  that           stage, that  the order which after all enabled him           to be tried by a High Court Judge in preference to           a  Special   Judge  was  favourable  to  him  and,           therefore, he did not choose to object.      (b)   The matter came up before the trial judge on 13th           March, 1984.  The accused, who appeared in person,           stated that he 145           did not  want to  engage any counsel "at least for           the  present’.   A  He  would  not  put  down  his           arguments  in  writing  and  when  he  argued  the           gravemen of his attack was that this Court’s order           transferring the  trial from  the Special Judge to           the High Court was wrong on merits. Naturally, the           learned Judge  found it  difficult to  accept  the           contention that  he should  go behind the order of           the Supreme  Court. He rightly pointed out that if           the accused  had any grievance to make, his proper           remedy was to move the Supreme Court for review of           its judgment  or for  such further  directions  or           clarifications as may be expedient. Thus, as early           as 13th  March, 1984,  Khatri,  J.,  had  given  a           specific opportunity  to the  accused to  come  to           this Court  and seek a review of the direction. it           can perhaps  be said  that on 16.2.1984, when this           Court passed the impugned direction, the appellant           was not  fully conscious of the impact of the said           direction and  that, therefore,  he did not object           to it  immediately. But,  by the 13th March, 1984,           he had ample time to think about the matter and to           consult his  counsel. The  appellant himself was a           barrister. He  chose not  to engage counsel but to           argue himself  and, even  after  the  trial  court           specifically pointed  out to him that it was bound           by the direction of this Court under Arts. 141 and           144 of  the Constitution  and that, if at all, his           remedy was  to go  to the  Supreme Court by way of           review  or   by  way   of   an   application   for           clarification, he chose to take no action thereon.      c)    on  16th March,  1984, Khatri, J. disposed of the           preliminary  objections   raised  by  the  accused           challenging the  jurisdiction  and  competence  of           this Court  to try  the accused.  Counsel for  the           respondent points  out that,  at the  time of  the           hearing, the appellant had urged before Khatri, J.

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         all the  objections to  the trial, which he is now           putting  forth.   These   objections   have   been           summarised in  paragraph 3  of the order passed by           the learned  Judge and  each one  of them has been           dealt with  elaborately by  the learned  Judge. It           has been pointed out by him that the Supreme Court           was considering  not only the appeals preferred by           the accused  and  the  complainant,  namely,  Crl.           Appeal Nos.  246, 247 and 356 of 1983 but also two           revision petitions being C.R. Nos. 354 ’and 359 of           1983 which had been withdrawn by the Supreme Court           to itself  for disposal along with Crl. Appeal No.           356 of  1983. A  little later  in  the  order  the           learned Judge pointed out that, even 146           assuming that  in the first instance the trial can           be  conducted   only  by   a  Special  Judge,  the           proceedings could  be withdrawn  by the high Court           to itself  under powers vested in it under Article           228(a) of  the Constitution as well as section 407           of the  Cr.P.C. When  the criminal revisions stood           transferred  to   the  Supreme   Court  (this  was           obviously done  under Article  139-A  though  that           article  is  not  specifically  mentioned  in  the           judgment of  the Supreme Court), the Supreme Court           could pass the order under Article 139-A read with           Article 142.  The learned  Judge also  disposed of           the objections based on Article 21. He pointed out           that as  against an  ordinary accused person tried           by a  special judge, who gets a right of appeal to           the High  Court, a court of superior jurisdiction,           with a  further right  of appeal  to  the  Supreme           Court under  s. 374  of the  Cr.P.C. and  that  an           order  of  transfer  passed  in  the  interest  of           expeditious disposal  of a  trial was primarily in           the interests  of the  accused and could hardly be           said to  be pre  judicial to  the accused. Despite           the very careful and fully detailed reasons passed           by the High Court, the appellant did not choose to           seek a review of the earlier direction.      (d)   Against the  order of  the  learned  Judge  dated           16.3.1984  the   complainant  came  to  the  Court           because   he   was   dissatisfied   with   certain           observations made  by the trial Judge in regard to           the procedure  to be followed by the High Court in           proceeding with  the trial.  This matter was heard           in open  court by same five learned Judges who had           disposed of  the matter  earlier on 16.2.1984. The           accused was  represented by  a senior  counsel and           the Government  of Maharashtra  had also engaged a           senior counsel to represent its case. Even at this           hearing the  counsel for  the  appellant  did  not           choose  to   raise  any   objection  against   the           direction given  in the order dated 16.2.1984. The           appeal before  the Supreme Court was for getting a           clarification of  the very  order dated 16.2.1984.           This was  a golden  opportunity for  the appellant           also to  seek a  review or  clarification  of  the           impugned direction,  if really  he had a grievance           that he  had not been heard by the Court before it           issued the direction and that it was also contrary           to the  provisions of  the 1952  Act  as  well  as           violative of  the rights of the accused under Art.           21 of the Constitution.      (e)   The petitioner  instead filed  two special  leave

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         petitions and  a writ  petition against the orders           of Khatri. J. dated 13.3.1984 147           and  16.3.1984.   In  the   writ   petition,   the           petitioner  had   mentioned  that   the   impugned           direction had  been issued without hearing him. In           these matters  counsel for  the accused  made both           oral and  written submissions  and all contentions           and arguments,  which have  now been  put forward,           had been  raised in  the  written  arguments.  The           appeals and writ petition were disposed of by this           Court. This  Court naturally dismissed the special           leave petitions  pointing out  that the High Court           was quite  correct in  considering itself bound by           the  directions  of  the  Court.  The  Court  also           dismissed the  writ petition as without merit. But           once again  it observed  that the proper remedy of           the petitioner  was elsewhere  and not by way of a           writ petition.  These two orders, according to the           learned counsel  for the  respondent, conclude the           matter against the appellant. The dismissal of the           writ petition reminded the petitioner of his right           to move  the Court by other means and, though this           advice was  tendered as  early as  17.4.1984,  the           petitioner did  nothing. So  far  as  the  special           leave petition  was concerned, its dismissal meant           the affirmation  in full  of the decision given by           Justice Khatri dismissing and disposing of all the           objections raised  by the  petitioner before  him.           Whatever may  have been  the position on 16.2.1984           or 16.3.1984,  there was absolutely no explanation           or justification for the conduct of the petitioner           in failing  to  file  an  application  for  review           between 17.4.1984 and october, 1986.      34. Recounting  the above  history, which  according to him fully  explained the  attitude of  the accused,  learned counsel for  the respondent  submitted that  in his view the appellant was  obviously trying  to avoid  a review petition perhaps because  it was likely to go before the same learned Judges and he did not think that he would get any relief and perhaps also  because he  might have  felt that a review was not an adequate remedy for him as, under the rules, it would be disposed  of in  chamber without  hearing him once again. But, whatever  may be the reason, it is submitted, the delay between  April   1984  and   october,  1986   stood  totally unexplained and even now there was no proper review petition before this  Court. In  the circumstances,  it is urged that this present belated prayer for review.      35. There is substance in these contentions. 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 148 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  respondent’s contention 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

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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 given relief on that basis has to be rejected. Is a writ maintainable?      36. This  takes one  to a  consideration of  the second line of  attack by  the appellant’s counsel. His proposition was that  a judicial order of a court-even the High Court or this Court  may breach  the principles of natural justice or the fundamental  rights and  that, if  it does so, it can be quashed by  this Court  in the  exercise of its jurisdiction under Article  32. In other words, the plea would seem to be that the present proceedings may be treated as in the nature of a  writ petition to quash the impugned order on the above ground. The  earliest of  the cases  relied upon  to support this contention is the decision in Prem Chand Garg v. Excise Commissioner, [1963]  Supp. 1  S.C.R. 885, which may perhaps be  described   as  the   sheet-anchor  of  the  appellant’s contentions on  this point. The facts of that case have been set out  in the judgment of Sabyasachi Mukharji, J. and need not be  repeated. The  case was  heard by  a Bench  of  five judges. Four  of them,  speaking through  Gajendragadkar, J. held that  Rule 12  of order XXXV of the Supreme Court Rules violated Article  32 and  declared it invalid. This also set aside an  earlier order dated 12.12.1961 passed by the Court in pursuance  of the  rule calling  upon the  petitioner  to deposit cash  security. Sri  Rao contended  that  this  case involved two separate issues for consideration by the Court: (a) the  validity of  the rule  and (b)  the validity of the order dated  12.12.1961; and  that the decision is authority not only  for the  proposition that  a writ  petition  under Article 32  could be  filed  to  Impugn  the  constitutional validity of  a rule  but also  for the  proposition that the Court could  entertain  a  writ  petition  to  set  aside  a judicial 149 Order passed  by the Court earlier on discovering that it is inconsistent with  the fundamental rights of the petitioner. Counsel submitted  that an  impression in  the minds of some persons that the decision in Prem Chand Garg is not good law after the decision of the nine-Judge Bench in Naresh Sridhar Mirajkar v.  State, [1966]3  S.C.R.  744  is  incorrect.  He submitted that, far from Garg’s case being overruled, it has been confirmed in the later case.      37. Mirajkar  was a  case in  which the  validity of an interlocutory order  passed by  a judge  of the  Bombay High Court pertaining  to  the  publication  of  reports  of  the proceedings in a suit pending before him was challenged by a journalist as violating his fundamental rights under Article 19 of the Constitution. The matter came to the Supreme Court by way  of a writ petition under Article 32. The validity of the order  was upheld  by the  majority of  the Judges while Hidayatullah  J.   dissented.  In   this  connection  it  is necessary to refer to a passage at p. 767 in the judgment of Gajendragadkar, C.J.           "Mr. Setalvad  has conceded  that if  a  court  of           competent  jurisdiction   makes  an   order  in  a           proceeding before  it, and  the  order  is  inter-           partes,  its  validity  cannot  be  challenged  by           invoking the jurisdiction of this Court under Art.           32, though the said order may affect the aggrieved           party’s fundamental  rights.  His  whole  argument

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         before us has been that the impugned order affects           the  fundamental  rights  of  a  stranger  to  the           proceeding  before   the  Court;   and  that,   he           contends, justifies the petitioners in moving this           Court under  Artc. 32.  It is necessary to examine           the validity of this argument.      The question  before the  Supreme Court  was thus as to whether, even  at the  instance of a stranger to the earlier proceedings, the  earlier order could be challenged by means of a  writ petition  under Article  32. One of the questions that had  to be  considered by  the Court  was  whether  the judicial order passed by the learned judge of the High Court was amenable  to be  writ jurisdiction  of the  Court  under Article  32.   On  this   question,   the   judges   reacted differently:      (i) Gajendragadkar,  CJ and  Wanchoo, Mudholkar,  Sikri and Ramaswamy, JJ. had this to say:           "The High  Court is a superior Court of Record and           it is  for it to consider whether any matter falls           within its jurisdiction 150           Or not. The order is a judicial order and if it is           erroneous, a  person aggrieved  by  it,  though  a           stranger, could  move this Court under Article 136           and the  order can  be corrected in appeal but the           question  about   the  existence   of   the   said           jurisdiction  as  well  as  the  validity  or  the           propriety of  the order  cannot be  raised in writ           proceedings under article 32.’,      (ii) Sarkar  J. also  concurred in  the view  that this Court had  no power to issue a certiorari to the High Court. He observed:           "I confess  the question is of some haziness. That           haziness arises  because the courts in our country           which have  been given the power to issue the writ           are not  fully analogous  to  the  English  courts           having that  power. We  have to seek a way out for           ourselves.  Having   given  the   matter  my  best           consideration, I  venture to think that it was not           contemplated that  a High  Court  is  an  inferior           court  even  though  it  is  a  court  of  limited           jurisdiction. The  Constitution gave  power to the           High Court  to issue  the  writ.  In  England,  an           inferior court could never issue the writ. I think           it  would   be  abhorrent   to  the  principle  of           certiorari if  a Court  which can itself issue the           writ is  to be  made subject  to be corrected by a           writ issued by another court. When a court has the           power to  issue the  writ, it  is not according to           the  fundamental   principles  of  certiorari,  an           inferior court or a court of limited jurisdiction.           It does  not cease  to be so because another Court           to which appeals from it lie has also the power to           issue  the   writ.  That   should  furnish  strong           justification for saying that the Constitution did           not contemplate  the High  Courts to  be  inferior           courts so  that their decisions would be liable to           be quashed  by writs  issued by  the Supreme Court           which also  had been  given  power  to  issue  the           writs. Nor  do I  think that  the cause of justice           will in  any manner be affected if a High Court is           not made  amenable to correct by this Court by the           issue of  the writ. In my opinion, therefore, this           Court has  not power  to issue  a certiorari  to a           High Court."

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    (iii) Bachawat J. held:           "The High  Court has  jurisdiction to decide if it           could restrain  the publication of any document or           information relating  to the  trial of  a  pending           suit or concerning which the 151           suit  is  brought,  if  it  erroneously  assume  a           jurisdiction not vested in it, its decision may be           set  aside  in  appropriate  proceedings  but  the           decision is not open to attack under Article 32 on           the ground that it infringes the fundamental right           under  Article   19(1)(a).  If   a   stranger   is           prejudiced by  an order forbidding the publication           of the report of any proceeding, his proper course           is only to apply to the Court tn lift the ban "      (iv) Justice  Shah thought  that, in  principle, a writ petition could  perhaps be  filed to challenge an order of a High Court  on the  ground that  it violated the fundamental rights of the petitioner under Articles 20, 21 and 22 but he left the question open. He, however, concluded that an order of the nature in issue before the Court could not be said to infringe Article 19.      38. Hidayatullah J., as His Lordship then was, however, dissented. He observed:           "Even  assuming   the  impugned   order  means   a           temporary  suppression  of  the  evidence  of  the           witness, the  trial Judge  had no  jurisdiction to           pass the  order. As  he passed  no recorded order,           the appropriate remedy (in fact the only effective           remedy) is  to seek  to quash  the order by a writ           under Article 32.           There may  be action  by a  Judge which may offend           the fundamental  rights under articles 14, 15, 19,           20, 21 and 22 and an appeal to this Court will not           only  be   practicable  but   will  also   be   an           ineffective remedy and this Court can issue a writ           to the High Court to quash its order under Article           32  of   the  Constitution.   Since  there  is  no           exception in  Article 32  in respect  of the  High           Courts there is a presumption that the High Courts           are not  excluded.  Even  with  the  enactment  of           Article 226,  the power  which is conferred on the           High Court  is not  in every  sense  a  coordinate           power and  the implication of reading articles 32,           136 and  226 together  is that there is no sharing           of the  powers  to  issue  the  prerogative  writs           possessed by this Court. Under the total scheme of           the Constitution,  the subordination  of the  High           Courts to  the Supreme  Court is  not only evident           but is logical." His Lordship  proceeded to  meet an  objection that  such  a course might 152 cast a  slur on  the High  Courts or  open the floodgates of litigation. He observed:           "Article 32  is concerned  with Fundamental Rights           and Fundamental  Rights only.  It is not concerned           with  breaches   of  law   which  do  not  involve           fundamental rights directly. The ordinary writs of           certiorari,  mandamus  and  prohibition  can  only           issue by  enforcement  of  Fundamental  Rights.  A           clear cut  case of  breach  of  Fundamental  Right           alone can  be the  basis for  the exercise of this           power. I have already given examples of actions of           courts and judges which are not instances of wrong

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         judicial orders  capable of  being brought  before           this  court   only  by   appeal  but  breaches  of           Fundamental Rights  clear and  simple.  Denial  of           equality as  for example by excluding members of a           particular party or of a particular community from           the public  court room in a public hearing without           any fault,  when others  are allowed  to  stay  on           would be  a case of breach of fundamental right of           equal protection  given by this Constitution. Must           an affected person in such a case ask the Judge to           write down  his  order,  so  that  he  may  appeal           against it?  or is  he expected to ask for special           leave from  this Court?  If a  High Court judge in           England acted  improperly, there  may be no remedy           because of  the limitations  on the  rights of the           subject   against   the   Crown.   But   in   such           circumstances in England the hearing is considered           vitiated and  the decision voidable. This need not           arise here.  The High  Court  in  our  country  in           similar circumstances  is not immune because there           is a  remedy to move this court for a writ against           discriminatory treatment and this Court should not           in a suitable case shirk to issue a writ to a High           Court Judge,  who ignores  the fundamental  rights           and his  obligations under the Constitution. Other           cases can easily be imagined under Article 14, 15,           19, 20,  21 and  22 of  the Constitution, in which           there may  be action  by a  Judge which may offend           the fundamental  rights and  in which an appeal to           this Court  will not  only be  not practicable but           also quite an ineffective remedy.           We need not be dismayed that the view I take means           a slur  on the High Courts or that this Court will           be flooded  with petitions under Article 32 of the           Constitution. Although  the High  Courts possess a           power to interfere by way of high 153           prerogative  writs  of  certiorari,  mandamus  and           prohibition, such  powers have  not  been  invoked           against the normal and routine work of subordinate           courts and  tribunals. The  reason is  that people           understand the  difference between  an approach to           the High Court by way of appeals etc. and approach           for the  purpose of asking for writs under Article           226. Nor have the High Courts spread a Procrustean           bed for  high prerogative writs for all actions to           lie. Decisions  of the  courts have been subjected           to statutory  appeals and revisions but the losing           side has  not charged  the Judge  with a breach of           fundamental rights  because he  ordered attachment           of  property   belonging  to  a  stranger  to  the           litigation or  by his order affected rights of the           parties or  even strangers.  This is  because  the           people understand  the difference  between  normal           proceedings of  a civil  nature and proceedings in           which there is a breach of fundamental rights. The           courts acts,  between  parties  and  even  between           parties  and   strangers,  done  impersonally  and           objectively are  challengeable under  the ordinary           law only.  But acts which involve the court with a           fundamental right are quite different."      One more  passage from the judgment needs to be quoted. Observed the learned Judge:           "I may  dispose of  a few  results  which  it  was           suggested, might flow from my view that this Court

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         can issue  a high  prerogative writ  to  the  High           Court for  enforcement of  fundamental rights.  It           was suggested  that the  High Courts  might  issue           writs to  this Court  and to other High Courts and           one Judge  or Bench  in the  High  Court  and  the           Supreme Court  might issue a writ to another judge           or Bench  in the  same Court. This is an erroneous           assumption. To begin with High Courts cannot issue           a writ  to the Supreme Court because the writ goes           down and  not up.  Similarly, a  High Court cannot           issue a  writ to another High Court. The writ does           not go  to a  court placed  on an equal footing in           the matter of jurisdiction                           XX XX XX           I must  hold that  this English  practice  of  not           issuing writs  in the  same court  is in  the very           nature of  things. One High Court will thus not be           able to issue a writ to another High 154           Court nor even to a court exercising the powers of           the High  Court.  In  so  far  as  this  Court  is           concerned, the  argument that  one  Bench  or  one           Judge might  issue a  writ  to  another  Bench  or           Judge, need hardly be considered. My opinion gives           no support  to such  a view and I hope I have said           nothing to  give  countenance  to  it.  These  are           imaginary fears  which have  no reality  either in           law or in fact."      39. I have set out at length portions from the judgment of Hidayatullah, J. as Shri Rao placed considerable reliance on it.  From the  above extracts,  it will  be seen that the majority of  the Court  was clearly of opinion that an order of a  High Court  cannot be  challenged by  way  of  a  writ petition under  Article 32 of the Constitution on the ground that it  violates the  fundamental rights,  not even  at the instance of  a person  who was  not at  all a  party to  the proceedings in  which the  earlier order  was  passed.  Even Hidayatullah, J. has clearly expressed the view that, though a writ  of certiorari  might issue  to quash  the order of a High Court  in appropriate  case, it cannot lie from a Bench of one  court to another Bench of the same High Court. Subba Rao, C.J.  has also  made an  observation to  like effect in regard to  High Court  Benches inter  se in Ghulam Sarwar v. Union, [1967] 2 S.C.R. 271. The decision in Prem Chand Garg, seems to  indicate  to  the  contrary.  But  it  is  clearly distinguishable and has been distinguished by the nine judge Bench in  Mirajkar. The observations of Gujendragadkar, C.J. (at p.  766), and  Sarkar, J.  (at p.  780), be seen in this context. In  that case,  it is true that the order passed by the Court  directing the  appellant to  deposit security was also quashed but that was a purely consequential order which followed on  the well-founded  challenge to  the validity of the rule.  Hidayatullah, J. also agreed that this was so and explained that  the judicial decision which was based on the rule was only revised. (p.790).      40.  Sri   Rao  also   referred   to   Sadhanatham   v. Arunachalam,  [1980]   2  S.C.R.  873.  In  that  case,  the petitioner was  acquitted by  the High  Court, in appeal, of charges under  section 302 and 148 of the Indian Penal Code. The brother of the deceased, not the State or the informant, petitioned this  court under Article 136 of the Constitution for special leave to appeal against the acquittal. Leave was granted and  his appeal  was eventually  allowed by the High Court. The  judgment of the High Court was set aside and the conviction and  sentence imposed  by the  trial court  under

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section 302  was upheld  by the Supreme Court in his earlier decision reported  in [1979]  3 S.C.R.  482. Thereupon,  the petitioner filed  a writ  petition under  Article 32  of the Constitution, 155 challenging the validity of the earlier order of this Court. Eventually, the  petition was dismissed on the merits of the case. However,  learned counsel  for the  appellant strongly relied on  the fact that in this case a Bench of five judges of this  Court entertained  a petition  under Article  32 to reconsider a  decision passed  by it in an appeal before the Court. He  submitted that  it was  inconceivable that it did not occur  to the  learned judges who decided the case that, after Mirajkar,  a writ petition under Article 32 was not at all entertainable.  He, therefore, relied upon this judgment as supporting  his proposition  that in  an appropriate case this court  can entertain  a petition  under Article  32 and review an earlier decision of this court passed on an appeal or on  a writ  petition or  otherwise. This decision, one is constrained to  remark, is  of no  direct assistance  to the appellant. It  is no  authority for  the proposition that an earlier order  of the  court could  be quashed on the ground that it  offends the  Fundamental Right. As the petition was eventually dismissed on the merits, it was not necessary for the court  to consider  whether, if  they had  come  to  the conclusion that  the earlier order was incorrect or invalid, they would  have interfered  therewith on  the writ petition filed by the petitioner.      41. Two  more decisions  referred to  on behalf  of the appellant may  be touched  upon  here.  The  first  was  the decision of  this Court  in Attorney-General v. Lachma Devi, AIR 1986 S.C. 467. In that case the High Court had passed an order that  certain persons found guilty of murder should be hanged in  public. This  order  was  challenged  by  a  writ petition filed  under article  32 by the Attorney-General of India, on  the ground  that it  violated Article  21 of  the Constitution. This  petition was  allowed by this Court. The second decision  on which  reliance was  placed is  that  in Sukhdas v.  Union Territory,  [1986] 2  S.C.C. 401.  In that case the  petitioner, accused  of a criminal offence had not been provided  with  legal  assistance  by  the  court.  The Supreme Court  pointed out  that this  was a  constitutional lapse on  the part  of the  court and that the conviction on the face  of the  record suffered  from a  fatal  infirmity. These decisions  do not  carry the  petitioner any  further. Sukhdas was a decision on an appeal and Lachma Devi does not go beyond  the views expressed by Hidayatullah, J. and Shah, J. in Mirajkar.      42. On  a survey  of these  decisions, it appears to me that Prem  Chand Garg  cannot be treated as an authority for the proposition that an earlier order of this Court could be quashed by  the issue  of a  writ  on  the  ground  that  it violated the  fundamental rights. Mirajkar clearly precludes such a course. It is, therefore, not possible to accept the 156 appellant’s plea  that the  direction dated 16.2.1984 should be quashed on the grounds put forward by the petitioner. Inherent power to declare orders to be null and void      43. The  next line  of argument  of learned counsel for the appellant  is that  the order dated 16.2.1984, in so far as it  contained the  impugned  direction,  was  a  complete nullity. Being  an order  without jurisdiction,  it could be ignored by  the person  affected or challenged by him at any stage of the proceedings before any Court, particularly in a criminal  case,  vide  Dhirendra  Kumar  v.  Superintendent,

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[1955] 1  S.C.R. 224.  Counsel also  relied on the following observations   made   in   Kiran   Singh  v . Chaman Paswan, [AIR 1955 S.C.R. 117.]           "The answer  to these  contentions must  depend on           what  the   position  in   law  is  when  a  Court           entertains a  suit or  an appeal over which it has           no jurisdiction, and what the effect of Section 11           of the Suits Valuation Act is on that position. It           is a  fundamental princple well established that a           decree passed by a Court without jurisdiction is a           nullity, and  that its  invalidity could be set up           whenever and  wherever it is sought to be enforced           or relied upon, even at the stage of execution and           even  in   collateral  proceedings.  A  defect  of           jurisdiction,   whether   it   is   pecuniary   or           territorial, or  whether it  is in  respect of the           subject matter  of the action, strikes at the very           authority of  the Court  to pass  any decree,  and           such a  defect cannot  be cured even by consent of           parties. If  the question  now under consideration           fell to  be determined  only on the application of           general principles governing the matter, there can           be no doubt that the District Court of Monghyr was           coram non  judice,  and  that  its  judgments  and           decree would be nullities.           (emphasis added) He also  extensively quoted  from the dicta of this Court in M. L.  Sethi v. R.P. Kapur, [1973] 1 S.C.R. 697, where after setting out  the speeches  of Lord  Reid and  Lord Pearce in Anisminic Ltd.  v. Foreign Compensation Commissioner, [1969] 2 A.C. 147 this Court observed:           "The dicta  of the  majority of the House of Lords           in the  above case  would show the extent to which           ’lack’ and  ’excess’  of  jurisdiction  have  been           assimilated or,  in other  words,  the  extent  to           which we have moved away from the 157           traditional concept  of "jurisdiction". The effect           of the  dicta  in  that  case  is  to  reduce  the           difference between  jurisdictional error and error           of law  within jurisdiction  almost  to  vanishing           point. The  practical effect  of the  decision  is           that  any   error  of   law  can  be  reckoned  as           jurisdictional. This  comes  perilously  close  to           saying that  there is jurisdiction if the decision           is right  in law  but none  if it is wrong. Almost           any  misconstruction   of   a   statute   can   be           represented as  "basing their decision on a matter           with which they have no right to deal", "impose an           unwarranted condition"  or "addressing  themselves           to a  wrong question." The majority opinion in the           case leaves  a Court or Tribunal with virtually no           margin of  legal error. Whether there is excess or           jurisdiction or  merely error  within jurisdiction           can  be   determined  only   by   construing   the           empowering  statute,   which  will   give   little           guidance. It  is really  a question  of  how  much           latitude the  Court is  prepared to  allow. In the           end it  can only  be a  value judgment (see R.W.R.           Wade, "Constitutional  and Administrative  Aspects           of the  Anisintic case", Law Quarterly Review, Vo.           85, 1969  p. 198). Why is it that a wrong decision           on a  question of  limitation or  res judicata was           treated as a jurisdictional error and liable to be           interfered with in revision? It is a bit difficult

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         to understand  how  an  erroneous  decision  on  a           question of  limitation or res judicata could oust           the jurisdiction  of the  Court in  the  primitive           sense of  the term  and render  the decision  or a           decree embodying  the decision a nullity liable to           collateral attack. The reason can only be that the           error of law was considered as vital by the Court.           And  there   is  no  yardstick  to  determine  the           magnitude of  the error  other than the opinion of           this Court." He also referred to Badri Prasad v. Nagarmal, [1959] 1 Supp. S.C.R. 769  which  followed  the  clear  law  laid  down  in Surajmul Nagarmul  v. Trilon Insurance Co. Ltd., [1924] L.R. 52 I.A.  126, Balai Chandra Hazra v. Shewdhari Jadav, [1978] 3 S.C.R.  147 which  followed Ledgard v. Bull, (L.R. 13 I.A. 134; Meenakshi Naidu v. Subramaniya Sastri, L.R. 14 I.A. 140 and Sukhrani  v. Hari  Shankar, [1979] 3 S.C.R 671. Sri Rao, citing a  reference from  Halsbury’s Laws  of  England  (4th Edition) Vol.  X, para  713, pages 321-2, contended that the High Court’s  jurisdiction clearly stood excluded by s. 7(1) of the  1952 Act  and, hence,  the direction  of the Supreme Court was also one without jurisdiction. 158      44. In  dealing with  this  contention,  one  important aspect of  the concept  of jurisdiction  has to  be borne in mind. As  pointed out  by  Mathew  J.  in  Kapur  v.  Sethi, (supra), the  word "jurisdiction  is a  verbal coat  of many colours.". It  is used  in a  wide  and  broad  sense  while dealing with  administrative or quasi-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. This  distinction  is  well brought out  in the  speeches of  Lord Diplock, Lord Edmund- Devier and  Lord Scarman  in Re.  Racal Communications Ltd., [1980] 2  A.E.R. 634.  In the interests of brevity, I resist the temptation to quote extracts from the speeches here.      45. 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 now before us, that the direction in the order dated  16.2.1984 cannot  be justified  by reference to Article 142  of the  Constitution or  S. 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 not 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.      46. Shri  P.P. Rao then placed considerable reliance on the  observations   of  the   Privy  Council  in  Isaacs  v. Robertson, [1984]  3 A.E.R.140  an appeal from a decision of

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the Court  of Appeal  of St.  Vincent  and  the  Grenadines. Briefly the  facts  were  that  Robertson  had  obtained  an interim  injunction   against  Isaacs   and  two  others  on 31.5.1979 which  the latter refused to obey. The respondents motion for  committal of  the  appellant  for  contempt  was dismissed by  the High  Court of Saint Vincent. The Court of Appeal allowed the respondents 159 application; the appellants were found to be in contempt and also asked to pay respondents costs. However, no penalty was inflicted because  the appellant would have been entitled to succeed on  an application for setting aside the injunction, has he  filed one.  The main  attack by the appellant on the Court of Appeal’s judgment was based on the contention that, as a  consequence of  the operation  of certain rules of the Supreme Court  of St.  Vincent, the interlocutory injunction granted by  the High Court was a nullity: so disobedience to it could  not constitute  a contempt  of court. Lord Diplock observed:           Glosgow J.  accepted this contention, the Court of           Appeal  rejected  it,  in  their  Lordships’  view           correctly,  on  the  short  and  well  established           ground that  an order made by a court of unlimited           jurisdiction, such  as the  High  Court  of  Saint           Vincent must  be obeyed  unless and  until it  has           been set  aside by the court. For this proposition           Robotham AJA  cited the passage in the judgment of           Romer L.J.  in Hadkinson  v. Hadkinson,  [1952]  2           All. E.R. 567 at 569, (1952) P. 285 at 288.           It is  the plain  and  unqualified  obligation  of           every person  against, or  in respect  of whom  an           order is made by a Court of competent jurisdiction           to  obey   it  unless  and  until  that  order  is           discharged.  The  uncompromising  nature  of  this           obligation is  shown by  the fact  that it extends           even to  cases where  the person  affected  by  an           order believes  it to  be irregular  or even void.           Lord Cotteniiam,  Leven to  cases where the person           affected by  an order  believes it to be irregular           or even  void. Lord Cotteniiam, L.C. said in Chuck           v. Cremer,  [1946] 1 Coop Temp Cott 338 at 342, 47           E.R.884 at  855: "A  party, who knows of an order,           whether  null  or  valid,  regular  or  irregular,           cannot be  permitted to  disobey it .. It would be           most dangerous  to hold that the suitors, or their           solicitors,  could  themselves  judge  whether  an           order was  null or valid-whether it was regular or           irregular. That  they should come to the court and           not take  upon  themselves  to  determine  such  a           question. That the course of a party knowing of an           order, which  was null or irregular, and who might           be affected  by it,  was plain. He should apply to           the Court  that it might be discharged. As long as           it existed  it must not be obeyed." Such being the           nature of  this obligation, two consequences will,           in general,  follow from  its breach. The first is           that anyone who dis- 160           obeys an order of the court.....is in contempt and           may be  published by  committal or  attachment  or           otherwise.           It is in their Lordships view, says all that needs           to be  said  on  this  topic.  It  is  not  itself           sufficient reason for dismissing this appeal.  Having said this, the learned Law Lord proceeded to say:

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         "The cases  that are referred to in these dicta do           not support  the proposition  that  there  is  any           category  of   orders  of  a  court  of  unlimited           jurisdiction of this kind, what they do support is           the quite  different proposition  that there  is a           category of  orders of such a court which a person           affected by the order is entitled to apply to have           set aside  ex debito  justitiae in the exercise of           the inherent jurisdiction of the court without his           needing to  have recourse  to the rules that deals           expressly with proceedings to set aside orders for           irregularity and give to the Judge a discretion as           to the  order he will make. The judges in the case           that have  drawn the  distinction between  the two           types of  orders have  cautiously  refrained  from           seeking to  lay down a comprehensive definition of           defects that  bring an  order in the category that           attracts ex  debito justitiae the right to have it           set  aside  save  that  specifically  it  includes           orders that  have been obtained in breach of rules           of natural justice. The contrasting legal concepts           of voidness  and  voidability  form  part  of  the           English law  of contract. They are inapplicable to           orders made  by a  court of unlimited jurisdiction           in the  course of  contentions litigation. Such an           order is  either irregular  or regular.  If it  is           irregular it  can be  set aside  by the court that           made it  on application  to that  court, if  it is           regular it  can only  be set aside by an appellate           court on appeal if there is one to which an appeal           lies." Sri Rao  strongly relied  on this passage and, modifying his earlier, somewhat  extreme, contention  that  the  direction given on  16.2.1984 being a nullity and without jurisdiction could be ignored by all concerned-even by the trial judge-he contended, on  the strength  of these  observations, that he was at  least entitled  ex debito  justitiae to come to this Court and request the court, in the interests of justice, to set aside  the earlier  order "without  his needing  to have recourse to  the rules  that deal expressly with proceedings to set aside orders for irre 161 gularity", if  only on  the ground  that the  order had been made  in  breach  of  the  principles  of  natural  justice. Violation  of   the  principles   of  natural   justice,  he contended, renders  the  direction  a  nullity  without  any further proof  of prejudice (see Kapur v. Jagmohan, [1981] 1 S.C.R. 746 at 766) .      47. Learned  counsel contended,  in this  context, that the fact  the  direction  had  been  given  in  the  earlier proceedings in  this very  case need not stand in the way of our giving  relief, if  we are  really  satisfied  that  the direction had  been issued  per incuriam,  without complying with the  principles of  natural justice  and  purported  to confer a  jurisdiction on  the High  Court which  it did not possess. In  this context  he relied  on  certain  decisions holding  that   an  erroneous   decision  on   a  point   of jurisdiction will  not constitute  res judicata.  In Mathura Prasad v.  Dossibai,    [1970]  3  S.C.R.  830,  this  Court observed:           "A question  relating to  the  jurisdiction  of  a           Court  cannot  be  deemed  to  have  been  finally           determined by  an erroneous decision of the Court.           If by  an erroneous interpretation of the statute,           the Court  holds that  it has no jurisdiction, the

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         question would  not, in  our judgment,  operate as           res judicata. Similarly, by an erroneous decision,           if the  Court assumes  jurisdiction which  it does           not possess under the statute, the question cannot           operate as  res judicata between the same parties,           whether the  cause of  action  in  the  subsequent           litigation is  the same  or otherwise.  It is true           that in determining the application of the rule of           res judicata  the Court  is not concerned with the           correctness or  otherwise of the earlier judgment.           The matter  in issue, if it is one purely of fact,           decided in  the earlier  proceeding by a competent           court must  in a subsequent litigation between the           same parties  be regarded  as finally  decided and           cannot be  re-opened. A  mixed question of law and           fact determined  in the earlier proceeding between           the same  parties may not, for the same reason, be           questioned in  a subsequent proceeding between the           same parties.      0    xxxxx                                    xxxxx           Where, however  the question  is one purely of law           and it relates to the jurisdiction of the Court or           a decision  of  the  court  sanctioning  something           which is  illegal, by  resor to  the rule  of  res           judicata a party affected by the decision will not 162           be precluded from challenging the validity of that           order under  the rule  of res judicata, for a rule           of procedure cannot supersede the law of the land.           " Counsel also  relied on the decision of this Court in Ghulam Sarwar v.  Union of  India, [1956] 2 S.C.C.271, where it was held that the principle of constructive res judicata was not applicable to habeas corpus proceedings. He also referred to the observations  of D.A.  Desai J. in Soni Vrijlal Jethalal v. Soni  Jadavji Govindji,  AIR 1972 Guj. 148 that no act of the court  or irregularity  can come  in the  way of justice being done  and one of the highest and the first duty of all courts is  to take  care that  the act  of the court does no injury to  the suitors.  He also made reference to the maxim that an  act of,  or mistake  on the  part, of a court shall cause prejudice  to no  one, vide:  Jang Singh  v. Brij Lal, [1964] 2  S.C.R. 145  at p.  159. Relying on these decisions and passages  from various treatises which I do not consider it necessary  to  set  out  in  in  extenso  here,  Sri  Rao contended that  this court  should not consider itself bound by  the   earlier  order   of  the  Bench  or  any  kind  of technicality where  the liberty  of an  individual  and  the rights guaranteed  to him  under Articles  14 and  21 of the Constitution are  in issue.  It is urged that, if this Court agrees with  him that  the direction  dated 16.2.1984 was an illegal one,  this Court  should not hesitate nay, it should hasten-to set  aside the said order and repair the injustice done to  the appellant  without further  delay. On the other hand, Sri  Jethmalani  vehemently  urged  that  the  present attempt to  have the  entire matter  reopened constitutes  a gross abuse of the process of court, that it is well settled that the  principle of  res judicata  is also  available  in criminal matters  (vide Bhagat Ram v. State, [1972] 2 S.C.C. 466 and State v. Tara Chand, [1973] S.C.c. Crl. 774) that in the United States the principle of res judicata governs even jurisdictional issues and that "the slightest hospitality to the accused’s  pleas will  lead to  a grave  miscarriage  of justice and set up a precedent perilous to public interest.      48. I  have given careful thought to these contentions.

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The appellant’s  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 163 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 do 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 facie 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  of 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 comers 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  are not  available should  not, in my view, render this Court powerless to give relief. As pointed out by  Lord Diplock in Isaac v. Robertson, [ 19841 3 A.E.R. 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.      49. 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 chaotic consequences. Nothing should be done to create an impression that this Court can be easily persuaded to alter  its views 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 164 inclined to  go back  on it and render it ineffective in its application and  binding nature even in regard to subsequent

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proceedings in  the same  case. In  Bengal Immunity  Company Limited v. The State of Bihar and Ors., [1955] 2 S.C.R. 603, this Court held that it had the power, in appropriate cases, to  reconsider  a  previous  decision  given  by  it.  While concurring in this conclusion, Venkatarama Ayyar, J. sounded a note  of warning  of consequences which is more germane in the present context:           "The question  then arises as to the principles on           which and  the  limits  within  which  this  power           should be  exercised. It is of course not possible           to enumerate  them exhaustively,  nor is  it  even           desirable that  they should  not crystallised into           rigid and  inflexible  rules.  But  one  principle           stands out prominently above the rest, and that is           that in  general, there  should be finality in the           decisions of  the highest  courts in the land, and           that is  for the  benefit and  protection  of  the           public. In  this connection,  it is  necessary  to           bear in  mind that next to legislative enactments,           it is  decisions of  Courts  that  form  the  most           important source  of law.  It is  on the  faith of           decisions that rights are acquired and obligations           incurred, and  States  and  subjects  alike  shape           their course of action. It must greatly impair the           value of  the decisions  of  this  Court,  if  the           notion came  to  be  entertained  that  there  was           nothing certain or final about them, which must be           the consequence if the points decided therein came           to be  re-considered on the merits every time they           were raised.  It should  be noted  that though the           Privy Council  has repeatedly declared that it has           the power to reconsider its decisions, in fact, no           instance has  been quoted in which it did actually           reverse   its    previous   decision   except   in           ecclesiastical  cases.  If  that  is  the  correct           position, then  the power  to  reconsider  is  one           which should  be exercised very sparingly and only           in  exceptiona1  circumstances,  such  as  when  a           material provision  of law had been overlooked, or           where  a   fundamental  assumption  on  which  the           decision is  base(1 turns  out to  be mistaken. In           the present  case, it  is not  suggested  that  in           deciding the  question of  law as  they did in The           State of Bombay v. The United Motors (India) Ltd.,           [1953] S.C.R.  l069 the learned Judges ignored any           material provisions  of law,  or  were  under  any           misapprehension as  to a matter fundamental to the           decision. The  arguments for  the appellant before           us were in fact only a repetition of the 165           very  contentions  which  were  urged  before  the           learned Judges and negatived by them. The question           then resolves itself to this. Can we differ from a           previous decision  of this  Court, because  a view           contrary to  the one  taken therein  appears to be           preferable? I  would unhesitatingly  answer it  in           the negative,  not  because  the  view  previously           taken must  necessarily be  infallible but because           it is  important in  public interest  that the law           declared should  be certain  and final rather than           that it  should be  declared in  one sense. Or the           other. That,  I conceive,  in  the  reason  behind           article 141.  There are  questions of law on which           it is not possible to avoid difference of opinion,           and the present case is itself a signal example of

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         it.  The   object  of  article  141  is  that  the           decisions of  this Court on these questions should           settle the  controversy, and  that they  should be           followed as law by all the Courts, and if they are           allowed to  be reopened  because a  different view           appears to  be  the  better  one,  then  the  very           purpose with  which article  141 has  been enacted           will be  defeated, and the prospect will have been           opened of  litigants subjecting our decisions to a           continuous process  of  attack  before  successive           Benches in  the hope  that  with  changes  in  the           personnel of  the Court which time must inevitably           bring, a  different view  might find acceptance. I           can imagine  nothing more damaging to the prestige           of  this   Court  or   to   the   value   of   its           pronouncements.  In   James  v.  Commonwealth,  18           C.L.R.54, it  was observed that a question settled           by a previous decision should not be allowed to be           reopened "upon  a mere suggestion that some or all           of the  Members of the later Court might arrive at           a different  conclusion  if  the  matter  was  res           integra. Otherwise, there would be grave danger of           want of  continuity in  the interpretation  of the           law" (per  Griffiths, C.J.  at p.  58). It  is for           this reason  that article 141 invests decisions of           this Court  with special authority, but the weight           of that  authority can  only be  what we ourselves           give to it." Even in  the context  of a  power  of  review,  properly  so called, Ven-  kataramiah, J.  had this  to say in Sheonandan Paswan v. State of Bihar & Ors., [1987] 1 S.C.C. 288:           "The review petition was admitted after the appeal           had been  dismissed only  because Nandini Satpathy           cases, (1987  1 S.C.C.269 and 1987 lS.C.C.279) had           been subsequently 166           referred to  a larger  bench to review the earlier           decisions. When  the earlier decisions are allowed           to remain  intact, there  is no  justification  to           reverse the  decision of  this Court  by which the           appeal had  already been  dismissed. There  is  no           warrant for  this extraordinary  procedure  to  be           adopted in  this case. The reversal of the earlier           judgment of  this Court by this process strikes at           the finally  of judgments  of this Court and would           amount to  the abuse of the power of review vested           in this Court, particularly in a criminal case. It           may be  noted that  no other  court in the country           has been  given the  power of  review in  criminal           cases. I am of the view that the majority judgment           of Baharul Islam and R.B. Misra, JJ. should remain           undisturbed. This case cannot be converted into an           apeal against the earlier decision of this Court " The attempt  of the  appellant here is more far-reaching. He seeks not  the mere  upsetting of  a precedent of this Court nor the  upsetting of  a decision  of a  High Court  or this Court in accordance with the normal procedure. What he wants from us  is a  declaration that  an order  passed by  a five judge Bench  is wrong  and that  it should,  in  effect,  be annulled by  us. This should not be done, in my view, unless the  earlier   order  is   vitiated  by  a  patent  lack  of jurisdiction or  has resulted  in  grave  injustice  or  has clearly abridged  the fundamental  rights of  the appellant. The question  that arises is whether the present case can be brought within  the narrow  range of  exceptions which calls

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for such  interference. I  am inclined to think that it does not.      50. I  have indicated  earlier,  while  discussing  the contentions urged  by Shri  P.P. Rao  that some of them were plausible and,  that,  if  I  were  asked  to  answer  these questions posed by counsel for the first time, I might agree with his  answers. But  I have  also indicated  that, in  my view, they  do not  constitute the only way of answering the questions  posed  by  the  learned  counsel.  Thus,  to  the question: did  this Court have the jurisdiction to issue the impugned direction, a plausible answer could well be that it did, if  one remembers  that one  of the  transferred  cases before this  Court was  the  revision  petition  before  the Bombay High  Court in  which a  transfer of  the case to the High Court  has been  asked for  and if  one  gives  a  wide interpretation to  the provisions  of  Article  142  of  the Constitution. 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 s.  7(1) of the 1952 Act should not be so construed 167 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 16.2.1984 contains no reference to, or discussion of, S. 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   complainant’s  special  leave  petition, [1984] 2 S.C.R. 914 at page 943-4.I have already pointed out that, if  the transfer  is referable  to s.  407 of the 1973 Cr.P.C., it  cannot be  impugned as offending Article 14 and 21 of  the Constitution.  The mere  fact that the judges did not discuss  at length the facts or the provisions of s. 407 Cr.P.C. vis-a-vis  the 1952  Act or give a reasoned order as to why  they thought  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  grave injustice. 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 s. 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 be considered outweighed 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 s.  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 a 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 behove the prestige and glory of this Court as envisaged under the  Constitution if  earlier decisions 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

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two opinion  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.      51. The  only question  that has  been bothering  me is that the  appellant had  been given no chance of being heard before the 168 impugned direction  was given and one cannot say whether the Bench A would have acted in the same way even if he had been given such opportunity. However, in the circumstances of the case, I  have come  to the conclusion that this is not a fit case to  interfere with the earlier order on that ground. It is true  that the  audi  altarem  partem  rule  is  a  basic requirement of  the rule of law. But judicial decisions also show that  the degree  of compliance  with this rule and the extent of  consequences flowing  from failure  to do so will vary from  case to  case. Krishna  Iyer, J. Observed thus in Nawabkhan Abbaskhan v. State, [1974]3 S.C.R. 4/7 thus:           "an order  which infringed  a fundamental  freedom           passed in  violation of  the audi  alteram  partem           rule  was   a  nullity.   A  determination  is  no           determination   if   it   is   contrary   to   the           constitutional mandate of Art. 19. On this footing           the externment  order was  of no  effect  and  its           violation was  not offence. Any order made without           hearing the party affected is void and ineffectual           to bind  parties from the beginng if the injury is           to a  constitutionally guaranteed  right.  May  be           that in  ordinary legislation  or at  common law a           Tribunal having  jurisdiction and  failing to-hear           the parties  may commit  an illegality  which  may           render the  proceedings  voidable  when  a  direct           attack was made thereon by way of appeal, revision           or  review  but  nullity  is  the  consequence  of           unconstitutionality  and   so  the   order  of  an           administrative authority  charged with the duty of           complying with  natural justice in the exercise of           power before  restricting the fundamental right of           a citizen  is void  ab  initio  and  of  no  legal           efficacy.  The   duty   to   hear   menacles   his           jurisdictional exercise  and any  act is,  in  its           inception,   void   except   when   performed   in           accordance with the conditions laid down in regard           to hearing. " (emphasis added) 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  know, on  16.2.84, 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 169 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

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procedure, a  lot of  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 Departrnent ex parte Mughal, l 19731 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  de   novo  before   a  Special  Judge.  I  would, therefore, dismiss the appeal.                        O  R  D  E  R      In  view  of  the  majority  judgments  the  appeal  is allowed; all  proceedings in  this matter  subsequent to the directions of this Court on 16th February, 1984 as indicated in the  judgment are  set aside and quashed. The trial shall proceed in  accordance with  law, that  is to say, under the Act of 1952. N.P.V. 170