• i • A.R. ANTULAY v. R.S. NAYAK & ANR. APRIL 29, 1988 [SABYASACHI MUKHARJI, RANGANATH MISRA, G.L. OZA, B.C .. RAY, S. NATARAJAN, M.N. VENKATACHALIAH AND S. RANGANATHAN, JJ.] B 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 h.eld by Special Judge only- C 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, 137, 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- 0ffences under Act to be tried only by Special Judge-Order of Supreme Court transferring and direding trial by High Court Judge- Whether legally authorised-Non-substante clause ins. 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 D E F G High Court. 1-1 1 A B c 2 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.
Practice and Procedure: Judgment of Supreme Coun-Direc- tions 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 pre- judice and do injury. Criminal Trial-Criminal Procedure Code, 1973-Sec. 223- Whether an accused can demand as of a right trial with co-accused.
Interpretation 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-Applicabi- lity of. The appellant was the Chief Minister of Maharashtra between D ·June 9, 1980 and January 12, 1982, when he resigned that office in deference to the judgment of High Court in a writ petition tiled against him, but continued as an MLA.
On August 9, 1982, respondent No. t, a member of a political party tiled a complaint before a Special Judge against the appellant and E 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 Spe- cial Judge over-ruled the objection of the appellant to take cognizance • F 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 G Court, which dismissed it subsequently. The appellant's Special Leave Petition against this was dismissed by the Supreme Court which held that the complaint tiled by respondent No. 1 was clearly maintainable and cognizance was properly taken of it. During the pendency of the revision application in the High H Court, the State Government notified the SpeCial Judge to try the off- '' . ;,,;.\ f;i A.R.
ANTULAY ,._ R.S. NAYAK 3 :Ci, A ences specified nnder s. 6(1) of the Act and appointed another Special Jndge, who discharged the appellant, holding that a member of the Legislative Assembly was a public servant and there was no valid sane- tion for prosecuting the appellant. Against this order of discharge, respondent No. 1 flied a Criminal Revision Application in the High Court, which was subsequently withdrawn to this Court.
B 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 -,1. a public servant, and set aside the order of the Special Judge. The Court observed that though nearly 2'/z years had rolled by since pro- c f secution 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 primari- ly 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 wit;,. D drew this special case and another one filed against the appellant by ' . another person and transferred them to the High Court, with the re- quest to the Chief Justice to assign these two cases to a sitting Jtidge of the High Court, who should proceed to expeditiously dispose of the cases, preferably by holding trial from day to day.
E 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 i,I Judges of that Court. The appellant appeared before him and raised an objection that the case mold be tried only by a Special Judge appointed by the Government under the !952 Act. The Judge rejected this and " • other objections holding that he was bound by the order of the Supreme F Court.
Special .Leave Petitions as well as a writ petition filed by the appelhnt against the aforesaid decision were di•missed 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 G binding on him. It also observed that the writ petition challenging the validity of the order and jndgment of this Court as nullity or otherwise could not be entertained, and that the dismissal of the writ petition ' II would not prejudice the petitioner's right to approach this Court, with ... ,. an appropriate review petition or any other application, '1-'hich he IT'"1•i "" " be entitled to, in law.
H I 4 SUPREME COURT REPORTS [1988] Supp. 1 S.C:.R. f.· \ A Thereafter, the cases were transferred to another Special Judge, who framed 21 charges and declined to frame 22 other charges prv- posed by respondent No.
1. This Court allowed respondent No. I'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.
B 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 c 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 Peti- lion against the decision of the Judge, holding that none of the '79 charges framed agaist the accused required sanction under s. 197(1) of D 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 E other Special Leave Petition and the writ petition, and directed these to be tagged on to the appeal. An application filed by respondent No. I for revocation of the Special Leave was dismissed and the appeal was referred to a Bench of seven Judges. The other Special Leave Petition and the writ petition F were delinked, to be heard after the disposal of the appeal. In the appeal, two questions arose, namely, (1) whether the direC·· lions given by this Court on 16th February, 1984, withdrawing th<' 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 G 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 off- ences, 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 directions were ~ at all valid or legal 311d (2) if.such directions were not at all valid or legal H in view of the Court's order of April 17, 1984, whether the present '~ A.R.
ANTULAY v. R.S. NAYAK 5 appeal was sustainable or the grounds therein justiciable in these pro- ceedings. 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 pro- • ceedings 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: .A B c I. Section 7(1) of the ·.Criminal Law Amendment Act, 1952 creates a condition which is sine qua non for the trial of offences under D 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 ofCorruptionAct,1947. [44B-C,49H,A] E 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 F 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, h955] I SCR 117 at 121 and M.L. Sethi v. R.P. Kapur, 19731SCR697 relied on. G 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. [SOE] H A B c D 6 SUPREME COURT REPORTS I1988] Supp. 1 S.C.R. M.L. Sethi v. R.P. Kapur, [1973[ sen 697 and Raia Soap Factory v. S.P. Shantaraj, 1965 2 sen 800 referred to. Halsbury's Laws of England, 4th Edn.
Vol. IO page at para 720 and Ammon Rubinstein's Jurisdiction and l/legality, [1965] Edn. pp. 16-50 referred to. 2.2 Want of jurisdiction can be established solely by supe1rior It\ court and in practice, no decision can be impeached collaterally hy any inferior court, but the superior court can always correct its own error brought to its 'notice either hy way of petition or ex debito justitiae. [SOG] fiubinstein 's jurisiliction and //legality ( 1965 Edn,) referred to. 2.3 The distinction between an error wmch entails absence of jurisdiction and an error made within the jurisdiction is so tine that it is rapidly being eroded. [69H, 70A] Anismatic Ltd. v.
Foreign Compensation Commissioner, [1969'] I All E.R. 208 at 244 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 E order. [69G) 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) F The singling out of the appellant for a speedier trial by the Hii~h G H 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. [SID-El 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. [5IE-F) !;: Soni Vrajlal Jethaial v.
Soni Jadavji and Govindji & Ors., AIR 1972 Gujarat 148 approved. A.R. ANTULA Y v. R.S. NAY AK 7 In the earlier judgment, the points for setting aside the decision A 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 qu.,,,1ion is taken it cannot operate as res judicata. [62G-H] Shivshankar Prasad Shah and others v.
Baikunth Nath Singh and others, [1969] l S.C.C. 718; Bikan Mahuri and others v. Mst. Bibi Walian and others, A.J.R. 1939 Patna 633; S.L. Kapoor v. Jagmohan and others, [1981] l 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 at 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] B c 3.2 Article 134(l)(b) of the Constitution does not recognise in.
D 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(l)(b) of the Constitution. [67B-C] 3.3 Where by a specific clause of a specific statute the power is E given for trial by the Special Judge only and transfer can be from one such Judge to another Special Judge, there i• 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.
JI is not a case of exclusion of the superior Courts. [67C] · Jn 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 con- tained in s. 407 of Criminal Procedure Code. Under s. 407 of the Crimi- F nal Procedure Code read with the Criminal Law Amendment Act, the G High Court could not transfer to itself proceedings under ss. 6 and 7 of the said Act.
This Court, by transferring the proceedings to itself. could not have acquired larger jurisdiction. The fact that the objection was ,. not raised before this Court gave directions on 16tl) February, 1984 cannot amountto any waiver. [61F-G] ' A B c 8 SUPREME COURT REPORTS [1988) Supp. 1 S.C.R. Ledgard v. Bull, 131 A 134, Meenakshi Naidoo v. Subramaniya Sastri, 141A160 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 I In the instant case, the presumption cannot be taken, firstly, be· cause 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 atten· tion 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 snbject is involved. [608, 61A-B) Kuchenmeister v. Home Office, [1958) I Q.B. 496; Attorney Gen- D era! v. Herman James Sillam, [1864) 10 H.L.C. 703 and Issacs v. Robertson, [1984) 3 A.LR. 140 referred to.
Jurisdiction and Illegality by Amnon Rubinstein, I1965) Edn. referred to. E 4.1 Per incnriam are those decisions given in ignorance or forget· F fulness of some inconsistent statutory provision or some authority bind· ing on the Court concerned so that in snch 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. lf a decision is given per in· curiam, the Court can ignore it. [52A·B, 53G] Morelle v.
Wakeling, [1955) I ALL ER 708; State of Orissa v. The Tit4ghur Paper Mills Co. Ltd., [1985) 3 SCR 26 and Bengal Immunity ·Co. Ltd. v. State of Bihar [1955) 2 SCR603, 623 referred to. In the instant case, when this Court gave directions on 16th G 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 prece· dent. [51G-HJ 4.2 A Full Bench or a Constitution Bench decision was binding ou H the Constitution Bench because it was a Bench of seven Judges.
There is A.R. ANTULAY v. R.S. NAYAK 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, 11952] SCR 284; Nat- tulal v. Radhe Lal, 11975] 1SCR127; Union of India and Anr. v. K.S. Subramaniam, [1977] 1 SCR 87 at p. 92; State of U.P. v. Ram Chandra Trivedi, 11977) 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 Edu. pages 128 and 130; Young v. Bristol Aeroplane Co. Ltd. 11944) 2 AER 293 at 300; Moore v. Hewitt 1947 2 AER 270 at 272A; Penny v. Nicholas, 1950 2 AER 92A and Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, 11985) 2 SCR 8 referred to. A B c 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 D was pending before this Court for such directions. (590-E] The order of this Court was clearly per inctiriam. 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 he over-ridden in the manner E 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 he evident from an analysis of different provisions of the Code as well as the 1952 Act. [SOC-DJ Therefore, in view of the clear provisions of s. 7(2) of the Act of F 1952 and Articles· 14 and 21 of the Constitution these directions were legally wro.;g. l52C] 4.3 Though the previous statute is referred to In the other judg- ment delivered on the same date, in connection with other contentions. s. 7(1) was not referred to in respect of the impugned directions.
Hence G these observations were indubitably per incuriam.l66Al · . Miliangos v. George Frank (Textiles) Ltd; 11975] 3 All E.R. 801 j at 821 referred to. _5 .. This Court is not powerless to correct its error which has the H. 10 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R. effect of depriving a citizen of his fundQmental rights and more so, the ;\ right to life and liberty. It can do so in exercise of its inherent jurisdic- tion in any proceeding pending before it without insisting on the , formalities ofa review application. [54A-B] B c D E Powers of review can be exercised in a petition filed under Article 136 or Article 32 or under any other provision or the Constitution if the Coort is $3tlsfied that its directions have resulted in the deprivation or the funda- mental rights of a citizen or any legal right orthe 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. 1SCR885; 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; Kaila8h Nath v. State of U.P. AIR 1957 (SC) 790; P.S.R. Sadhananatham v. Arunachalam, 11980] 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 arid 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 Vaishya ,. ( and another, [1966) 3S.C.R. 242; Jang Singh v. Brijlal [1964) 2 S.C.R. 1 F 145; Bhajahari Mondalv. The State of West Bengal, [1959) S.C.R. 127(i at 1284-1286 and Asgarali N. Singaporawal/e v. The State of Bombay 1957 S.C.R. 678 at692 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 G in a criminal trial in accordance with law.
Therefore, when the atten- tion of the Court is drawn, the Court has always the power and the obligation to correct it ex debito justitiae and treat the second applica- tion by its inherent power, as a power of review to correct the original mistake. [56C-D) t, H The directions have been issued without observing the principle of audi alteram par/em, [530] ."'4 A.R. ANTIJLAY v. R.S. NAYAK 11 This Court is not debarred from re-opening this question and A • giving proper directions and correcting the error in the present ap- peal. [53C] '"I The appellant should not suffer on account of the direction of this Court based upon an error leading to conferment of jurisdiction. [53B] B 7.
The principle of finality on which Article 145(e) proceeds ap- plies to both judgments and orders made by the Supreme Court. But directions given per incuriam in violation of certain constitutional limi- tations and in derogation of tbe principles of natural justice can always be remedied by the court ex debite justitiae. l68F-G] In the instant case, this Court is correcting an irregularity commit- c led 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] D Issacs v.
Robertson, [1984] 3 A.E.R. 140 and Re Recal Communi- cations 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 E 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 F 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 G section. iv) The right to move the Supreme Court under Article 136 there- "' after by way of a second appeal, if necessary. ., The right of the appellant under Article 14 regarding equality H 12 SUPREME COURT REPORTS [1988] Supp.
I S.C.R. A before the law and equal protection of law bas been violated. The appel lant bas alSI) a right not to be singled out for special treatment by a Special Court created for him alone. This right is implicit in the dght to equality. [60A-C, 62A-B] State of West Bengal v. Anwar Ali Sarkar, [1952] SCR 284 relied B on. The appellant has a fUrther right under Article 21 of the Cons titution-a right to trial by a Special Judge under 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 C passed behind his back by a Court in violation of the basic principles of natural justice. Directions having been given in this case without hear ing the appellant, though the order was passed in the presence of the counsel for the appellant, these are bad. [62B-D] D 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. E 9 .2 There was prejudice to the accused in being singled out as a special class of accused for a special dispensation withoot any room for any appeal as of right and without power of revision to the High Court. [67GI ' Romesh Chandra Arora v. The State, [1960] I SCR 924 at 927 .� F 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 G rule oflaw. (680-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 H on. ' ..
A.R. ANTULA Y v. R.S. NAY AK -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 conf'med 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 Born. 42, Sunil Chandra Roy & Anr. v.
The State AIR 1954 Cal. 305; Sasadhar Acharjya & Anr. v. Sir Charles Tegart & Ors., [1935] Cal. Weekly Notes 1089; Peoples Insurance Co. Ltd. v. Sardul Singh Caveeshgar & Ors., AIR 1961 Punj. 87 and P.P. Front, New Delhi v. K.K. Bir/a, [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] A B c 10.
Words should normally be given their ordinary meaning D · 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 CI. & 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 E ·~ Judges under the Code has stood repealed or not.
The concept of repeal may have no application in this case. [66B] F 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 law and not in derogation ofit. [71B] This Court, in its anxiety to facilitate the parties to have a speedy trial, gave direction on 16th February, 1984 without conscious awar_e.- ness of the exclusive jurisdiction of the Special Courts under the 1952 ~ Act and that being the only procedure established ·by law; there ·can' G 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 H guided. [71B-C] A B c D 14 SUPREME COURT REPORTS [1988) Supp. 1 S.C.R. By reason of giving the impugned directions, this Court had also unintentionally caused the appellant the denial of rights undler Article 14 of the Constitution by denying him the equal protectfon 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, evon 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 blotonjustice. [710) 12.1 The basic fundamentals of the administration of justice 31re simple.
No man should suffer because of the mistake of Court. No m21n 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] E 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 must be upheld as a matter of public policy. Allegations of legal infrac- tions and criminal infractions must be investigated in accordance with F law and procedure established under the Constitution. [73B] G 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 confidenc" in public administration should not be eroded any further. One wrong cannot be remedied by another wrong. [73B I 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 I The impugned directions were in deprival of the Constitutional H . rights and contrary to the expreSli provisions of the Criminal Law -.
A.R. ANTULAY v. R.S. NAYAK 15 Amendment Act, 1952, in violation of the principles of natural justice, A and without precedent in the background of the Act of 1952. The direc- ~~ tions defu1itely 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 B 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 <ii by the Constitutfon. [70A-Bl. Ittavira Mathai v. Varkey Varkey and others, [1964) 1 SCR 495 c referred to. Bhatia Cooperative Housing Society Ltd. v. D.C. Patel, [1953] SCR 18S at 190 distinguished. Since this. Court infringed the Constitutional safeguards g~anted D '~ 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 quasbed·and the trial Eshould proceed in accordance with law, that is to say, under the Act of 1952. [70C, 730-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 Re- \ hman Antulay v. Union of India and others etc. [1984) 3 SCR 4112 at F 483; Kai/ash 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 G 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 Crim- inal Procedure to try those offences.
As long as s. 7 of the Amending Act ,J 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) H 16 SUPREME COURT REPORTS I1988] Supp. 1 S.C.R. 1"' (2 A State of West Bengalv. Anwar Ali Sarkar, 1952 SCR 284 referred to.
15. The power to transfer a case conferred by the Constitution1 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 lthe B principle that the Special Judge was a subordinate court for transfor- ring 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 trans- fer, 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 tri•tl. c 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 SCR 800 referred to. D 16. l 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. Jurisdictioni E is thus the authority or power of the court to deal with a matter ancl. 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 fi>rum of appeal because if the trial was handled by a Special.Judge, the first appeal would lie to the High I F 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 hy way of special leave. [83H, 84A-B] 18. The transfer was a suo motu direction of the court.
Since this G 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 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 i.s, apj,"Opriate to presume that this Court never intends to act contrary to law. [82E-F] • 'I A.R. ANTULAY v. R.S. NAYAK 17 19. One of the well-known principles of law is that decision made· A by a competent court should be taken as final subject to further pro- ceedings 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 be binding on this Court as B well and cannot be interfered with after attaining finality. [84C-D l 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 referted 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 proceed'· ings 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 c D , powers. A mistake of the Court can be corrected by the Court itself E without. any fetters. In the present situation, the Court's inherent pow- ers 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 ILR 35 All 331 and F Murtaza v. Yasin, AIR 191PC857 referred to. 20.4 The injustice done should be corrected by &pplying the principle actus curiae neminem gravabit, an act of the court shall pre- judice no one. [SSH] 20.S 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 .enh- ance both. [S9B] G 21. If a mistake is detected· and the apex Court is not able to·, H' A B c D E 18 SUPREME COURT REPORTS I1988] Supp. 1 S.C.R. correct it with a view to doing justice for fear of being misunderstooid, the cause of justice is hound to suffer and for the apex Court the apprehension would not he a valid consideration.
This Court, while administering justice, does not take into consideration as to who is before it, Every litigant is entitled to tbe 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 tbe 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 in the ordinary course of judicial func- tioning and if there be one, certainly the Bench before which it comes would appropriately deal with it. No strait jacket formula can he laid down for judicial functioning particularly for the apex Court. The ap- prehension that the decision to recall the earlier decision may be used as a precedent to challenge judicial orders of this Court is perhaps misp- laced 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 b" derived out of this decision, the Court which is asked to use this as run 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. l87E] «.
24. Benches of this Court are not subordinate to larger Benches r F thereof and certiorari is, therefore, not admissible for quashing of the orders made on the judicial side of the Court. [SSC] Naresh Chandra Mirajkar & Ors. v.
State of Maharashtra & Anr., I1966] 3 SCR 744 relied on. G Prem Chand Garg v. Excise Commissioner, U.P., A