TMI Blog2001 (7) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... pal, P.S. Sudheer, Surekha Raman, Raja Thakare, A. Mariarputham, P. Parameswaran and S.V. Deshpande for the Respondent. JUDGMENT Variava, J. - Leave granted. Heard parties. 2. These appeals are against orders dated 16-4-2001, and 19-4-2001, passed by the Bombay High Court. 3. Briefly stated, the facts leading to these appeals are as follows : Due to large scale diversion of public funds belonging to banks and financial institutions to the individual accounts of certain brokers, the Government first promulgated an Ordinance. Subsequently the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, was passed. (This Act will hereinafter be referred to as the Special Court Act ). Under this Special Court Act one Special Court came to be established. In the beginning there was only one judge. All civil and criminal matters, even if they arose from the same transaction were before the same judge. The same judge had, in fact, tried both civil and criminal matters even though they arose out of the same transaction or the same set of facts. It is only because the work load was found to be very heavy that the Special Court Act was amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch on 16-4-2001. By order dated 16-4-2001 ( i.e., one of the impugned orders), the Division Bench directed that a written application for transfer be moved before the Special Court, i.e., before the hon ble Judge, Mr. Kapadia, himself. With these directions Criminal Application No. 809 of 2001 was disposed of. 10. The appellants then filed, in the Special Court, miscellaneous Application No. 167 of 2001 praying that Justice Kapadia may recuse himself from the matter. By an order dated 19-4-2001, that application has been rejected. 11. On the same date, i.e., 19-4-2001, the parties moved for some clarification before the Division Bench and the Division Bench by its order dated 19-4-2001, has refused to issue any clarification. Hence, this special leave petition against the orders of the Bombay High Court dated 16-4-2001 and 19-4-2001. 12. In this appeal we have not permitted the parties to argue on the merits. We have confined the parties to the question whether the High Court would have power to transfer the case from one judge of the Special Court to another. 13. Mr. Chidambaram submits that the High Court has such a power under section 407 of the Criminal P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate court shall be stayed, on such terms as the High Court may think fit, to impose: Provided that such stay shall not affect the subordinate court s power of remand under section 309. (7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under sub-section (1) that a case be transferred from any court for trial before itself, it shall observe in such trial the same procedure which that court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under section 197." It is thus to be seen that the High Court could only exercise power under section 407 provided the Special Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instituted only in the Special Court and any prosecution in respect of such offence pending in any court shall stand transferred to the Special Court. 9. Procedure and powers of Special Court. (1) The Special Court shall, in the trial of such cases, follow the procedure prescribed by the court for the trial of warrant cases before a magistrate. (2) Save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of this Act apply to the proceedings before the Special Court and for the purposes of the said provisions of the Code. The Special Court shall be deemed to be a Court of Session and shall have all the powers of a Court of Session, and the person conducting a prosecution before the Special Court shall be deemed to be a public Prosecutor. (3) The Special Court may pass upon any person convicted by it any sentence authorised by law for the punishment of the offence of which such person is convicted. (4) While dealing with any other matter brought before it, the Special Court may adopt such procedure as it may deem fit consistent with the principles of natural justice." 16. Mr. Chidambaram, subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal to the provisions of the Special Court Act. Mr. Chidambaram points out that the Constitution Bench of this court, consisting of seven judges, had while considering the Bill, observed that unless there was a provision for transferring a case from one court to another, the Bill would be constitutionally invalid. He submitted that because of this opinion expressed by the Constitution Bench, the Attorney-General made a statement that the Government had agreed to incorporate a provision empowering the Supreme Court to transfer a case from one Special Court to another. Mr. Chidambaram submitted that pursuant to this section 10 was incorporated. Section 10 reads as follows : "10. Power of Supreme Court to transfer cases. (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 be transferred from one Special Court to another Special 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 Attorne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. It was held that the situation where the High Court had been divested of all other judicial functions apart from that of constitutional interpretation was to be avoided. 23. Mr. Chidambaram also relied upon the case of T. Sudhakar Prasad v. Government of Andhra Pradesh [2001] 1 SCC 516. In this case the Administrative Tribunal had passed an order punishing for contempt. The question was whether under articles 226 and 227 the High Court had jurisdiction over the Administrative Tribunal s functions under section 17 of the Administrative Tribunals Act. It may only be mentioned that section 17 of the Administrative Tribunals Act empowered the Administrative Tribunal to punish for contempt of itself and vested in it the same jurisdiction and powers as a High Court had. The question before this court was whether an order passed under section 17 of the Administrative Tribunals Act was subject to judicial scrutiny by the High Court under articles 226 and 227 of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 227 of the Constitution was applicable to the court of the Special Tribunal constituted under the Special Tribunals Regulation and the powers of superintendence conferred on the High Court were sufficiently wide to transfer cases from one Special Court to another. 28. On the other hand Mr. Malhotra pointed out that the Special Court is manned by sitting judges of the High Court. He pointed out that there is only one Special Court. He submitted that the sitting judges of the High Court, who man the Special Court, not only take up matters pertaining to the Special Court but also on occasions take up matters of the High Court. Mr. Malhotra also pointed out section 5A of the Special Court Act, which reads as follows : "5A. Distribution of cases amongst Judges of Special Court. Where the Special Court consists of two or more judges, the Chief Justice of the High Court within the local limits of whose jurisdiction the Special Court is situated may, from time to time, by general or special order, make provisions as to the distribution of cases amongst the judges and specify the matters which may be dealt with by each of such judges." Mr. Malhotra submitted that a conjoint re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt proceeded on the footing that the Special Courts were not subordinate to the High Court is very clear from the observations made by Justice Shinghal, J., who delivered a separate minority judgment. In this judgment after considering the various constitutional provisions he, inter alia, observed that the High Court had been vested with all the necessary jurisdiction and powers to stand out as the repository of all judicial authority within the State and that it was not contemplated by the Constitution that any civil or criminal court in the State should be outside its control. Justice Shinghal in his minority judgment then goes on to hold that clauses 5 and 7 of the Bill (by which Special Courts are created and sitting judges of the High Court are appointed) are unconstitutional. Thus the single judge is holding that there could be no court in the State over which the High Court had no control. Such a view could only be taken if the court was proceeding on the footing that the Special Courts were not subordinate to or under the control of the High Court. Of course this view is not accepted by the majority, who hold that the provisions are constitutionally valid. But in this beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinate to the High Court is also very clear from the case of T. Sudhakar Prasad ( supra ) referred to by Mr. Chidambaram. In this case this court has held as follows : "Subordination of Tribunals and courts functioning within the territorial jurisdiction of a High Court can be either judicial or administrative or both. The power of superintendence exercised by the High Court under article 227 of the Constitution is Judicial superintendence and not administrative superintendence , such as one which vests in the High Court under article 235 of the Constitution over subordinate courts. Vide paragraph 96 of L. Chandra Kumar v. Union of India [1997] 228 ITR 725 the Constitution Bench did not agree with the suggestion that the Tribunals be made subject to the supervisory jurisdiction of the High Courts within whose territorial jurisdiction they fall, as our constitutional scheme does not require that all adjudicatory bodies which fall within the territorial jurisdiction of any High Court should be subject to its supervisory jurisdiction . Obviously, the supervisory jurisdiction referred to by the Constitution Bench in paragraph 96 of the judgment is the supervision of the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or from one judge of the High Court to another judge of the High Court, Mr. Chidambaram fairly conceded that there was no such power and that the only approach would be either to make an application before the concerned judge to recuse himself or to administratively apply either to the Chief Justice of India. In the case of the Supreme Court) or to the Chief Justice of the concerned High Court. He added that there have been cases where this court whilst disposing of a special leave petition or an appeal has, whilst remanding the matter, directed that the same be placed before some other judge. He however fairly conceded that such directions were not pursuant to any power to transfer. In our view this is an identical situation. It is for that reason that section 10, which had been incorporated in the 1979 Act was advisedly not incorporated in the Special Court Act. 33. In this appeal we are not concerned with the question whether the High Court would have judicial superintendence under article 226 and/or 227 and/or whether in exercise of such jurisdiction, even if there is one, whether a High Court would or could transfer a case from one judge to another. We therefore express n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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