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1999 (5) TMI 594

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..... rit petitioners under the Prevention of Corruption Act. The High Court by two separate judgments of the two learned Judges who constituted the Division Bench, dismissed the writ petitions, by holding that Section 3 insofar as it empowers the Government to appoint special Judges for such case or group of cases is constitutionally valid and not violative of Articles 14 and 21 of the Constitution. It also held that the establishment of three additional Sessions Courts at Chennai and appointment of Judges of those Courts as Special Judges by the notification dated 30-4-1997 is also valid and that in no way contravenes Articles 14 and 21 of the Constitution nor does that stand vitiated by mala fides either factual or legal. Aggrieved by the judgment of the High Court, the appellants (except the appellant in appeal arising out of SLP c No, 2805 of 1998) have filed these appeals. Subsequent to the filing of the SLPs, out of which these appeals arise, the Central Government, in exercise of it powers under sub-section (1) of Section 3 issued a notification on 5:2.1999 appointing the XIth, XIIth and XIIIth Additional City Civil and Sessions Judges, Chennai as Special Judges for trial of of .....

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..... t and considering its credential for initiating a public interest litigation of this type, we have granted leave to it to prefer an appeal against the said order passed by the High Court. As regards Writ Petition No. 93 of 1999 filed by the Advocate General of the State of Tamil Nadu, the respondents therein have challenged the locus standi of the Advocate General to file it. From what is stated therein, it becomes clear that the writ petition is filed by him not in his personal capacity as an enlightened citizen or as an advocate interested in proper working of the Courts but in his capacity as the Advocate General of Tamil Nadu. He had appeared on behalf of the State of Tamil Nadu before the Madras High Court in the writ petitions filed by Ms. Jayalalitha and others. The State of Tamil Nadu has not filed any petition challenging the notification issued by the Central Government not it has authorised the Advocate General to do so. It is, therefore, difficult to appreciate how the Advocate General of Tamil Nadu could file its writ petition challenging the notification dated 5;2.1999 issued by the Central Government under Section 4(2) of the P.C. Act. Realising this difficulty in .....

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..... e writ petitions the points raised were almost identical. Therefore, they were all heard together and disposed of by two common judgments, as stated above. Before the High Court various contentions were raised on behalf of the appellants. However, we need not refer to them all as-only a few out of them have been raised before us. Briefly stated, validity of Section 3 was challenged insofar as it empowers the Government to appoint as many special Judges as may be necessary for such case or group of cases as may be specified by it, on the ground that thereby it confers unguided and arbitrary discretion on the Government. Neither the Act nor Section 3 contains any policy or principle for classification by the Government and, thus, it permits the Government to appoint a Special Judge to try a ease against an individual and deny him a fair and equal treatment that an accused placed in similar circumstances would otherwise get. In the alternative, it was contended that the exercise of power by the State Government under Section 3 of the Act was mala fide as it was exercised with a view to victimise the political opponents who are now out of power. It was also contended that by specifyi .....

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..... d, therefore, its action was not violative of Article 235 of the Constitution. The Union Government supported the action of the government by stating that the State Government being in better position to judge the needs and exigencies of the situation has exercised the power in public interest. It also stated that the accused of those cases form a class by themselves. The High Court rejected the challenge to the validity of Section 3 by holding that appointment of a Special Judge does not amount to creation of a Special Court and, therefore, even when the Government appoints a Special Judge to try a case or group of cases the accused is tried by the same class of Judges and by the same procedure, as in the case of an accused who is tried by a special Judge appointed for that area and, therefore, that cannot by itself lead to discrimination and, hence, Section 3 cannot be said to be violative of Article 14 of the Constitution, even if it is held that neither Section 3 nor the Act discloses any policy or principle for appointment of a Special Judge for a case or group of cases. The High Court also held that the object and the scheme of the Act provides sufficient guidelines for ex .....

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..... appellants, can be briefly stated as under ;- 1. Section 3(1) of the P,C. Act on a correct interpretation, permits appointment of a Special Judge for a case or group of cases only when no Special Judge has been appointed for the area or areas within which the offence under the Act has been committed. 2. If Section 3(1) is interpreted and construed otherwise, that is to mean that it also empowers the Governments to appoint a Special Judge for a case or group of cases even when there is a competent Special Judge for the area to deal with such a case or cases, then it will have to be regarded as violative of Article 14 of the Constitution, as neither Section 3 nor the Act as a whole discloses any policy or principle for deciding when a Special Judge can be appointed for a case or group of cases and, thus, it enables the Government to exercise the power in an arbitrary and discriminatory manner by picking and choosing a particular case for trial by a particular Special Judge. 3. Even if Section 3(1) is held to be valid, exercise of power by the State Government thereunder and issuance of notification dated 30.4.1997 was mala fide both in law and fact and, therefore, the said n .....

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..... s not stand in isolation and, therefore, it will not be proper to ascribe to it the meaning which is not consistent with the context of Section 3. It is a matter of common knowledge that the word `or' is at times used to join terms when either one or the other or both are indicated. Section 3 is an empowering section and depending upon the necessity the Government has to appoint Special Judges for an area or areas or case or group of cases. Even in the same area where a Special Judge has already been appointed, a necessity may arise for appointing one more Special Judge for dealing with a particular case or group of cases because of some special features of that case or cases or for some other special reasons. We see no good reason to restrict the power of the Government in this behalf by giving a restricted meaning to the Word `or'. In our opinion, the word `or' as used in Section 3 would mean that the Government has the power to do either or both the things. Therefore, the first contention raised on behalf of the appellants has to be rejected. Re Contention No. 2. The validity of Section 3(1) of the Act is challenged on the ground that it is violative of Article .....

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..... al is a thing which is desirable in all legal proceedings. The word used here is speedier which is a comparative term and as there may be degrees of speediness, the word undoubtedly introduces an uncertain and variable element. But the question is how is this necessity of speedier trial to be determined? Not by reference to the nature of the offences or the circumstances under which or the area in which they are committed, nor even by reference to any peculiarities or antecedents of the offenders themselves, but the selection is left to the absolute and unfettered discretion of the executive government with nothing in the law to guide or control its action. This is not a reasonable classification at all but an arbitrary selection. It was submitted by the learned counsel for the appellants that the law laid down by this Court in Anwar Ali's case is still good law as can be noticed from the decisions Of this Court in Hamdard Dawa Khanna v. Union of India, [I960] 2 SCR 671, In re the Special Courts Bill, [1979] 2 SCR 476, A.R. Antulay v. R.S Nayak and Anr., [1988] 3 SCC 602, A.N. Parasuraman and Ors. v. State of Tamil Nadu, [1989] 4 SCC 683 and Kartar Singh v. State of Punjab .....

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..... Delhi, [1962] 2 SCR 125, this Court has held that : such guidance may thus be obtained from and afforded by (a) the preamble read in the light of the surrounding circumstances which necessitated the legislation, taken in conjunction with well known facts of which the Court might take judicial notice or from which it is apprised by evidence before it in the form of affidavits, Kathi Raning Rawafs case being an instance where guidance was gathered in the manner above indicated (b) or even from the policy and purpose of the enactment which may be gathered from other operative provisions applicable to analogous or comparable situations or generally from the object sought to be achieved from the enactment. A relevant aspect which is also required to be borne in mind in this behalf is, as pointed out in Jyoti Prasad's case (supra) : the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided a .....

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..... uirement of a separate special Judge for a case or group of cases in addition to the area special judge who could have otherwise dealt with that case or those cases would also depend upon various variable circumstances. Therefore, no fixed rule or guideline in that behalf could have been laid down by the legislature. The legislature had to leave it to the discretion of the Government as it would be in a better position to know the requirement Further, the discretion conferred upon the Government is not absolute. It is in the nature of statutory obligation or duty. It is the requirement which would necessitate exercise of power by the Government, When a necessity would arise and of what type being uncertain the legislature could not have laid down any other guideline except the guidance of `necessity'. It is really for that reason that the legislature while conferring discretion upon the Government has provided that the Government shall appoint as many special judges as may be necessary. The words `as may be necessary' in our opinion is the guideline according to which the Government has to exercise its discretion to achieve the object of speedy trial. The term `necessary .....

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..... requirement in public interest. Again conferment of such wide discretion by Section 3 is not likely to lead to discrimination either in the matter of the Court by which the accused is to be tried or the procedure by which he is to be tired. Whether he is tried by a special judge for the area or a special judge appointed for a case or group of cases he will be tried by a judge of the same class and by the same procedure. We have already pointed out earlier that appointment of a special judge to try a particular case or group of cases is not the same thing as establishing a special court for trying a case or cases. The accused will be tried by a special judge who is also sessions Judge appointed under the Code of Criminal Procedure, as in the case of an accused tried by the area Special Judge. The procedure to be followed by a special judge whether he is an Area Special Judge or judge appointed specially for a case is the same. Thus the accused is hot exposed to a different treatment as regards the court by which he is to be tried or the procedure to be followed in his case. For all these reasons we are of the view that the discretion conferred by Section 3 upon the Government .....

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..... ound that Section 14 which empowers the Government to issue such a notification infringes Article 14 of the Constitution. The said contention was rejected by the Court following its earlier judgment in M.K. Gopalan's case (supra); It was strenuously contended on behalf of the learned counsel for the appellants that in issuing the impugned notification dated 30.4.1997 the Government has acted mala ride-both in law and fact. It was submitted that the Government has issued the said notification with a view to target the political opponents and not because any real or genuine necessity was felt for the trial of cases specified in the notification by separate special judges. It was submitted by Mr. K.K. Venugopal, learned senior counsel, that there were many area special judges in the city of Chennai and the necessity of having more special judges in the city was satisfied by the order dated 16.4.1997 and thus there was hardly any further necessity for appointment of three special judges for trying the cases specified in the notification and which were mainly against the Chief Minister and her cabinet colleagues or public officials. He also submitted that many older cases were .....

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..... to some material placed in this behalf by the State before the High Court in the earlier part of our judgment. In view of the material which has been brought on record it cannot be seriously disputed that the cases which are specified in the notification being of complex nature will not be over within a period of about 10 years if they are left to be tried by the area special judges. Moreover as pointed put by this Court in Re, Special Courts' Bill 197$, [1979] 2 SCR 476, speedy trial of offences of a public nature committed by persons who have held high public or political offices in the country and others connected with the commission of such offences is the heart of the matter. Thus the speedier trial of corruption eases against public servants/ officers holding high Government officials being a relevant consideration it cannot be said that by appointing separate special judges for speedier trial of those cases the Government has either singled out cases against its political opponents or that the power has been exercised by the Government for political targetting. The appellants have not brought on record any material to show that the cases of similarly situated politicia .....

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..... pearing for the Advocate General of Tamil Nadu and VOICE respectively that this power of the Central Government has to be read consistently with Section 3 of the Act. Section 3(1) empowers the Central Government or the State Government to appoint as many special judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification issued in (hat behalf to try the offences punishable under the Act. Section 4(2) provides that offences specified in sub-section (1) of Section 3 shall be tried by special Judges only. Sub-section (2) of Section 4 then provides by which special Judges the offences under the Act are to be tried. It reads as under : 4(2). Every offence specified in sub-section (1) of Section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, 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 Central Government. Whereas Section 3 empowers both the Central Government and the State Government to appoint special Judges, sub-section (2) of Sec .....

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..... ecial judge or judges is/are appointed for a case or group of cases then only that special judge or those special judges can hear those cases, otherwise the very purpose of making :such appointment or appointments would be frustrated. However, we need not go into this larger question as we are of the view that the power conferred upon the Central Government under Section 4(2) is also to be exercised if that becomes `necessary'. The same guideline contained in Section 3(1) must apply while exercising power under Section 4(2) also. The trial of cases specified in the impugned State notification was going on since May, 1977 and no necessity had arisen till February, 1999 to exercise the power of allocation in respect of those cases. The Central Government has not placed any material before us to show why it become necessary for it after such a long time, to make real location of cases to be tried by special judges in the city of Chennai. It has pleaded only its power to do so. The allocation was made in consultation with the High Court. Really, the allocation amongst the three special judges can be said to have been done by the High Court though the formal notification in that beh .....

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