TMI Blog2020 (5) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... rth respondent, there were no magisterial offences / cases in this category as of 05.03.2019. Be that as it may, a simple way out would have been to constitute / designate more courts at magisterial level, as Hon ble Supreme Court has already given directives with specificity in this regard. To be noted, even today, it is submitted without any disputation that Courts of Judicial Magistrates which were designated / constituted in 31 judicial districts for trying cases involving M.Ps / M.L.As are still functioning. Therefore, 6.9.2019 letter / communication of fourth respondent, third respondent acting on the same and making G.O.Ms.No.535 dated 11.10.2019 are presenting some difficulty. Notwithstanding clear / specific directives from Hon ble Supreme Court, if and if at all non designating lone Metropolitan Magistrate Court in Chennai alone had become imperative / inevitable, ideally, third and fourth respondents could have approached Hon ble Supreme Court and sought suitable directives. Admittedly, this was not done. This Court deems it pertinent to mention that there is no submission / explanation, much less material regarding why more Metropolitan Magistrates in Chennai were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged offence or on the date of launching complaints, as Hon ble Supreme Court has directed all pending cases to be transferred, this argument fails - Likewise, the argument that only one of the petitioners has become an M.P is of no avail to petitioners, as Hon ble Supreme Court has directed transfer of all cases involving sitting / former M.Ps /M.L.As. This Court deems it appropriate to make a parting observation that 4th and 3rd respondents in first and second Crl.O.Ps will do well to designate one or more Metropolitan Magistrate/s in Chennai for trying criminal cases related to elected M.Ps/M.L.As - Petition dismissed. - Criminal O.P.Nos.22136, 22137 of 2019, 1526 and 1527 of 2020 and Crl.M.P.Nos.11481, 11482 of 2019, 944 and 946 of 2020 - - - Dated:- 12-5-2020 - HON BLE MR.JUSTICE M.SUNDAR For Petitioners: Mr. K.T.S. Tulsi, Senior Counsel Mr. Amit Desi, Senior Counsel Mr. Kunal Vajani Mr. Gopalakrishna Shenoy Mr. Kunal Mimani for Ms. C. Uma and Mr. N.R.R. Arun Natarajan in Crl.O.P.Nos.22136 22137/2019 and Crl.O.P.Nos.1526 1527/2020 For Respondents: Mr. N. Baskaran and Ms. M. Sheela, Special Public Prosecutors (IT) assisted by Mr. Siddarth for R-1 in Crl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. As already mentioned supra, said criminal complaints and prayers pertaining to quash / assailing transfer of same is the central theme of instant four Crl.O.Ps. on hand. To be noted, while transfer of said criminal complaints from Additional Chief Metropolitan Magistrate Court, E.O.-II, Egmore, Chennai (hereinafter referred to as EO Court for convenience) to Special Court for trial of criminal cases related to elected M.P / M.L.As of Tamil Nadu presided over by a Judicial Officer in the cadre of District Judge (hereinafter referred to as Sessions Court and/or transferee court for the sake of convenience) and challenge to the same is the central theme of first and second criminal O.Ps., central theme of third and fourth Crl.O.Ps is quashing said criminal complaints. 5. Said criminal complaints have been filed by the Deputy Director of Income Tax (Investigation) Unit-3(2), Nungambakkam, Chennai-34 under Section 200 of The Code of Criminal Procedure, 1973 (2 of 1974) (hereinafter Cr.P.C. for the sake of brevity). 6. As already mentioned supra, said criminal complaints is a collective reference to aforementioned two complaints. While the first criminal complaint ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iple, petitioners received notices from Magistrate Court for appearance in said criminal complaints. Thereafter, IT Department responded and gave reasons (in response to petitioners request for reasons based on GKN Driveshafts principle) which are to the effect that petitioners allegedly received some part of consideration in cash for sale of immovable property mentioned herein above, but did not disclose the same. It is also the case of IT Department that searches were conducted in the office of a company in which one of the petitioners is a Director, some materials (soft copies) were shared with IT Department by Enforcement Department, searches were conducted in the office of purchaser company, some small note books were recovered which as explained by Accountant of the purchaser company leads to the belief that petitioners have received part of consideration by cash (for sale of aforementioned immovable property) and have not disclosed the same in their returns. 9. Be that as it may, this Court is informed that Hon ble Supreme Court passed orders in Ashwini Kumar Upadhyay case, a Public Interest Litigation , i.e., W.P.(C)No.699 of 2016 on 01.11.2017 and thereafter gave furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded separately by way of proceedings on the same day which shall be treated as an integral part and parcel of this order. However, these proceedings (now forming part of case file) are not reproduced here to avoid prolixity and avert this order becoming verbose. On 21.01.2020, when these Crl.O.Ps were thus listed before me for the first time, this court was informed that said criminal complaints had progressed (in the transferee court) in the interregnum (pending first and second Crl.O.Ps) and this court was also informed that it had reached the stage of framing of charges. This Court was further informed that said criminal complaints were simultaneously listed before Sessions / transferee Court for framing charges on the same day, i.e., 21.01.2020 and therefore, as jurisdiction of Sessions Court, i.e., transferee court itself (pursuant to transfer that is being assailed) has been put in issue, this Court had put said criminal complaints on hold by way of interim orders. To be noted, this and other reasons have been articulated in the interim order itself. 11. This court now embarks upon the exercise of discussing and giving its dispositive reasoning in third and fourth Crl. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter, as a matter of first principle, this court deems it appropriate to deal with the limitation aspect first (fourth point in summation supra). 16. Normally for resolving the issue of limitation, whenever it is raised in a case, a chronicle of events becomes necessary. In this case, interestingly, the question of limitation can be decided without even adverting to chronicle of events and dates. The reason is fairly simple. There is no disputation or disagreement before this court that there is a special enactment which goes by the name The Economic Offences (Inapplicability of Limitation) Act, 1974 (Act No.12 of 1974) { Act No.12 of 1974 for brevity} and the Schedule to the enactment includes IT Act. As Mr.Amit Desai, learned senior counsel very fairly submitted that he does not enter upon any disputation or contestation on this aspect of the matter, the criminal complaints being complaints instituted otherwise than on police report for alleged offences under sections 276C(1), 277 of IT Act and same provisions read with section 278 of IT Act clearly do not have any limitation. Relevant provision of Act No.12 of 1974 is section 2 read with the Schedule and the same read a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dule is Income Tax Act, 1961, i.e., IT Act and Chapter XXXVI of Cr.P.C pertains to Limitation for taking cognizance of certain offences. 18. Therefore, this court comes to the conclusion (as a matter of inevitable sequitter) that said criminal complaints are not barred by limitation. To be noted, learned Prosecutors for IT Department submitted that time line set out in section 153 applies only to assessments and not for prosecution. However, in the light of 1974 special enactment, i.e., Act No.12 of 1974, it is not necessary to delve into this aspect of the matter any further. 19. This takes us to the next aspect of the matter touching upon assessment (first and second points in summation supra). The simple and straight reply of learned Prosecutors for IT Department is, said criminal complaints are not based on assessment/s. The sole and simple argument of learned Prosecutors in this regard is said criminal complaints are based on search / seizure and not on assessments. It is also pointed out that Enforcement Directorate which conducted search and seizure in a company which goes by the name Advantage Strategic Consulting Pvt. Ltd. in which (this Court is informed) one of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To be noted, Bhajan Lal case law itself says so. Be that as it may, time honoured principle that in matters seeking quashment of a criminal complaint, uncontroverted averments in the complaint without any addition or subtraction should be looked into to examine whether an offence can be made out or not (if proved) continues to operate as the basic and fundamental test. In this view of the matter, a careful granular analysis of Sections 276C(1), 277 and 278 of IT Act and the ingredients of the same leaves this court with the considered view that it is unable to persuade itself and believe that even if all the averments / allegations in complaints are proved to the hilt in the trial, an offence will not be made out, though the prosecution is based on search / seizure and not on returns. In other words, it all depends on what unfurls in the trial. 21. Further, prosecution (based on search / seizure and not assessment under IT Act) being by way of criminal complaints other than on a police report, i.e., said criminal complaints, a careful reading of two complaints, i.e., said criminal complaints inter-alia in the context of retraction (by purchaser company) submission of petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exercise of discussing rival submissions and articulating the dispostive reasoning of this Court, it is necessary to give an adumbration of some facts (to be noted, most of these facts have not been subjected to disputation / contestation) and the same (with dates wherever applicable) is as follows: (a) Said criminal complaints, i.e., both criminal complaints were filed in the Court of Additional Chief Metropolitan Magistrate (E.O.II), Egmore, Chennai, i.e., EO Court on 12.09.2018. To be noted, it is urged by the petitioners that this is also a court constituted under section 280A of IT Act and is therefore constituted under a law (statute) other than Cr.P.C as described in section 6 of Cr.P.C. To be noted, this point is in the realm of disputation / contestation. (b) The court to which said criminal complaints, i.e., two criminal complaints have now been transferred is a Special Court for trial of Criminal Cases related to elected M.Ps/M.L.As. of Tamil Nadu, Singaravelan Maligai, Chennai. To be noted, there is no disputation or disagreement that this transferee Court, i.e., Sessions court is a Court of Sessions within the meaning of section 6(i) of Cr.P.C. There is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in Ashwini Kumar Upadhyay case, G.O.Ms.No.1423 was made on 6.9.2018 constituting a Special Court at Chennai (for entire State of Tamil Nadu) to try criminal cases involving elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, followed by G.O.Ms.No.1568 dated 17.9.2018, whereby amendment notification has been issued to the effect that a Special Court in the cadre of Sessions Judge at Chennai will stand substituted in place of the expression a Special Court at Chennai . This was further followed by as many as five G.Os, namely G.O.Ms.No.209 to G.O.Ms.No.213, all dated 26.04.2019. Net / combined effect of these five G.Os is, Special Courts to try cases involving M.P/M.L.As throughout Tamil Nadu (every Judicial District / Sessions Division) were created at both Sessions and Magisterial levels. In Chennai, such Courts became four in number and they are, two Special Courts in Sessions Cadre, one in Assistant Sessions Cadre and one Magistrate Court (To be noted, this Magistrate Court is II Metropolitan Magistrate Court, Egmore, Chennai) falling under section 6(ii) of Cr.P.C. To be noted, while it is Metropolitan Magistrate in Chennai, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate (for the sake of convenience, clarity and specificity) to set out the same as a narrative with short discussions wherever imperative and adumbration rolled into one, which is as follows: (a) Chapters XXI and XXII of IT Act captioned Penalty Imposable and Offences and Prosecutions respectively containing sections 270 to 275 (Chapter XXI) and sections 275A to 280D (Chapter XXII) are of relevance. To be noted, said criminal complaints, as already alluded to supra, are under sections 276C(1), 277 of IT Act and said provisions read with 278 of IT Act. Therefore, the three main provisions of law qua said criminal complaints are contained in Chapter XXII of IT Act. (b) Section 279A of IT Act captioned Certain offences to be non-cognizable reads as follows : 279A. Certain offences to be non-cognizable.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under section 276B or section 276C or section 276CC or section 277 or section 278 shall be deemed to be non-cognizable within the meaning of that Code. (c) A perusal of Section 279A of IT Act makes it clear that all the three provisions of IT Act w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction to deal with any such application. (6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein. Explanation .-For the purposes of this Code, appointment does not include the first appointment, posting or promotion of a person by the Government to any Service, or post in connection with the affairs of the Union or of a State, where under any law, such appointment, posting or promotion is required to be made by Government. 16. Courts of Metropolitan Magistrates.-( 1)In every metropolitan area, there shall be established as many Courts of Metropolitan Magistrates, and at such places, as the State Government may, after consultation with the High Court, by notification, specify. (2) The presiding officers of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Courts and Offences triable by Special Court respectively which read as follows : 280A. Special Courts.-( 1) The Central Government, in consultation with the Chief Justice of the High Court, may, for trial of offences punishable under this Chapter, by notification, designate one or more courts of Magistrate of the first class as Special Court for such area or areas or for such cases or class or group of cases as may be specified in the notification. Explanation .-In this sub-section, High Court means the High Court of the State in which a Magistrate of first class designated as Special Court was functioning immediately before such designation. (2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial. 280B. Offences triable by Special Court.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) the offences punishable under this Chapter shall be triable only by the Special Court, if so designated, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as the State Government may, by notification, specify in this behalf, cease to be a metropolitan area; but notwithstanding such cesser, any inquiry, trial or appeal pending immediately before such cesser before any Court or Magistrate in such area shall continue to be dealt with under this Code, as if such cesser had not taken place. (5) Where the State Government reduces or alters, under sub-section (3), the limits of any metropolitan area, such reduction or alteration shall not affect any inquiry, trial or appeal pending immediately before such reduction or alteration before any Court or Magistrate, and every such inquiry, trial or appeal shall continue to be dealt with under this Code as if such reduction or alteration had not taken place. Explanation.-In this section, the expression population means the population as ascertained at the last preceding census of which the relevant figures have been published. (l) As far as classes of Courts are concerned, the adumbration is in section 6 of Cr.P.C. which reads as follows: 6.Classes of Criminal Courts.- Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In punishable with death, imprisonment for life, or imprisonment for more than 7 years Cognizable Non-bailable Court of Session. If punishable with imprisonment for 3 years and upwards but not more than 7 years Ditto Ditto Magistrate of the first class. If punishable with imprisonment for less than 3 years or with fine only. Non-cognizable Bailable Any Magistrate. (o) A perusal of Part-II reveals that cases on hand fall under second Entry under Part-II of First Schedule. (p) In this regard, it may be necessary to remind oneself about section 279A of IT Act (reproduced supra), whereby offences qua said criminal complaints have been made as non cognizable and therefore, in the second column with regard to second Entry which we are concerned with, cognizable will have to be read as non cognizable for the purpose of cases on hand. 28. In the aforesaid backdrop, adumbration of relevant provisions, trajectory of events and undispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 374(3) of Cr.P.C and if the case is disposed of by transferee court, appeal will lie to High Court under section 374(2) of Cr.P.C. In other words, only Appellate forum will change and there can be no objection to this at the instance of petitioners; (d) Revision under section 397 Cr.P.C. is a discretionary jurisdiction and it is not a legal right. (e) As a corollary to preceding two submissions, it was argued that there can be no complaint of one tier being taken away, besides saying that taking one tier away is permissible; (f) II Metropolitan Magistrate s court which was designated to try cases involving M.Ps./M.LAs had to be non designated only owing to the volume of cases / work load there and petitioners cannot object to the same; (g) Transfer was done in deference to the direction given by Hon ble Supreme Court in Ashwini Kumar Upadhyay case and therefore, petitioners cannot contest or find fault with the same. (h) Relevant date for deciding whether a particular case involving M.Ps/M.L.As is the date of transfer and not date of launching of complaint or date of alleged offence. 30. To be noted, elaborate submissions touching upon very many ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner which is indicated below: 1. Instead of designating one Sessions Court and one Magisterial Court in each District we request each High Court to assign/allocate criminal cases involving former and sitting legislators to as many Sessions Courts and Magisterial Courts as the each High Court may consider proper, fit and expedient. This, according to us, would be a more effective step instead of concentrating all the cases involving former and sitting legislators in a Special Court(s) in the district. (Underlining and double underlining made by this Court to highlight) Relevant portion of order dated 25.03.2019 : Having heard the learned counsel for the applicant, we deem it appropriate to ensure full compliance of our previous Order passed in Writ Petition (C) No. 699 of 2016. We direct the Registrar General of the High Court of Judicature at Madras to transfer all criminal cases related to MPs and MLAs pending under its jurisdiction to the Special Court for cases related to Elected MP and MLA of Tamil Nadu, Chennai. 32. To be noted, it is the stated position of learned counsel for fourth respondent that transfer of said criminal complaints from E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (xvi) Letter in Roc No.5745/2018/G4 dt.12.4.2019 issued by R-4. (xvii) G.O.Ms.No.209, dated 26.04.2019 issued by R-3. (xviii) G.O.Ms.No.210, dated 26.04.2019 issued by R-3. (xix) G.O.Ms.No.211, dated 26.04.2019 issued by R-3. (xx) G.O.Ms.No.212, dated 26.04.2019 issued by R-3. (xxi) G.O.Ms.No.213, dated 26.04.2019 issued by R-3. (xxii) OM in Roc No.5745/2018/G4 dt.7.6.2019 by R-4. (xxiii) OM in Roc No.5745/2018/G4 dt.7.6.2019 by R-4. (xxiv) Letter in Roc No.5745/2018/G4 dt.9.7.2019 by R-4. (xxv) OM in Roc No.5745/2018/G4 dt.17.7.2019 by R-4. (xxvi) Letter in Roc No.5745/2018/G4 dt.6.9.2019 by R-4. (xxvii) G.O.Ms.No.535 dated 11.10.2019 issued by R-3. 34. Upto Serial No.(xxv) above, there is absolutely no difficulty. However, sequence of one proceedings of fourth respondent and consequent Government order issued by third respondent thereafter being proceedings dated 06.09.2019 made by fourth respondent and G.O.Ms.No.535 dated 11.10.2019 by third respondent which have been given serial numbers (xxvi) and (xxvii) chronologically supra present some problem and there will be discussion about this infra elsewhere in this orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstituted vide G.O.Ms.No.697 dated 9.7.2018. Thereafter, Hon ble Supreme Court passed one more order dated 12.09.2018 wherein after referring to earlier order dated 21.8.2018 and more particularly points 2 and 4 thereat (extracted and reproduced supra), Hon ble Supreme Court wanted to know whether 12 Special Courts Pan India are sufficient or some more courts are required. When things stood as above, fourth respondent issued proceedings dated 14.9.2018 (Sl.No.(x) supra) saying that committal of cases to sessions Court, i.e., aforementioned Special Court constituted vide G.O.Ms.No.697 in Chennai shall not be done directly, but shall be done to respective jurisdictional courts and thereafter, the same shall be committed to the special court in Chennai. To be noted, upto this point of time, (as already mentioned supra), there was only one special court for trying cases involving former / present M.Ps / M.L.As, for the whole of Tamil Nadu and that one special court was constituted in Chennai vide G.O.Ms.No.697 dated 9.7.2018 (notified vide G.O.Ms.No.1423 dated 6.9.2018) which has also been referred to elsewhere supra in this order. 38. Thereafter, one more proceedings was made by f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MLAs have to be transferred to the Special courts for fast tracking. Thereafter, fourth respondent appears to have written a letter dated 12.04.2019 (this letter was not placed before this Court, but there is a reference to this letter in G.O.Ms.No.209 dated 26.04.2019). 40. It is under these circumstances, third respondent issued abovementioned G.O.Ms.No.209 dated 26.04.2019. It is clear that this Government order is pursuant to fourth respondent s aforementioned letter dated 12.04.2019 and vide this G.O.Ms.No.209 dated 26.04.2019, one more special court in the cadre of sessions Judge, one more additional special court in the cadre of Assistant Sessions Judge were constituted and the same were notified vide G.O.Ms.No.210 dated 26.04.2019. Thereafter, G.O.Ms.Nos.211 and 212 also came to be issued on the same day, namely 26.04.2019. A combined reading of G.O.Ms.Nos.211 and 212 brings to light that all Principal District Judges in all Sessions Divisions (other than Chennai) in Tamil Nadu were designated as Special Courts to try cases involving sitting and former M.Ps / M.L.As and therefore, the notification made vide G.O.Ms.No.1423 dated 6.9.2018 and G.O.Ms.No.1568 dated 17.9.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut this infra. 43. Third and fourth respondents have understood the orders of Hon ble Supreme Court as orders / directives to constitute / designate certain courts as Special Courts for the purpose of fast tracking cases involving former and present M.Ps / M.L.As. There are three very significant aspects of these directions of Hon ble Supreme Court which have also been understood correctly (upto a point, i.e., upto proceedings of fourth respondent prior to 6.9.2019 proceedings, i.e., serial number (xxv) in adumbration supra) by third and fourth respondents. First significant aspect is, Hon ble Supreme Court directed creation of two categories of Special Courts, i.e., Sessions Court and Magisterial Courts. The second more significant aspect of the orders of Hon ble Supreme Court is, the directives were to create as many as Sessions Courts and as many as Magisterial Courts that are necessary (obviously depending on number of cases involving M.Ps / M.L.As and existing work load of courts). The third aspect is, all this was to fast track criminal cases involving present and former M.Ps/M.L.As. It is because of this clear understanding upto aforementioned point that courts were desig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Judicial Magistrates which were designated / constituted in 31 judicial districts for trying cases involving M.Ps / M.L.As are still functioning. Therefore, 6.9.2019 letter / communication of fourth respondent, third respondent acting on the same and making G.O.Ms.No.535 dated 11.10.2019 are presenting some difficulty. Notwithstanding clear / specific directives from Hon ble Supreme Court, if and if at all non designating lone Metropolitan Magistrate Court in Chennai alone had become imperative / inevitable, ideally, third and fourth respondents could have approached Hon ble Supreme Court and sought suitable directives. Admittedly, this was not done. In this context, this Court deems it pertinent to mention that there is no submission / explanation, much less material regarding why more Metropolitan Magistrates in Chennai were not designated (as per directives of Hon ble Supreme Court, i.e., as many as deemed necessary at Sessions and magisterial levels) though this Court is informed that there are more than 20 Metropolitan Magistrates courts in Chennai. However, considering the scope of cases on hand, this court refrains itself from dilating further into this aspect of the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Special Courts as considered fit, proper and expedient at both Sessions and Magistrates levels. 47. Communication dated 06.09.2019 from 4th respondent to 3rd respondent (which has already been scanned and reproduced supra) and one of the two official memoranda dated 7.6.2019 bearing reference Roc No.5745/2018/G4 of 4th respondent inter-alia to Principal Judge of City Civil Court, Chennai brings to the fore another threefold flaws. One pertains to hierarchy, second pertains to transfer and third pertains to transferee court. This comes to light from the 3rd, 4th and 5th paragraphs of the communication dated 6.9.2019 from 4th respondent to 3rd respondent. This communication in sum and substance says that II Metropolitan Magistrate Court is presided by a judicial officer in the cadre of Senior Civil Judge (like the Additional Special Court which is also presided by a judicial officer in the cadre of Senior Civil Judge). Cadre in service and hierarchy as in Cr.P.C are conceptually two separate aspects. In any event, without even going into this aspect, even if the matter is tested on a demurer the second flaw comes to fore. The transfer was ultimately made to Special Court No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Magistrate, whereas in Chennai alone, accused will stand trial in a Sessions Court. This is clearly a disparity / lack of parity, is learned petitioners counsel s say, but this leads to the question as to what is the prejudice caused to petitioners. 50. This straightaway takes us to the aspect of the Court of Sessions not being a court having original jurisdiction and committal being imperative for a court of Sessions to take up the matter. The answer of fourth respondent qua this aspect of the matter is predicated on Ranbir Yadav and Classic Credit principles laid down by Hon ble Supreme Court in Ranbir Yadav Vs. State of Bihar reported in (1995) 4 SCC 392 and Securities and Exchange Board of India Vs. Classic Credit Limited reported in (2018) 13 SCC 1. Predicating and positing submissions on these case laws, it was argued that in cases of transfer, committal is not necessary. This court also notices that Classic Credit case is an authority for the broad principle that a revision under section 397 Cr.P.C. cannot be claimed as legal right. 51. To be noted, with regard to committal, for Court of Sessions taking cognizance of a case without committal by a Magistrate, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed had been held to be non cognizable under section 56 of erstwhile FERA and therefore, there is no exclusivity. 55. This takes us to yet another aspect of the submissions of learned counsel for fourth respondent. That aspect of submission is that transfer though made on administrative side is traceable to Article 227 of the Constitution and section 407 of Cr.P.C. This argument is also predicated on Kamlesh Kumar principle, the case law being Kamlesh Kumar Vs. State of Jharkhand reported in (2013) 15 SCC 460. 56. As the entire exercise we are concerned with in these matters is solely owing to the directions of Hon ble Supreme court (even according to respondents), this Court deems it appropriate to set out an interesting consequence of events, in England. This is pertinent to matters on hand as it pertains to unwavering loyalty when it comes to hierarchy of Courts. This trajectory pertains to Courts of Appeal and House of Lords in England. In 1971, in a case which came to be known as Cassell case (Broome Vs. Cassell Co. Ltd. {[1971] 2 QB 354}) , the question as to whether exemplary damages could be awarded arose. It was believed that answer to this question lay in an earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view taken by Lord Denning in Schorsch Meier case that United Railways principle had become obsolete stood vindicated. What is of utmost significance is, though House of Lords also held that United Railways principle had become obsolete (in Miliangos case), it held that Courts of Appeal which are bound by the rule of precedents are not free to disregard the verdict of a higher Court. To put it differently, it was held that the changed position qua United Railways has to be made by House of Lords themselves and not by Courts of Appeal. Therefore, 4th respondent / 3rd respondent non designating lone II Metropolitan Magistrate without approaching Hon ble Supreme Court and now making an effort to take umbrage under Article 227 and section 407 of Cr.P.C does not impress this Court. This is more so, as option for designating more number of Metropolitan Magistrate Courts (if one designated court is overburdened) was always there. To put it otherwise, when Hon ble Supreme Court has not directed magisterial offences to be transferred to Sessions Court, the same cannot be done by 3rd and 4th respondents by citing workload of one court, particularly when more courts are available for designa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected before this Court pertains to further revision under section 397 Cr.P.C post appeal against conviction, if that be so. As the law is clear that revision is not a right unlike an appeal, this lone difference being canvassed as a ground by petitioners gets obliterated. The result is, in the cases on hand, as far as petitioners are concerned, there is no difference in standing trial in a Magistrate Court and standing trial in Sessions Court. (e) Whether Economic Offences Court in Egmore is a Special Court within the meaning of section 280A of IT Act (absent notification from Central Government as far as Tamil Nadu is concerned) becomes an academic debate (as far as instant cases are concerned), as Hon ble Supreme Court has directed transfer from Special court also. (f) Lack of parity between accused in Chennai and similarly placed accused in other 31 judicial Districts, as there are designated Judicial Magistrates in all other judicial districts is a larger issue and this court refrains itself from entering into that arena as petitioners are unable to demonstrate any prejudice to them owing to this lack of parity. (g) Though there was II Metropolitan Magistrate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion, it can be safely concluded that the existence of the powers of the learned Single Judge under Section 482 and Article 226 to quash the proceedings cannot be disputed or questioned. However, those powers have to be exercised in consonance with the well recognised principles laid down in a catena of cases by the Supreme Court. 76.When an aggrieved person approaches the court in a petition under Article 226 read with Section 482 of the Code of Criminal Procedure then the court is possessed with enormous powers to do justice or remove injustice. The Court s vast powers are meant to prevent any abuse of the process or to secure the ends of justice, both under Section 482 Cr.P.C and Article 226 of the Constitution. These powers must be exercised for the advancement of justice. Ends of justice are always higher than the ends of mere law and for accomplishing that noble goal the courts have rightly been invested with adequate powers. Paragraphs 14, 21 to 26 in Pepsi Foods case : 14. Under Article 227 of the Constitution of India the High Court has power of superintendence over courts. Clause (1) provides that every High Court shall have superintendence over all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to. 23.In Waryam Singh v. Amarnath [AIR 1954 SC 215 : 1954 SCR 565] this Court considered the scope of Article 227. It was held that the High Court has not only administrative superintendence over the subordinate courts and tribunals but it has also the power of judicial superintendence. The Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution. 62. In the light of the aforementioned Govind principle and Pepsi Foods principle, this Court deems it appropriate to make a parting observation that 4th and 3rd respondents in first and second Crl.O.Ps will do well to designate one or more Metropolitan Magistrate/s in Chennai for trying criminal cases related to elected M.Ps/M.L.As, in accordance with the directives of Hon ble Supreme Court in Ashwini Kumar Upadhyay case which is the basis f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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