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In this Appeal we have not permitted parties to argue on merits. We have confined parties to the question whether the High Court would have power to transfer the case from one Judge of the Special Court to another. Mr. Chidambaram submits that the High Court has such a power under Section 407 of the Criminal Procedure Code. Section 407 Cr.P.C. reads as follows :
"407. Power of High Court to transfer cases and appeals.
- Whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto, or
(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 Court was subordinate to it.

Mr. Chidambaram submitted that the Special Court was a Criminal Court as envisaged by the Criminal Procedure Code and that provisions of the Criminal Procedure Code applied to it. In support of his contention Mr. Chidambaram referred to Section 4 of the Criminal Procedure Code. Under this Section all offences under the Indian Penal Code could be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code. He also referred to Section 6 of the Criminal Procedure Code, which provides that besides the High Courts and Courts constituted under any law, there would be in every State :- a) Courts of Session; (b) Judicial Magistrates of the first class and in any metropolitan area, Metropolitan Magistrates; (c) Judicial Magistrates of the second class and (d) Executive Magistrates.

(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."

Mr. Chidambaram submitted that Section 6 of the Special Courts Act provides that the Special Court shall take cognizance of or try such cases as are instituted before it or transferred to it hereinafter. He points out that the Section provides that all prosecutions in respect of offences referred to in Sub-section (2) of Section 3 of the Act are to be instituted in the Special Court and that if a prosecution was pending in any other court, it stood transferred to the Special Court. Mr. Chidambaram submitted that Section 9 clinches the matter in his favour. He submitted that Section 9 specifically provides that the provisions of the Criminal Procedure Code apply to the proceedings before the Special Court and that for the purposes of the proceedings the Special Court was a court of Sessions. He submitted that the Special Court, having been deemed to be a court of Sessions and being a criminal Court as envisaged under Section 6 of the Criminal Procedure Code, was subordinate to the High Court. He submitted that the Code of Criminal Procedure applied to all proceedings before the Special Court, unless they were inconsistent with the provisions of the Special Court. He submitted that in the Special Courts Act there was no provision inconsistent with Section 407 of the Criminal Procedure Code. He submitted that Section 407 of the Criminal Procedure Code applied and could be used by the High Court.

Mr. Malhotra further submitted that Section 9 of the Special Courts Act merely provided that Special Court would be deemed to be a Court of Session for the purposes of the proceedings before that Court. He submitted that for the purposes of criminal proceedings before it the Special Court may be deemed to be a Court of Session but that did not make it a Court subordinate to the High Court.

We have heard the parties. In our view the submissions of Mr. Chidambaram, that the Special Court is a Court subordinate to the High Court, cannot be accepted. The authorities in the case of "Re The Special Courts Bill, 1978", instead of supporting Mr. Chidambaram, is entirely against him. On a question from Court, it was fairly admitted by Mr. Chidambaram that in the entire judgment there was no reference to Section 407 of the Criminal Procedure Code. It is impossible to believe that seven eminent Judges of this Court were not aware or had lost sight of Section 407 of the Criminal Procedure Code. Many of those Special Courts were being established in Delhi. As pointed out by Mr. Chidambaram it was held that if there was no power to transfer then the Bill would be unconstitutional. Had those Courts were subordinate to the High Court Section 407 would have applied. Then the question of incorporating a provision of transfer would not have arisen. It is clear that the Court proceeded on the footing that Section 407 did not apply because the Special Courts were not subordinate to the High Court. That the Court 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 behalf also the following observations of Justice Chandrachud, made on behalf of majority, are very relevant :