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(iv) cases pending before the normal Sessions Courts cannot be transferred, except in accordance with the procedure prescribed by Section 407(3) of the Code of Criminal Procedure;
(v) the constitution of Special Court only for the trial of eight criminal complaints is violative of Articles 14 and 21 of the Constitution and the secular fabric of the democratic polity; and
(vi) the offences cannot be tried in Special Court constituted outside the places within whose territorial jurisdiction the offences were allegedly committed.
CONTENTION NO.(iv):
15. Coming to the fourth contention, the same revolves around the power of transfer under Section 407 of the Code of Criminal Procedure. Relying upon the decision of the Constitution Bench of the Supreme Court in A.R.Antulay v. R.S.Nayak [AIR 1988 SC 1531], it is contended by Mr.R.Sankarasubbu, learned counsel for the petitioner that even the High Court does not have the power to transfer a case either to a Special Court or to itself, de hors the provisions of Section 407.
16. But, I do not think that the reference to the decision in A.R.Antulay may be appropriate. In the said case, the trial was transferred to High Court itself, making the statutory remedy of appeal to the High Court, meaningless. Therefore, under extraordinary circumstances, the Supreme Court reviewed its own earlier order.
17. Even the reference to Section 407 of the Code, is not appropriate. Section 407 of the Code deals with the power of the High Court to transfer cases. We are not dealing here, with a case of transfer from one Court of Sessions to another under Section 407. We are now dealing with the validity of the constitution of the Special Court, which would be of the same status as the regular Court of Sessions, but would deal with these cases exclusively to ensure speedy trial. Today, several cases are transferred to Fast Track Courts. This is done in exercise of the powers conferred by Sections 407 and 408. They stand apart from cases where Special Courts are created under special enactments. As a matter of fact, Section 13(1) of the NIA Act, which defines the jurisdiction of Special Courts, begins with a non-obstante clause. It states that every scheduled offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed, notwithstanding anything contained in the Code. Therefore, Section 407 would have no application to the constitution of Special Courts under the NIA Act and the transfer of some cases to such Special Courts. Hence, I have no difficulty in rejecting even the fourth contention.
22. If a Special Court is constituted by the State Government under Section 22, all cases in respect of which Special Court is constituted, stand automatically transferred to the Special Court by virtue of Section 22(4). The moment transfer takes place, the territorial limits stipulated in the Code of Criminal Procedure, automatically vanish. If the argument of the petitioner is accepted, Sections 407 and 408 of the Code themselves are antithetic to Section 177 of the Code. Therefore, this argument is also rejected.