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12. Shri K.K. Venugopal, learned senior counsel on behalf of Respondent Nos.4 and 5, has argued that the judgment dated 12th February, 2001 cannot be reopened at this stage as the Supreme Court has dismissed an appeal filed against it and has further dismissed a review petition and a curative petition. The CBI cannot be allowed to re-agitate what has been closed by the aforesaid judgment. Moreover, since the order dated 4th May, 2001 merely implements the judgment and order dated 12th February, 2001 and the impugned judgment upheld the said judgment dated 4th May, 2001, CBI’s appeal ought to be dismissed. Since the trial against the 8 accused is proceeding at Rae Bareilly, no question of a joint trial before the Special Court at Lucknow can arise at this stage in view of the final and binding decision of this Court dismissing the appeal against the judgment dated 12th February, 2001. According to learned senior counsel, Article 142 of the Constitution cannot be used by this Court to transfer proceedings against the aforesaid 8 accused persons from Rae Bareilly to Lucknow in view of the fact that the fundamental rights guaranteed to the aforesaid 8 accused persons under Article 21 of the Constitution would otherwise be infringed inasmuch as a right of appeal from the learned Magistrate, Rae Bareilly to the Sessions Court would be taken away. The learned senior counsel also referred to Section 407 (1) of the Cr.P.C. by which it was clear that an order of transfer from one Special Judge to another within the same State would be covered by the aforesaid provision and could only be done by the High Court of the concerned State in which both the lower Courts are situated. Since Article 142 cannot be used against substantive provisions of law, this would be a violation of Section 407 (1) which permits only the High Court to transfer such a case. The learned senior counsel referred to a number of judgments setting out that the powers of the Supreme Court under Article 142 cannot be used against a mandatory substantive provision of law.

23. In paragraph 34, Mukharji, J. stated that Sections 406 and 407 were covered by the non-obstante clause in Section 7(1). This would mean that the High Court under Section 407 could not transfer a case to itself as provided under Section 407(1). It is in this context that it is stated that the right of appeal to the High Court from the Special Court is taken away, violating the procedure established by law under Article 21. Also, for this reason, in paragraph 38 of the said judgment it is stated that the order of the Supreme Court transferring cases from the Special Judge to the High Court is not authorised by law. Also, the further right to move the High Court by way of revision or first appeal under Section 9 of the said Act was therefore taken away. In the present case, assuming that the High Court were to exercise the power of transfer under Section 407, the High Court could have transferred the case pending at Rae Bareilly and/or at Lucknow to itself under Section 407 (1) and (8). The absence of a non-obstante clause under Section 11(1) proviso of the Criminal Procedure Code thus makes it clear that Article 21 in the facts of the present case cannot be said to have been infringed, as even a transfer from a subordinate court to the High Court, which would undoubtedly take away the right of appeal, is itself envisaged as the ‘procedure established by law’ under Section 407 of the Criminal Procedure Code.

24. In the present case, the power of transfer is being exercised to transfer a case from one Special Judge to another Special Judge, and not to the High Court. The fact that one Special Judge happens to be a Magistrate, whereas the other Special Judge has committed the case to a Court of Sessions would not make any difference as, as has been stated hereinabove, even a right of appeal from a Magistrate to the Sessions Court, and from the Sessions Court to the High Court could be taken away under the procedure established by law, i.e., by virtue of Section 407 (1) and (8) if the case is required to be transferred from the Magistrate at Rae Bareilly to the High Court itself. Hence, under Section 407, even if 2 tiers of appeal are done away with, there is no infraction of Article 21 as such taking away of the right of appeal is expressly contemplated by Section 407(1)(iv) read with Section 407(8). In the circumstances, Antulay’s judgment which dealt with the right of a substantive appeal from a Special Judge to the High Court being taken away by an order of transfer contrary to the non obstante clause in Section 7(1) of the Criminal Law Amendment Act, 1952 would not apply in the facts and circumstances before us.

(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.”
26. According to Shri Venugopal, the Supreme Court’s power under Section 406 is circumscribed by transfer taking place only from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court. Clearly Section 406 does not apply to the facts of the present case as the transfer is from one Criminal Court to another Criminal Court, both subordinate to the same High Court. This being the case, nothing prevents us from utilizing our power under Article 142 to transfer a proceeding from one Criminal Court to another Criminal Court under the same High Court as Section 406 does not apply at all. Learned senior counsel went on to add that such a power is exercisable only under Section 407 by the High Court and not this Court.