Indian Kanoon - Search engine for Indian Law

21. Mr. Luthra, learned Senior Counsel for the Petitioners, has drawn attention to A.R. Antulay -vs- R.S. Nayak, AIR 1988 SC 1531 for two reasons. Firstly, because it has been enunciated therein by the Supreme Court that wherever a special Court has been created for the trial of offences by a special statute, they cannot be tried by any other even if it be a superior court. Their Lordships have observed - "The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal." We are unable to agree with Mr. Luthra that the Administrative Orders of this Court, or the Order of the Sessions Court, suffer from the vice of unauthorisedly eradicating the right to appeal. Since a Magistrate of the First Class is competent to try such offences only if it had been specially empowered to do so, these offences would normally be triable by the Court of Sessions. The situation is altogether dissimilar to that which existed in Antulay. The Legislature has bestowed and reposed the authority of special empowerment on the appropriate government, and not the Supreme Court which directed the High Court to assume jurisdiction. It has not been argued that this power of special empowerment by the Central Government cannot be withdrawn by it. If and when this event transpires, the Court must pass appropriate orders to give effect to WP(Crl.)312/2007 27 of 42 either or both actions. Ergo, the two impugned Orders do not stem from the Courts volition but rather are prompted by the purpose of implementing the decision of the appropriate government, and consequently removing the cases from a Court which had lost jurisdiction to one which always possessed it.

22. Reliance on Antulay has also been placed by Mr. Luthra to buttress his argument that, upon the transfer of the cases to the Court of Sessions, the Petitioners have lost one forum of appeal. In Antulay the Supreme Court ordered the trial to be conducted by a Bench of the Bombay High Court. It was in that context that their Lordships observed that "the appellant has a further right under Article 21 of the Constitution a right to trial by a Special Judge under section 7(1) of the 1952 Act which is the procedure established by law made by the Parliament, and a further right to move the High Court by way of revision or first appeal under section 9 of the said Act." This is not the situation before us. The answer to this vexed question, that is perceived loss of one appeal, can be found in the detailed Judgment of another Division Bench of this Court in Mahender Singh. Certain complaints had been filed by SEBI which, at that time, attracted a punishment which could not exceed one year term of imprisonment. By an amendment of the SEBI Act the maximum punishment was increased to ten years imprisonment, thereby necessitating a Sessions' trial. It was in this context that Antulay came to be WP(Crl.)312/2007 28 of 42 discussed in the Judgment authored by our learned Brother, A.K. Sikri, J.. As in the present case, if the trial had been conducted by an MM, an appeal would lie under Section 374(3)(c) of the CrPC to the Court of Sessions. It was held that the Petitioners did not have a vested right of appeal to the Court of Sessions since this right is granted by the statute itself. The Judgment further holds that the right of Revision had not been curtailed or affected in any manner. We are in respectful agreement with the Mahender Singh ratio and find that it applies to the case in hand. Reverting back to Section 13 of the OS Act, and reiterating our view, the intent of the enactment is that offences under the OS Act would normally be triable by the Court of Sessions. It cannot, therefore, be argued that the Petitioners have a vested right to appeal to the Court of Sessions. That right would exist only in these exceptional instances where the appropriate government had considered it expedient to specially empower an MM to try the offences under the OS Act. This argument is accordingly rejected.

23. Our attention has also been drawn by Mr. Luthra to the decision of Division Bench of this Court in A.S. Impex Ltd. -vs- Delhi High Court, 108(2003) DLT 559(DB). This Court had transferred complaints under Section 138 of the NI Act from the Court of the MM to the Court of the Additional Sessions Judge. The Division Bench held that since these offences were triable by the MM, the High Court was not possessed of powers to order that the trial be conducted by WP(Crl.)312/2007 29 of 42 the Court of Sessions. The ratio decideni is that "the High Court on the administrative side by invoking the provisions of Article 227 of the Constitution or for that matter Section 497 of the code could not have widened or expanded the powers beyond what is fixed under the Act." We humbly concur with this opinion which is exactly on the lines drawn in Antulay. However, as already analysed above, the wordings of the two provisions are not in pari materia. If the Legislature's intent was to vest jurisdiction only with the MM it could have unambiguously ordained that - "Offences under this Chapter shall be tried by the Court of the Metropolitan Magistrate." The Division Bench had specifically noticed Section 143 (introduced into the NI Act with effect from 6.2.2003) which simply speaks so. It needs to be clarified that the non-obstante clause in Section 142 is with prejudice to the CrPC, and not the rest of its provisions including sub-section(c). It seeks to allay doubts that despite the provisions of the CrPC which indicate that an offence punishable with imprisonment upto one year (which has been increased to two years by Act 5 of 2005) a Magistrate of the Second Class is competent to try the case, by virtue of Section 29(3) of the CrPC.