A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602

A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602

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HEADNOTE:

The appellant was the Chief Minister of Maharashtra between June 9, 1980 and January 12, 1982, when he resigned that office in deference to the judgment of High Court in a writ petition filed against him, but continued as an MLA. On August 9, 1982, respondent No. 1, a member of a political party filed a complaint before a Special Judge against the appellant and others for offences under ss. 161 and 165 of the Indian Penal Code and s. 5 of the Criminal Law Amendment Act, 1952 and also under ss. 384 and 420 read with ss. 109 and 120B of the Indian Penal Code. The Special Judge issued process to the appellant. Later, the Special Judge over-ruled the objection of the

appellant to take cognizance of the offences on a private complaint, and to issue process, in the absence of notification under s. 7(2) of the Criminal Law Amendment Act, 1952, specifying as to which of the three special Judges of the area should try such cases. Against this, the appellant filed a revision application in the High Court, which dismissed it subsequently. The appellant's Special Leave Petition against this was dismissed by the Supreme Court which held that the complaint filed by respondent No. 1 was clearly maintainable and cognizance was properly taken of it.During the pendency of the revision application in the High Court, the State Government notified the Special Judge to try the off-3 ences specified under s. 6(1) of the Act and appointed another Special Judge, who discharged the appellant, holding that a member of the Legislative Assembly was a public servant and there was no valid sanction for prosecuting the appellant. Against this order of discharge. respondent No. 1 filed a Criminal Revision Application in the High Court, which was subsequently withdrawn to this Court. On an appeal filed by respondent No. 1 directly under Article 136 of the Constitution against the order of discharge, the Supreme Court held on 16.2.1984, that a member of the Legislative Assembly was not a public servant, and set aside the order of the Special judge. The Court

observed that though nearly 2 1/2 years had rolled by since prosecution against the accused, who was Chief Minister of a State, was launched and his character and integrity came under cloud, the case had not moved an inch further and that an expeditious trial was primarily in the interest of the accused and mandate of Article 21. It further observed that expeditious disposal of a criminal case was in the interest

of both the prosecution and the accused. It, therefore, suo motu withdrew this special case and another one filed against the appellant by another person and transferred them to the High Court, with the request to the Chief Justice to assign these two cases to a sitting Judge of the High Court, who should proceed to expeditiously dispose of the cases, preferably by holding trial from day to day. Pursuant to the directions of this Court dated February 16, 1984 the Chief Justice of the High Court assigned the cases to one of the Judges of that Court. The appellant appeared before him and raised an objection that the case could be tried only by a Special Judge appointed by the Government under the 1952 Act. The Judge rejected this and

other objections holding that he was bound by the order of the Supreme Court. Special Leave Petitions as well as a writ petition filed by the appellant against the aforesaid decision were dismissed by this Court on April 17, 1984, holding that the Judge was perfectly justified, and indeed it was his duty to follow the decision of this Court which was binding on him. It also observed that the writ petition challenging the validity of the order and judgment of this Court as nullity or otherwise could not be entertained, and that the dismissal of the writ petition would not prejudice the petitioner's right to approach this Court, with an appropriate review petition or any other application, which he may be entitled to in law.

4 Thereafter, the cases were transferred to another Special Judge, who framed 21 charges and declined to frame 22 other charges proposed by respondent No. 1. This Court allowed respondent No.1`s appeal by special leave except in regard to three draft charges under s. 384 IPC, and requested the High Court to nominate another Judge to try the cases. The Judge, to whom the cases were transferred, framed 79 charges against the appellant, and refused to proceed against the other named conspirators. Against the aforesaid order, the appellant filed a Special Leave Petition before this Court questioning the jurisdiction of the Special Judge to try the case in violation of the appellant's fundamental rights conferred by Articles 14 and 21 and the provisions of the Criminal Law Amendment Act of 1952. The appellant also filed a Special

Leave Petition against the decision of the Judge, holding that none of the 79 charges framed against the accused required sanction under s. 197(1) of the Cr. P.C., and a writ petition challenging a portion of s. 197(1) as ultra vires Articles 14 and 21 of the Constitution. This Court granted special leave in the Special Leave Petition questioning the jurisdiction of the Special Judge to trythe case and stayed further proceedings in the High Court. It also issued notice in the other Special Leave Petition and the writ petition, and directed these to be tagged on to the appeal. An application filed by respondent No. 1 for revocation of the Special Leave was dismissed and the appeal was referred to a Bench of seven Judges. The other Special Leave Petition and the writ petition were delinked, to be heard after the disposal of the appeal. In the appeal, two questions arose, namely, (1) whether the directions given by this Court on 16th February, 1984, withdrawing the special cases pending in the Court of Special Judge and transferring the same to the High Court with the request to the Chief Justice to assign these cases to a sitting Judge of that High Court in breach of s. 7(1) of the Criminal Law Amendment Act, 1952 which mandated that the offences, as in this case, should be tried only by a Special Judge, thereby denying at least one right of appeal to the appellant was violative of Articles 14 and 21 of the Constitution and whether such direction were at all valid or legal and (2) if such directions were not at all valid or legal in view of the Court's order of April 17, 1984, whether the present 5 appeal was sustainable or the grounds therein justiciable in these proceedings. In other words, whether the said directions in a proceeding inter parties were binding even if bad in law or violative of Articles 14 and 21 of the Constitution and as such, immune from correction by this Court even though they caused prejudice and injury. Allowing the appeal, and setting aside and quashing all the proceedings subsequent to the directions of the Court on 16.2.1984 and directing that the trial should proceed in accordance with law, i.e. Criminal Law Amendment Act, 1952.

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