A.R. ANTULAY versus R.S. NAYAK & ANR.

2. I have had the opportunity, and the benefit, of reading in draft the learned and instructive opinions of my learned Brothers Sabyasachi Mukharji J., and Ranganath Misra J. They have, though for slightly differing reasons, proposed to accept the appeal. This will have the effect of setting-aside five successive earlier orders of d!ffe- rent benches of the Court made at different stages of the criminal prosecution, including the three judgments of Benches of five Judges of this Court in R.S. Nayak v. A.R. Antulay, (1984) 2 SCR 495 and D A.R. Antulay v. R.S. Nayak, (1984) 2 SCR 914 and R.S. Nayak v. A.R. Antulay, [ 1984) 3 SCR 412. I have bestowed a respectful and anxious consideration to the weighty opinion of my brothers with utmost respect, I regret to have to deny myself the honour of agreeing with them in the view they take both of the problem and the solution that has commended itself to them. Apart from other things, how can the effect and finality of this Court's Order dated 17.4.1984 in Writ Petition No. 708 of 1984 be unsettled in these proceedings? Admittedly, this order was made after hearing and does not share the alleged vitiating factors attributed to the order dated 16.2.1984. That order concludes everything necessarily inconsistent with it. In all humility, !..venture to say that the proposed remedy and the procedure for its grant are fraught with far greater dangers than the supposed injustice they seek to relieve: and would throw open an unprecedented procedural flood-gate which might, quite ironically, enable a repetitive challenge to the present decision itself on the very grounds on which the relief is held permissible in the appeal. To seek to be wiser than the law, it is·said, is the very thing by good laws forbidden. Well trodden path is the best path. Ranganath Misra J. if I may say so with respect, has rightly recognised these imperatives: "It is time to sound 'a note of caution. This Court A.R. ANTULAY v. R.S. NAYAK [VENKATACHAL!AH, J.] under its rules of business ordinarily sits in divisions and not as a whole one. Each Bench, whether small or large, exercises the powers vested in the Court and decisions rendered by the Benches irrespective of their size are con- sidered as decisions of the Court. The practice has deve- loped that a larger bench is entitled to over-rule the deci- sion of a small bench notwithstanding the fact that each of · the decisions is that of the Court. That principle, however, would not apply in the present situation and since we are sitting as a Bench of Seven we are not entitled to reverse the decision of the Constitution Bench." Learned brother, however, hopes this case to be more an excep- tion than the Rule: "Finality of the orders is the rule. By our directing recall of an order the well-settled propositions of law would not be set at naught. Such a situation may not recur in the ordi- nary course of judicial functioning and if there be one, certainly the bench before which it comes would appro- priately deal with it."

3. A brief advertence to certain antecedent events which consti- tute the back-drop for the proper perception of the core-issue arising in this appeal may not be out of place: Appellant was· the ·Chief Minister of Maharashtra between 9.6.1980 and 12.1.1982 on which latter date he resigned as a result of certain adverse findings made against him in a Court proceeding. On 9.8.1982; Ramdas Srinivas Nayak, respondent No. 1, with the sanction of the Governor of Maharashtra, accorded on 28. 7 .1982, filed in the Court of Special-Judge, Bombay, a criminal Case No. 24 of 1982 alleg- ing against the appellant certain offences under Section ·161 and 165 of Indian Penal Code and Section 6 of the Prevention of Corruption Act, 1947, of which the Special-Judge took cognisance. c Appellant questioned the jurisdiction of Special Judge to take G cognisance of those offences on a private compiaint. On 20.10.1982, the Special Judge over-ruled the objection. On 7.3.1983, the High Court dismissed appellant's revision petition in.which the order of the Special Judge was assaHed. The criminal case thereafter stood trans- ferred to another Special Judge, Shri R.B. Sule. Appellant did not, accept the order of the High Court dlited 7.3 .1983 against which he ff came up ln appeal to this court, by Special-leave, in Criminal appeal No. 347 of 1983. During the pendency of this appeal, however, another important event occurred. The Special Judge, Shri R.B. Sule, by his order dated 25.7.1983, discharged the appellant, holding that, the prosecution was not maintainable without the sanction of the Maharashtra Legislative Assembly, of which the appellant continued to be a member, notwithstanding his ceasing to be Chief Minister. Respondent No. 1 challenged this order of discharge in a Criminal Revision Petition No. 354 of 1982 before the High Court of Bombay. Respondent No. 1 also sought, and was granted, special-leave to appeal against Judge Sule's order directly to this court in Criminal appeal No. 356 of 1983. This Court also withdrew to itself the ,said criminal revision application No. 354 of 1982 pending before the High Court. All the three matters-the two appeals (Cr!. A. 347 of 1983 and 356 of 1983) and Criminal Revision Petition so withdrawn to this Court-were heard by a five Judge bench and disposed of by two separate Judgments dated 16.2.1984. By Judgment in Cr!. appeal N9. 356 of 1983 R.S. Nayak v. A.R. Antulay, [1984] 2 SCR 495 this Court, while setting aside the view of the Special Judge that sanction of the Legislative Assembly was neces- sary, further directed the trial of the case by a Judge of the Bombay , High Court. This Court observed that despite lapse of several years after commencement of the prosecution the case had "not moved an E inch further", that "expeditious trial is primarily necessary in the in- terest of the accused and mandate of Article 21", and that "therefore Special case No. 24 of 1982 and Special Case No. 3 of 1983 pending in the Court of Special Ju'dge, Greater Bombay, Shri R.B. Suie" be withdrawn and transferred to the High Court of Bombay, with a re- quest to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court. The Judge so designated was also directed to dispose of ihe case expeditiously, preferably "by holding the trial from day-to-day". Appellant, in these proceedings, does not assail the correctness of the view taken by the 5 Judge Bench on the question of the sanction. Appellant has confined his challenge to what he calls the constitutional infirmity-and the consequent nullity-of the directions given as to the transfer of the case to a Judge of the High Court. In effctuation of the directions dated 16.2.1984 of this Court the trial went on before three successive learned Judges of the High Court. It is not necessary here to advert to the reasons for the change of A.R. ANTULAY v. R.S. NAYAK {VENKATACHALIAH, J.] Judges. It is, however, relevant to mention that when the matter was before Khatri J. who was the first teamed Judge to be designated by the Chief Justice on the High Court, the appellant challenged his jurisdiction, on grounds which amounted to a challenge to the validity of directions of this Court .for the transfer of the case. Khatri J. quite obviously, felt bound to repel the challenge to his jurisdiction. Learned Judge said appellant's remedy, if any was to seek a review of the directions dated 16.2.1984 at the hands of this Court. Learned Judge also pointed out in his order dated 14.3.1984 what, according to him, was the true legal position permitting the transfer of the case from the Special-Judge to be tried by the High Court in exercise of its extra-ordinary original criminal jurisdiction. In his order dated 16.3.1984, Khatri J. observed: " ……. Normally it is the exclusive jurisdiction of a Special Judge alone to try corruption charges. This position flows from Section 7 of the 1952 Act. However, this does not mean that under no circumstances whatever, can trial of such offences be not tried by a Court of superior jurisdic- tion than the Special Judge. I have no hesitation in contem- plating at three situations in which a Court of Superior jurisdiction could try such offence …… " "8. The third situation can be contemplated under the Code of Criminal· Procedure itself where a Court of superior jurisdiction may have to try the special cases. Admittedly, there are no special provisions in the 1952 Act or 1947 Act relating to the transfer of special cases from · one Court to the other. So by virtue of the combined opera- tion of Sec. 8(3) of the 1952 Act and Section 4(2) of the Code of Criminal Procedure, the High Court will have jurisdiction under Sec 407 of the Code in relation to the special cases also. An examination of the provisions of Sec- tion 407 leaves no doubt that where the requisite conditions are fulfilled, the High Court will be within its legitimate powers to direct that a special case be transferred to and tried before itself." Appellant did not seek any review of the directions at the hands of the Bench which had issued them, but moved in this Court a Writ Petition No. 708 of 1984 under Article 32 of the Constitution assailing c the view taken by Khatri J. as to jurisdiction which in substance meant [ 1988] Supp. 1 S.C.R. a challenge to the original order dated 16.2.1984 made by this court. A A division Bench consisting of D.A. Desai and A.N. Sen, JJ. di~missed the writ petition on 17.4.1984. Sen, J. speaking for the bench said: c "In my view, the writ petition challenging the validity of the order and judgment passed by this Court as nullity or otherwise is incorrect, cannot be entertained. I wish to make it clear that the dismissal of this writ petition will not prejudice the right of the petitioner to approach the Court with an appropriate review petition or to file any other application which he may be entitled in law to file." (emphasis supplied) [A.R. Antulayv. Union, [1984] 3 SCR482] This order has become final. Even then no review was sought. It is also relevant to refer here to another pro,nouncement of a D five Judge bench of this Court dated 5.4.1984 in R.S. Nayak v. A.R. Antulay, [1984] 3 SCR 412 in Criminal misc. petition No. 1740 of 1984 disposing of a prayer for issue of certain directions as to the procedure to be followed before the designated Judge of the High Court. The bench referred to the provisions of law, which according to it, enabled the transfer bt the trial of the criminal case to the High Court. The view taken by my two learned. Brothers, it is needless to emphasise, has the effect of setting at naught this pronouncement of the five Judge Bench as well. The five Judge bench considered the legal foundations of the power to transfer and said: " ………… To be precise, the learned Judge has to try the case according to the procedure prescribed for cases instituted otherwise than on police report by Magis- trate. This position is clearly an unambiguous in vie.v of the fact that this Court while allowing the appeal was hearing amongst others Transferred case No. 347 of 1983 being the Criminal Revision Application No. 354 of 1983 on the file of the High Court of the Judicature at Bombay against the order of the learned Special Judge, Shri R.B. Sule dis- charging the accused. If the criminal revision application was not withdrawn to this Court, the High Court while hearing criminal revision application could have under sec. 407(8), Code of Criminal Procedure, 1973, would have to follow the same procedure which the Court of Special A.R. ANTULAY v. R.S. NAYAK !VENKATACHALIAH, J.) Judge would have followed if the case would not have been so transferred ….. " (emphasis supplied) According to the Bench, the High Court's power under Section 407, Criminal Procedure Code for withdrawing to itself the case from a Special Judge, who was, for this purpose, a Sessions Judge, was pre- served notwithstanding the exclusivity of the jurisdidion of the Special Judge and that the Supreme Court was entitled to and did exercise that power as the Criminal Review application pending in the High Court had been withdrawn to the Supreme Court. The·main basis of appel- lant's case is that all this is per-incurriam, without jurisdiction and a nullity. In the meanwhile Mehta J. was nominated by the Chief Justice of the High Court in place of Khatri. J. In addition to the 17 witnesses already examined by Khatri J. 41 more witnesses were examined for the prosecution before Mehta J. of the 43 charges which the prosecu- tion required to be framed in the case, Mehta J. declined to frame charges in respect of 22 and discharged the appellant of those alleged offences. Again respondent No. 1 came up to this Court which by its order dated 17.4.1986 in Criminal Appeal No. 658 of 1985, [reported in (1985) 2 sec 716] set aside the order of discharge in regard to 22 offences and directed that charges be drawn in respect of them. This Court also suggested that another Judge be nominated to take up the case. It is, thus, that Shah J came to conduct the further trial.

4. I may now tum to the occasion for the present appeal. In the further proceedings before Shah J. the -appellant contended that some c of the alleged co-conspirators, some of whom had already been examined as prosecution witnesses, and some others proposed to be so p examined should also be included in the array of accused persons. This prayer, Shah J had no hesitation to reject. It is against this order dated 24.7.1986 that the present appeal has come up. With this appeal as an opening, appellant has raised directions of the five Judges Bench, on 16.2.1984; of the serious violations of his constitutional-rights; of a hostile discrimination of having to face a trial before a Judge of the High Court instead of the Special-Judge, etc. A Division Bench con- sisting of E.S. Venkataramiah and Sabyasachi Mukharji JJ. in view of the seriousness of the grievances aired in the appeal, referred it to be heard by a bench of seven Judges.

5. The actual decision of Shah J in the appeal declining to pro- I 1988] Supp. 1 S.C.R. A ceed against the alleged co-conspirators is in a short compass. But the appeal itself, has assumed a dimension far beyond the scope of the order it seeks to be an appeal against. The appeal has become signifi- cant not for its pale determined by the order under appeal; but more for the collateral questions for which it has served as a spring board in this Court. c

6. Before going into these challenges, it is necessary to say something on the merits of the order under appeal itself. An accused person cannot assert any right to a joint trial with his co-accused. Normally it is the right of the prosecution to decide whom it prose- cutes. It can decline to array a person as a co-accused and, instead, examine him as a witness for the prosecution. What weight is to be attached to that evidence, as it may smack of the testimony of a guilty partner, in crime, is a different matter. Prosecution can enter Nolle proseque against any accused-person. It can seek to withdraw a charge against an accused person. These propositions are too well settled to require any further elaboration. Suffice it to say that the matter is D cooicluded by the pronouncement of this Court in Choraria v. Mahara~htra, I 1968] 2 SCR 624 where Hidayathullah J referred to the argument that the accomplice, a certain Ethyl Wong in that case, had also to be arrayed as an accused and repelled it, observing: " ….. Mr. Jethmalani's argument that the Magis- trate.should have promptly put her in the dock because of her incriminating answers overlooks S. 132 (proviso)". " ….. The prosecution was not bound to prosecute her, if they thought that her ev"dence was necessary to break a smugglers' ring. Ethyl Wong was prosecuted by S. 132 (proviso) of the Indian Evidence Act even if she gave evidence incriminating herself. She was a competent wit- ness although her evidence could only be received with the caution necessary in all accomplice evidence …… " On this point, really, appellant cannot be heard to complain. Of the so called co-conspirators some have been examined already as prosecution witnesses; some others proposed to be so examined; and two others, it would appear, had died in t!ie interregnum. The appeal on the point has no substance and would require to be dismissed. We must now turn to the larger issue raised in the ap~eal.

7. While Shri P.P. Rao, learned Senior Counsel far the appel- – A.R. ANTULAY v. R.S. NAYAK [VENKATACHALIAH, J.]. ]ant, handling an otherwise delicate and sensitive issue, deployed all t,, ! Žal tools that a first rate legal-smithy could design, Shri Ram Je, ,,d]ani, learned Senior Counsel, however, pointed out the impermissibility both as a matter of law and propriety of a different bench embarking upon the present exercise which, in effect, meant the exertion of an appellate and superior jurisdiction over the earlier five Judge Bench and the precedential problems and anomalies such a course would create for the future.

8. The contentions raised and urged by Shri P .P, Rao admit of being summarised and formulated thus: (a) That Supreme Court has, and can, exercise only such jurisdiction as is invested in it by the Constitution and the C laws; that even the power under Article 142(1) is not unfet­ tered, but is confined within the ambit of the jurisdiction otherwise available to it; that the Supreme Court, like any other court, cannot make any order that violates the law; that Section 7(1) of the Criminal Law (Amendment) Act, D 1952, (1952 Act) envisages and sets-up a special and exclu­ sive forum for trial of certain offences; that the direction for trial of those offences by a Judge of the High Court is wholly without jurisdiction and void; and that 'Nullity' of the order could be set up and raised whenever and where- ver the order is sought to be enforced or effectuated; (b) That in directing a Judge of the High Court to try the case the Supreme Court virtually sought to create a new jurisdiction and a new forum not existent in and recognised by law and has, accordingly, usurped Legislative powers, violating the basic tenets of the doctrine of separation of powers;. ( c) That by being singled out for trial by the High Court, appellant is exposed to a hostile discrimination, violative of his fundamental rights under Articles 14 and 21 and if the principles in State of West Bengal v. Anwar Ali Sarkar, [1952] SCR 284. The law applicable to Anwar Ali Sarckr should equally apply to Abdul Rahman Antulay. ( d) That the directions for transfer were issued with om affording an opportunity to the appellant of being hearž and therefore void as violative of Rules of Natural Justice. c ( e) That the transfer of the case to the High Court deprived appellant of an appeal, as of right, to the High Court. At least one appeal, as of right is the minimal con- stitutional safeguard. (f) That any order iqcluding a judicial order, even if it be of the highest Court, which violates the fundamental rights of a person is a nullity and can be assailed by a petition under Article 32 of the Constitution on the principles laid down in Prem Chand Garg v. Excise Commissioner, UP., (g) That, at all events, the order dated 16.2.1984 in so far as the impugned direction is concerned, is per incuriam passed ignoring the express statutory provisions of Section 7(1) of Criminal Law (Amendment) Act, 1952, and the earlier decision of this Court in Gurucharan Das Chadha·v. State of Rajasthan, [1966] 2 SCR 678. (h) That the direction for transfer of the case is a clear and manife,t case of mistake committed by the Court and that when a person is pr~judiced by a mistake of Court it is the duty of the Court to correct its own mistake: Actus Curiae N ominem Gravabit.

9. Courts are as much human institutions as any other and share all human susceptibilities to error. Justice Jackso~ said: " …….. Whenever decisions of one Court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court a substantial proportion of our reversals of state Courts would also be reversed. We are not final because we are infallible, but we are infallible only because we· are final." (See Brown v. Allen, [1944] US 443 at 540. In Broom v. Cassel, [1972] AC 1027 (at 1131}Lord Diplock said: A.R. ANTULAY 1•. R.S. NAYAK IVENKATACHALIAH, J.] JO] " …… It is inevitable in a hierarchical system of, .courts that there are decisions of the supreme appellate tribunal which do not attract the unanimous approval of all mem- bers of the judiciary. When I sat in Court of Appeal I sometimes thought the House of Lords was wrong in over ruling me. Even since that time there have been occasions, of which the instant appeal itself is one, when, alone or in company, I have dissented from a decision of the majority of this House. But thejudicial system only works if someone is allowed to have the last word and if that last word, once spoken, is loyally accepted." Judge Learned Hand, referred to as one of the most profound legal minds in the jurisprudence of the English speaking world, com- mended the Cromwellian intellectual humility and desired that these words of Cromwell be written over the portals of every church, over court house and at every cross road in the nation: "! beseech ye ………………….. think that ye may be mistaken." c As a learned author said, while infallibility is an unrealisable ideal, "correctness", is often a matter of opinion. An erroneous deci- sion must be as binding as a correct one. It would be an unattainable ideal to require the binding effect of a judgment to defend on its being correct in the absolute, for the test <If correctness would be resort to another Court the infallibility of which is, again subject to a similar further investigation. No self-respecting Judge would wish to act if he did so at the risk of being called a usurper whenever he failed to anticipate and predict what another Judge thought of his conclusions. Even infallibility would not protect him he would need the gift of prophecy-ability to anticipate the fallibilities of others as well. A proper perception of means and ends of the judicial process, that in the interest of finality it is inevitable to make some compromise bet- ween its ambitions of ideal justice in absolute terms and its limitations.

10. Re: Contentions (a) ar.d (b): In the course of arguments we were treated to a wide ranging, and no less interesting, submissions on the concept of "jurisdiction" and "nullity" in relation to judicial orders. Appellant cont~nds that the earlier bench had no jurisdictioi\' to issue the impugned directions which were without any visible legal support, that they are 'void' as violative of the constitutional-rights.of ~ the appellant, and, also as violating the Rules of natural justice. Notwithstanding these appeal to high-sounding and emotive appellate- ous; I have serious reservations about both the permissibility-in these 11988] Supp. 1 S.C.R. A proceedings-of an examination of the merits of these challenges. Shri Rao's appeal to the principle of "nullity" and reliance on a collateral challenge in aid thereof suffers from a basic fallacy as to the very concept of the jurisdiction of superior courts. In relation to the powers of superior courts, the familiar distinction between jurisdictional issues and adjudicatory issues-appropriate to Tribunals of limited jurisdiction,-has no place. Before a superior court there is no distinc- tion in the quality of the decision-making-process respecting jurisdic- tional questions on the one hand and ad judicatory issues or issues pertaining to the merits, on the other. c

11. The expression "jurisdiction" or the power to determine is, it is said, a verbal cast of many colours. In the case of a Tribunal, an error of law might become not merely an error in jurisdiction but might partake of the character of an error of jurisdiction. But, otherwise, jurisdiction is a 'legal shelter'-a power to bind despite a possible error in the decision. The existence of jurisdiction does not depend on the correctness of its exercise. The authority to decide O embodies a privilege to bind despite error, a privilege which is inherent in and indispensable to every judicial function. The charac- teristic attribute of a judicial act is that it binds whether it be right or it be wrong. In Malkarjun v. Narahari, 11900] 27 I.A. 216 the executing Court had quite wrongly, held that a particular person represented the \J estate of the deceased Judgment-debtor and put the property for sale in execution. The judicial committee said: "In doing so, the Court was exercising its jurisdiction. It made a sad mistake, it is true; but a court has jurisdiction to decide wrong as efe!l as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right and if that course is not taken the decision, however wrong, caunot be disturbed." In the course of the arguments there were references to the Anisminic case. In my view, reliance on the Anisminic principle is wholly misplaced in this case. That case related to the powers of Tri- bunals of limited jurisdiction. It would be a mistake of first magnitude to import these inhibitions as to jurisdiction into the concept of the jurisdiction of superior courts. A finding of a superior court even on a question of its own jurisdiction, however grossly erroneous it may, otherwise be, is not a nullity; nor one which could at all be said to have been reached without jurisdiction, susceptible to be ignored or to H admit of any collateral-attack. Otherwise, the adjudications of A.R. ANTULAY v. R.S. NAYAK [VENKATACHALIAH, J.] !03 superior courts would be held-up to ridicule and the remedies gener- ally arising from and considered concomitants of such classification of judicial-errors would be So seriously abused and expanded as to make a mockery of those foundational principles essential to the stability of administration of justice. The superior court has jurisdiction to determine its own jurisdic- .s tion and an error in that determination does not make it an error of jurisdiction. Holdsworth (History of English Law vol. 6 page 239) refers ' to the theoritical possibility of a judgment of a superior' court being a nullity if it had acted coram-non-judice. But who will decide that ques- tion if the infirmity stems from an act of the Highest Court in the land? It was observed: " … It follows that a superior court has jurisdiction to determine its own jurisdiction; and that therefore an erroneous conclusion as to the ambit of its jurisdiction is merely an abuse of its jurisdiction, and not an act outside c its jurisdiction …… " " … In the second place, it is grounded upon tile fact that, while the judges of the superior courts are answerable only to God and the king, the judges of the inferior courts are answerable to the superior courts for any excess of jurisdiction … " 'Theoritically the judge of a superior court might be liable if he acted coram non judice; but there is no legal tribunal to enforce that liability. Thus both lines of reason- ing led to the same conclusion-the total immunity of the judges of the superi<?f courts." Rubinstein in his "Jurisdiction and Illegality" says: " …. In practice, every act made by a superior court is always deemed valid (though, possibly, voidable) where- ver it is relied upon. This exclusion from the rules of vali- dity is indispensable. Superior courts knew the final arbiters of the validity of acts done by other bodies; their \)wn deci- sions must be immune from collateral attack unless confu- sion is to reign. The superior courts decisions lay down the rules of validity but are not governed by these rules." (See P. 12) c 11988] Supp. 1 S.C.R. A clear reference to inappositeness and limitations of the Anisminic Rule in relation to Superior Court so to be found in the opinion of Lord Diplock in Re Racal Communications Ltd. 11980 2 All E.R. 634], thus: "There is in my view, however, also an obvious dis- tinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined ques- tion finally and conclusively oi unappealably, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity. The High Court is not a court of limited jurisdiction and its constitutional role indudes the interpretation of written laws. There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court act- ing in his judicial capacity to be entitled and, indeed, re- quired to construe the words of the statute by which the question submitted to his decision was defined. There is simply no room for error going to his jurisdiction, or as is conceded by counsel for the respondent, is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their judicial capacity as such can be corrected only by means of appeal to an appellate court and if, as in the instant case, the statute provides that the judge's deci- sion shall not be appealable, they cannot be corrected at all." !See page 639 & 640]. In the same case, Lord Salmon, said: "The Court of Appeal, however, relied strongly on the decision of your Lordship's House in Anisminic Ltd. v. Foreign Compensation Commission, 11969) l All ER 209. That decision however was not, in my respectful view in any way relevant to the present appeal. It has no applica- tion to any decision or order made at first instance in the High Court of Justice. It is confined to decisions made by commissioners, tribunals or inferior courts which can now be reviewed by the High Court of Justice, just as the deci- sion of inferior courts used to be reviewed by the old Court of King's Bench under the prerogative writs. If and when A.R. ANTULAY 1·. R.S. Ni\Yi\K IVENK/\TACHALIAH, .I.I any such review is made hy. the High Court, it cm1 he appealed to the Court of Appeal and hence, by IC'\VC, to your Lordship's House. [See page 641]. Again in Issac v. Robertson, [1984] 3 All E.R. 140 the Privy Council reiterated the fallacy of speaking in the language of Nullity, void, etc., in relation to Judgments of superior courts. It was pointed H out that it could only be called 'irregular'. Lord Diplock observed: "Their Lordships would, however, take this opportunity to point out that in relation to orders of a court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that arc 'void' in the sense that they can be ignored with impunity by those persons to whom they are ·C addressed, and orders that are 'voidable' and may be enforced unless and until they are set aside. Dicta that refers to the possibility of these being such a distinction between orders to which the description 'void' and 'void- able' respectively have been applied can be found in the opinion given by the judicial committee of the Privy Council in Marsh v. Marsh, [ 1945] AC 271 at 284 and Max- foy v. United Africa Co. Ltd., [1961] All EWR 1169. [1962] AC 152, but in neither of those appeals nor in any other case to which counsel has been able to refer their Lordships has any order of a court of unlimited jurisdiction been held to fall in a category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceeding to have them set aside. The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind ….. " f' "The contrasting legal concepts of voidness nnd voi- dability form part of the English Law of contract. They are inapplicable to orders made by a court of unlimited jurisd- iction in the course of contentious litigation. Such an order is either irregular or regular. If it is irrcgu lar it can be set aside by the court that made it on application to that court: if it is regular it can only be set aside by an appellate court on appeal if there is one to which an appeal lies. "[Sec page 143] Superior courts apart, even the ordinary civil conrts of the land c 11988] Supp. 1 S.C.R. have jurisdiction to decide questions of their own jurisdiction. This Court, in the context of the question whether the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, w·as not attracted t() the premises in question and whether, conse- quently, the exclusion under Section 28 of that Act, of the jurisdiction of all courts other than the Court of Small Causes in Greater Bombay did not operate, observed: " ….. The crucial point, therefore, in order to de- termine the C! uestion of the jurisdiction of the City Civil Court to entertain the suit, is to ascertain whether, in view of Section 4 of the Act, the Act applies to the premises at all. If it does, the City Civil Court has no jurisdiction but if it does not then it has such jurisdiction. The question at once arises as to who is to decide this point in controversy. · It is well settled that a Civil Court has inherent power to decide the question of its own jurisdiction, although, as a result of its enquiry, it may turn out that it has no jurisdic- tion over the suit. Accordingly, we think, in agreement with High Court that this preliminary objection is not well founded in principle or on authority and should be re jec- ted." !See AIR 1953 (SC) 16 at 19. Bhatia Co-operative Housing Society Ltd. v. D.C. Patell It would, in my opinion, be wholly erroneous to characterise the directions issued by the five Judge bench as a nullity,.amenable to be ignored or so declared in a collateral attack.

12. A judgment, inter-parties, is final and concludes the parties. In Re Hastings (No. 3) 11959] 1 All ER 698, the question arose whether despite the refusal of a writ of Habeas Corpus by a Divisional Court of..4he Queen's bench, the petitioner had, yet, a right to apply for the writ in the Chancery Division. Harman J. called the supposed , right an illusion: "Counsel for the applicant, for whose argument I for one am much indebted, said that the clou oi his case as this, that there still was this right to go from Judge to Judge, and that if that were not so the whole structure would come to the ground …. " "I think that the Judgment of the Queen's bench Divisional Court did make it clear that this supposed right -t A.R. ANTULAY v. R.S. NAYAK [VENKATACHALIAH, J.] was an illusion. If that be right, the rest follows. Ni:J body doubts that there was a right to go from court to court; as my Lord has already explained. There are no different courts now to go to. The courts that used to sit in bane have been swept away and their places taken by Divisional Courts, which are entirely the creatures of statute and rule. Applications for a writ of habeas corpus are assigned by the rule to Divisional Courts of the Queen's Bench Division, and that is the only place to which a applicant may go …… "[See page 701] . In Daryao v. State of U.P., 11962] 1SCR574 it w11s held: "It is in the interest of the public at large th&t a final- ity should attach to the binding decisions .pronounced by courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res-judicata they D · cannot be treated as irrelevant or inadmissible. even in de'!l- ing with fundamental rights in petitions filed under Article 32". [See page 5831. In Trilok Chand v. H.B. Munshi, I 1969] 2 SCR 824 Bachawat J. recognised the same limitations even in matter pertaining to the con- ferment of fundamental rights. " …. The right to move this Court for enforcement of fundamental rights is guaranteed by Article 32. The writ under Article 32 issues as a matter of course if a breach of a fundamental right is established. But this does not mean that in giving relief under Article 32 the Court must ignore and trample under foot all laws of procedure, evidence, limitation, res judicata and the like …. " " …. the object of the statutes of limitation was to give effect to the maxim 'interest reipublicae ut sit finis G litium' (Cop Litt 303)-the interest of the State requires that there should be a limit to litigation. The rule of res judicata is founded upon the same rule of public policy …… "!See page 842 and 8431 It is to be recalled that an earlier petition, W.P. No. 708 of 1984 [1988] Supp. I S.C.R. A under Article 32 moved before this Court had been dismissed, reserv- ing leave to the appellant to seek review. c · The words of Venkataramiah J in Sheonandan Paswan v. State of Bihar, [ 1987] 1 SCC 288 at 343 are apt and are attracted to the present case: "The reversal of the earlier judgment of this court by this process strikes at the finality of judgments of this Court and would amount to the abuse of the power of review vested in this Court, particularly in a criminal case. It may be noted that no other court in the country has been given the power of review in criminal cases. I am of the view that the majority judgment of Baharul Islam and R.B. Misra, JJ. should remain undisturbed. This case cannot be converted into an appeal against the earlier decision of this Court." (Emphasis supplied)

13. The exclusiveness of jurisdiction of the special judge under Section 7(1) of 1952 Act, in turn, depends on the construction to be placed on the relevant statutory-provision. If on such a construction, howev_er erroneous it may be, the court holds that the operation of Sec. 407, Cr.P.C. is not excluded. that interpretation will denude the plenitude of the exclusivity claimed for the forum. To say that the E court usurped legislative powers and created a new jurisdiction and a new forum ignores the basic concept of functioning of courts. The power t.o interpret laws is the domain and function of courts. Even in regard to the country's fundamental-law as a Chief Justice of the Supreme Court of the United States said: "but the Constitution is what the judges say it is". In Thomas v. Collins, 323 ( 1945) US 516 it was F said: "The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always is, delicate …. " I am afraid appellant does himself no service by resting his case on these high conceptual fundamentals.

14. The pronou.ncements of every Division-Bench of this Court are pronouncements of the Court itself. A larger bench, merely on the H strength of its numbers, cannot un-do the finality of the decisions of A.R: ANTULAY v. R.S.-NAYAK [VENKATACHALIAH, J.] other division benches. If the decision suffers from an error the only way to correct it, is to go in Review under Article 137 read with Order A 40 Rule I framed under Article 145 before "as far as is practicable" the same judges. This is not a matter merely of some dispensable pro- cedural 'form' but the requirement of substance. The reported deci- sions on the review power under the Civil Procedure Code when it had a similar provision for the same judges hearing the matter demonstrate the high purpose sought io be served thereby.·

15. In regard to the concept of Collateral Attack on Judicial Proceedings it is instructive to recall some observations of Van Fleet on the limitations-and their desirability-on such actions. "One who does not understand the theory of a science, who has no clear conception of its principles, cannot apply it with certainty to the problems; it is adapted to solve. In order to understand the principles which govern in deter- mining the validity of RIGHTS AND TITLES depending upon the proceedings of judicial tribunals, generally called the doctrine of COLLATERAL ATTACK ON JUDG- MENTS, it is necessary to have a clear conception of the THEORY OF JUDICIAL PROCEEDINGS ….. " " – – – __ And as no one would think of holding a judgment of c the court of last resort void if its jurisdiction were debatable or even colorable, the· same rule must be applied to ihe judgments of all judicial tribunals. This is the true theory of judicial action when viewed collaterally. If any jurisdic- tional question is debatable or colorable, the tribunal must decide it; and an erroneous conclusion can any be corrected by some proceeding provided by law for so doing, com- monly called a Direct Attack. It is only where it can be shown lawfully, that some matter or thing essential to jurisdiction is wanting, that the proceeding is void, collaterally. It is the duty of the courts to set their faces against all collateral assaults on judicial proceedings for two reasons, namely: First. Not one case in a hundred has any merits in it "_ …. Second. The second reason why the courts should reduce the chances for a successful collateral attack to the c [J9ss1 Supp. 1 S.C.R. lowest minimum is, that they bring the courts themselves into disrepute: Many people look upon the courts as placed where jugglery and smartness are substituted for justice " …… Such things tend to weaken law and order and to cause men to settle their rights by violence. For these reasons, when the judgment rendered did not exceed the possible power of the court, and the notice was sufficient to put the defendant upon inquiry, a court should hesitate long before holding the proceedings void collaterally (emphasis supplied)

16. But in certain cases, motions to set aside Judgments are permitted where, for instance a judgment was rendered in ignorance of the fact that a necessary party had not been served at all, and was wrongly shown as served or in ignorance of the fact that a necessary- party had died and the estate was not represented. Again, a judgment obtained by fraud could be subject to an action for setting it aside. Where such a·judgment obtained by fraud tended to prejudice a non- party, as in the case of judgments in-rem such as for divorce, or jactita- t\on or probate etc. eve!). a person, not eo-nomine a party to the proceedings, could seek a setting-aside of the judgment. Where a party has had no notice and a decree is made against him, he can approach the court for setting-aside the decision. In such a case the party is said to become entitled to relief ex-debito justitiae, on proof of the fact that there was no service. This is a class of cases where there is no trial at all and tlie judgment is for default. D.N. Gordan, in his "Actions to set aside judgments." (1961 77 Law Quarterly Review 356) says: "The more familiar applications to set aside judgments are those made on motion and otherwise summarily. But th~e are judgments obtained by default, which do not represent a judicial determination. In general, Judgments rendered after a trial are conclusive between the parties unless and until reversed on appeal. Certainly in general judgments of superior courts cannot be overturned or questioned bet- ween the parties in collateral actions. Yet there is a type of collateral action known as an action of review, by which even a superior court's judgment can be questioned, even between the parties, and set aside ….. " A.R. ANTULAY v. R.S. NAYAK [VENKATACHALIAH, J.J Cases of such frank failure of natural justice are obvious cases A where relief is granted as of right. Where a person is not actually served but is held erroneously, to have been served, he can agitate that grievance only in that forum or in any further proceeding therefrom. In Issac's case [1984] 3 All ER 140 privy council referred to: " ………… , … a category of orders of such a court B which a person affected by the order is entitled to apply to have set aside ex-debito justitiae in exercise of the inherent jurisdiction of the court without needing to have recourse to the Rule>i that deal expressly with proceedings to set- aside orders for irregularity and give to the judge a discre- tion as to the order he will make". c In the present case by the order dated 5.4.1984 a five judge bench set-out, what according to it, was, the legal basis and source of jurisdiction to order transfer. On 17.4.1984 appellant's writ petition challenging that transfer as a nullity was dismissed. These orders are not which appellant is entitled to have set-aside ex-debito justitiae by D another bench. Reliance on the observations in Issac's case is wholly misplaced. The decision of the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh, [2 NIA 181] illustrates the point. Referring to the law on the matter, Lord Brougham saiO: "It is unquestionably the strict rule, and ought to be dis- tinctly understood as such, that no cause in this Court can be re-heard, and that an Order once made, that is, a report submitted to His Majesty and adopted, by being made an Order in Council, is final, and cannot be altered. The same F is the case of the judgments of the House of Lords, that is, of the Court of Parliament, or of the King in Parliament as it is sometimes expressed, the only other supreme tribunal in this country. Whatever, therefore, has been really de- termined in these Courts must stand, there being no power of re-hearing for purpose of changing the judgment pro- nounced; nevertheless, if by misprision in embodying the judgments, errors have been introduced, these Courts pos- sess, by common law, the same power which the Courts of Record and Statute have of rectifying the mistakes which have crept in. The Courts of Equity may correct the Decrees made while they are in minutes; when they are c I 1988[ Supp. 1 S.C.R. complete they can only vary them by re-hearing; and when they are signe_d and enrolled they can no longer be re- heard, but they must be altered, if at all, by Appeal. The Courts of Law, after the term in which the judgments are given can only alter them so as to correct misprisions, a power given by the Statutes of Amendment. The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must pos- sess the same authority. The Lords have, however, gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects, in order to enable the Decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies. But with the exception of one case in 1669, of doubtful authority, here, and another in Parliament of still less weight in 1642 (which was an Appeal from the Privy Council to Parliament, and at a time when the Government was in an unsettled state), no instance, it is believed, can be produced of a rehearing upon the whole cause, and an entire alteration of the judgment once pro- nounced ….. "

17. The second class of cases where a judgment is assailed for fraud, is illustrated by the Duchess qf Kingston's case (1776 2 Sm. L.C. 644 13th Ed.). In that case, the Duchess was prosecuted for bigamy on the allegation that she entered into marriage while her marriage to another person, a certain Hervey, was still subsisting. In her defence, the Duchess relied upon a decree of jactitation from an ecclesiastical court which purported to show that she had never been married to Hervey. The prosecution sought to get over this on the allegation the decree was obtained in a sham and collusive proceeding. The House of Lords held the facts established before Court rendered the decree nugatory and was incapable of supplying that particular defence. De Grey CJ said that the collusive decree was not be impeached from within; yet like all other acts of the highest authority, it is impeachable from without, although it is not permitted to show that the court was mistaken, it may be shown that they were misled. Fraud which affected the judgment was described by the learned Chief Justice as an "extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice."

18. The argument of nullity is too tall and has no place in this ijJ case. The earlier direction proceeded on a construction of Section 7(1) – A.R. ANTULAY 1•. R.S. NAYAK [VENKATACHALIAH, J.] of the Act and Section 407 Cr.P.C. We do not sit here in appeal over A what the five Judge bench said and p'roclaim how wrong they were. We are, simply, not entitled to embark, at a later stage, upon an investiga- tion of the correctness of the very same decision. The same bench can, of course, reconsider the mattP,r under Article 137.. ···• ;I However, even to the extent the argument goes that the High Court under Section 407 Cr.P.C. could not withdraw to itself a trial from Special-Judge under the 1952 Act, the view of the earlier bench.is a possible view. The submissions of Shri Ram Jethmalani that the exclusivity of the jurisdiction claimed for the special forum under the 1952 Act is in relation to Courts which would, otherwise, be Courts of competing or co-ordinate jurisdictions and that such exclusivity does not effec\ the superior jurisdiction of the High Court to withdraw, in appropriate situations, the case to itself in exercise of its extra- ordinary original criminal jurisdiction; that canons of Statutory-cons- truction, appropriate to the situation, require that the exclusion of jurisdiction implied in the 1952 amending Act should not be pushed beyond the purpose sought to be served by the amending law; and that the law while creating the special jurisdiction did not seek to exclude the extra-ordinary jurisdiction of the High Court are not without force. The argument, relying upon Kavasji Pestonji Dalal v. Rustomji Sorabji JamGdar & Anr., AIR 1949 Bombay 42 that while the ordinary competing jurisdictions of other Courts were excluded, the extra- ordinary jurisdiction of the High Court was neither intended to be, nor, in fact, affected, is a matter which would also bear serious exami- nation. In Sir Francis Bennion's Statutory Interpretation, there are passages at page 433 which referring to presumption against implied repeal, suggest that in view of the difficulties in determining whether an implication of repeal was intended in a particular situation itwould be a reasonable presumption that where the legislature desired a repeal, it would have made it plain by express words. In Sutherland Statutory construction the following passages occur: "Prior statutes relating to the same subject matter are to be compared with the new provisions; and if possible by reasonable construction, both are to be so construed that effect is given to every provision of each. Statutes in pari materia although in apparent conflict, are so far as reason- ably possible constructed to be in harmony with each other." (Emphasis supplied) c c SUPREMI;: COURT REPORTS [19881 Supp. 1 S.C.R. "When the legislature enacts a provision, it has before it a 11 the other provisions relating to the same.sub- ject matter which it enacts at that time, whether in the same statute or in a separate Act. It is evident that it has in mind the provisions of a prior Act to which it refers, whether it phrases the later Act as amendment or an in- dependent Act. Experience indicates that a legislature does not deliberately enact inconsistent provisions when it is rec- ogzant of them both, without expressly recognizing the inconsistency." (emphasis supplied) Reliance by Shri Ram Jethmalani on these principles to support his submission that the power under Section 407 was unaffected and that the decision in State of Rajasthan v. Gurucharan Das- – Chadda (supra), can not also be taken to have concluded the matter, is not un-arguable. I would, therefore, hold contentions (a) and (b) against appellant.

19. Re: contention (c): The fundamental right under Article 14, by all reckoning, has a very high place in constitutional scale of values. Before a person is deprived of his personal liberty, not only that the Procedure establis- hed by law must strictly be complied with and not departed from to the disadvantage or detriment of the person but also that the procedure for such deprivation of personal liberty must be reasonable, fair and just. Article 21 imposes limitations upon the procedure and requires it to conform to such standards of reasonableness, fairness and justness as the Court acting as sentinal of fundamental rights would in the context, consider necessary and requisite. The court will be the arbiter of the question whether the procedure is reasonable, fair and just. If the operation of Section 407, Cr.P.C. is not impliedly excluded and therefore, enables the withdrawal of a case by the High Court to itself for trial as, indeed, has been held by the earlier bench, the argument based on Article 14 would really amount to a challenge to the very vires of Section 407. All accused persons cannot claim to be tried by the same Judge. The discriminations-inherent in the choice of one of the concurrent jurisdictions-are not brought about by an inanimate statutory-rule or by executive fiat. The withdrawal of a case under Section 407 is made by a conscious judicial act and is the result H of judicial discernment. If the law permits the withdrawal of the trial to A.R. ANTULAY v. R.S. NA~AK [VENKATACHAhlAH, J.] the High Court from a Special Judge, such a Jaw enabling withdrawal would not, prima facie, be bad as violation of Ar.tide 14. The five Judge bench in the earlier case has held that such a transfer is permissi- ble under law. The appeal to the principle in Anwar Ali Sarkar's case (supra), in such a context would be somewhat outof place. If the law did not permit such a transfer then the trial before a forum which is not according to law violates the rights of the accused person. In the earlier decision the transfer has been held to be permis- sible. That decision has assumed finality. If appellant says that he is singled out for a hostile 'treatment on the ground alone that he is exposed to a trial before a Judge of the . High Court then the submission has a touch of irony. Indeed that a trial by a Judge of the High Court makes for added re-assurance of justice, has been recognised in a number of judicial pronouncement. Th" argument that a Judge of the High Court may not necessarily possess the statutory-qualifications requisite for being appointed as a Special Judge appears to be specious. A judge of the High Court hears appeals arising from the decisions of the Special Judge, and exercises a jurisdiction which includes powers co-extensive with that of the trial court. There is, thus, no substance in contention (c). 21. Re: Contention(d): This grievance is not substantiated on facts; nor, having regard to the subsequent course.of events permissible to be raised at this stage. These directions, it is not disputed, were issu~d on 16.2.1984 in the open Court in the presence of appellant's learned counsel at the time c of pronouncement of the judgment. Learned counsel had the right and the opportunity of making an appropriate submission to the court as to the permissibility or otherwise of the transfer. Even if the submissions of Shri Ram Jethmala.ni that in a revision application Section 403 of the Criminal Procedure Code does not envisage a right of being heard and that transfer of a case to be ttied by the Judge of the High Court cannot, in the estimate of any right thinking person, be said to be detrimental to the accused person is not accepted, however, applicant, by his own conduct, has disentitled himself to make grievance of it in these proceedings. It cannot be said that after the directions were …, pronounced and before the order was signed there was no opportunity for the appellant's learned counsel to make any submissions in regard to the allege.d illegality or impropriety of the directions. Appellant.did [19881 Supp. 1 S.C.R. not utilise the opportunity. That apart, even after being told by two judicial orders that appellant, if aggrieved, may seek a review, he did not do so. Even the grounds urged in the many subsequent proceed- ings appellant took to get rid of the effect of the direction do not appear to. include the grievance that he had no opportunity of being heard. Where, as here, a party having had an opportunity to raise a grievance in the earlier proceedings does not do so and makes it a technicality later he cannot be heard to complain. Even in respect of so important jurisdiction as Habeas Corpus, the observation of Gibson J in Re. Tarling [1979] 1 All E.R. 981at987 are significant: c "Firstly, it is clear to the Court that an applicant for habeas corpus is required to put forward on his initial appli- cation then whole of the case which is then fairly available to him he is not free to advance an application on one ground, and to keep back a separate ground of application as a basis for a second or renewed ·application to the Court. The true doctrine of estoppel known as res judicata does not apply to the decision of this Court on an applica- tion for habeas corpus we refer to the words of Lord Parke! CJ delivering the Judgment of the Court in Re. Hastings (No. 2). There is, however, a wider sense in which the doctrine of res judicata may be applicable, whereby it becomes an abuse of process to raise in subsequent pro- ceedings matters which could, and therefore, should have been litigated in earlier proceedings ……. " This statement of the law by Gibson J was approved by Sir John Donaldson MR in the Court of appeal in Ali v. Secretary of State for f the Home Department, [1984] I All E.R. 1009 at 1019. Rules of natural justice embodies fairness in-action. By all standards, tney are great assurances of Justice and fairness. But they should not be pushed to a breaking point. It is not inappropriate to recall what Lord Denning said in R.-v. Secretary of State for the Home Department ex-parte Mugha/, I 1973] 3 All ER 796: '" …… The rules of natural justice must not be stretched to'o far. Only too often the people who have done wrong seek to invoke the rules of natural justice so as to avoid the consequences. Contention ( d) is insubstantial. ···: ffi"tl. A.R. ANTULAY v. R.S. NAYAK [VENKATACHALIAH, J.J 22. Re. Contention (e): The contention that the transfer of the case to the High Court involves the elimination of the appellant's right of appeal to the High Court which he would otherwise have and that the appeal under Arti- cle 136 of the Constitution is not as of right may not be substantial in view of Section 374, Cr. P.C. which provides such an appeal as of B right, when the triahs held by the High Court. There is no substance in contention (e) either. 23. Re. Contention (f): The argument is that the earlier order of the five Judge bench in so far as it violates the fundamental rights .of .the appellant under C Article 14 and 21.must be held to be void and amenable to challenge under Article 32 in this very Court and that the decision of this Court in Premchand Garg's case (supra) supports such a position. As rightly pointed out by Ranganath Misra, J. Premchand Garg's case needs to be understood in the light of the observations made in Naresh Sridhar D Mirajkar & Ors. v. State of Maharashtra & Anr., [1966] 3 SCC 744. In Mirajkar's case, Gajendragadkar, CJ., who had himself delivered the opinion in Garg's case, noticed the contention based on Garg's case thus: "In support of his argument that a judicial decision can be corrected by this Court in exercise of its writ juris- diction under Article 32(2), Mr. Setalvad hasrelied upon another decision of this Court in Prem Chand Garg v. Excise Commi.<sioner, UP, Allahabad (supra) ….. " Learned Cliief Justice referring to the scope of the matter that fell for consideration in Garg's case stated: " . . . . . It would thus be seen that the main con- troversy in the case of Prem Chand Garg centered round the question as to whether Article 145 conferred powers on this Court to make rules, though they may be incon~istent G with the constitutional provisions prescribed by part III. Once it as held that the powers under Article 142 had to be read subject not only to the fundamental rights, but to other binding statutory provisions, it became clear that the ruler which authorised the making of the impugned order was invalid. It was in that context that the validity of the c [ 1988] Supp. 1 S.C.R. order had to be incidentally .examined. The petition was made not to challenge the order as such, but to challenge the validity of the rule under which the order was made Repelling the contention, learned Chief Justice said: " ….. It is difficult to see now this decision can be pressed into service by Mr. Setalvad in support of the argu- ment that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself ….. " A passage from Kadish&. Kadish "Discretion to Disobey", 1973 Edn. may usefully by recalled: "On one view, it would appear that !\le right of a citizen to defy illegitimate judicial authority should be the same as his right to defy illegitimate legislative authority. After all, ifa rule that transgresses the Constitution or is otherwise invalid is no law at all and never was one, it should hardly matter whether a court or a legislature made the rule. Yet the prevailing approach of the courts has been 'lo treat invalid court orders quite differently from invalid statutes. The long established principle of the old equity courts was that an erroneously issued in junction must be obeyed until the error was judicially determined. Only where the issuing court could be said to have lacked jurisd- iction in the sense of authority to adjudicate the cause and to reach the parties through its mandate were disobedient contemnors permitted to raise the invalidity of the order as a full defence. By and large, American courts have de- clined to treat the unconstitutionality of a court order as a jurisdictional defect within this traditional equity principle, and in notable instances they have qualified that principle even where the defect was jurisdiction in the accepted sense." (See 111). Indeed Ranganath Misra, J. in his opinion rejected the contention of the appellant in these terms: "In view of this decision in Mirajkar's case, supra, it must be· taken as concluded that judicial proceedings in this Court are not subject to the writ jurisdiction thereof." A.R. ANTULAY v. R.S. NAYAK [VENKATACHALIAH, J.J There is no substance in contention (f) either. 24. Contention (g): It is asserted that the impugned directions issued by the five Judge Bench was per-incuriam as it ignored the Statute and the earlier Chadda's case. But the point is that the circumstance that a decision is rea~hed per-incuriam, merely serves to denude the decision of its precedent- value. Such a decision would not be binding as a judicial precedent. A co-ordinate bench can ,disagree with it and decline to follow it. A larger bench can ~ver rule such decision. When a previous decision is C so overruled it does not happen-nor has the overruling bench any jurisdiction so to do-that the finality ·of the operative order' inter- parties, in the previous decision is overturned: In this context the word 'decision' means only the reason for the previous order and not the operative-order in the previous decision, binding inter-parties. Even if a previous decision is overruled by a larger-bench, the efficacy and D binding nature, of the adjudication expressed in the operative order remains undisturbed inte.r-parties. Even if the earlier decision of the five Judge bench is per-incuriani-the operative part of the order cannot be interfered within the manner now sought to be done. That apart the . five Judge bench gave its reason. The reason, in our opinion, may or . may not be sufficient. There is advertence to Section 7(1) of the 1952 E Act and to the exclusive jurisdiction created thereunder. There is also reference to Section 407 of the Criminal Procedure Code. Can such a decision be characterised as one reached per-incurium? Indeed, Ran- ganath Misra, J. says this on the point: "Overruling when made by a larger bench of an F . earlier decision of a smaller one is intended to take away the precedent val.ue of the decision without affecting the binding effect of ihe decision in the particular case. Antulay, therefore, is not entitled to take advantage of the matter being before alarger bench …… " I respectfully agree. Point (g) is bereft of substance and merits. · 25. Re: Contention (h): The argument is that the appellant has been prejudiced by a mistake of the Court and it is not only within power but a duty as well, c of the Cour• to correct its own mistake, so that no party is prejudiced by the Court's mistake: Actus Curiae Neminem Gravabid. I am afraid this maxim has no application to conscious conclu- sions reached in a judicial decision. The maxim is not a·source of a general power to reopen and rehear adjudication which have other- wise assumed finality. The maxim operates in a different and narrow area. The.best illustration of the operation of the maxim is provided by the application of the rule of nunc-pro-tunc. For instance, if owing to the delay in what the court should, otherwise, have done earlier but did later, a party suffers owing to events occurring in the interrugnum, the Court has the power to remedy it. The area of operation of the maxim is, generally, procedural. Errors in judicial findings, either of facts or law or aper alive decisions consciously arrived at as a part of the jndicial-exercise cannot be interfered with by resort to his maxim. There is no substance in contention (h). 26. It is true that the highest court in the land should no:, by technicalities of procedure forge fetters on its own feet and disable itself in cases of serious miscarriages of justice. It is said that "Life of Jaw is not logjc; it has been experience." Bnt it is equally true as Cardozo said: 'But Holmes did not tell us that logic is to be ignored when .experience· is silent. Those who do not put the teachings of experience and the lessons of logic out of consideration would tell what inspires confidence in the judiciary and what does not. Judicial vacillations fall in the latter category and undermine respect of the judiciary and judicial institutions, denuding thereby respect for law and the confidence in the even-handedness in the adminstration of ,iustice by Courts. It would be gross injustice, says an author, (Miller- ' data of jurisprudence') to decide alternate cases on opposite princi- pies. The power to alter a decision by review must be expressly confer- red or necessarily inferred. The power of review-and the limitations on the power-under Article 137 are implicit recognitions of what would, otherwise, be final and irrevocable. No appeal could be made to the doctrine of inherent powers of the Court either. Inherent pow- ers do not confer, or constitute a source of, jurisdiction. They are to be G exercised in aid of a jurisdiction that is already invested. The remedy of the appellant, if any, is recourse to Article 137; no where else. This appears to me both good sense and good law. The appeal is dismissed. RANGANATHAN, J. 1. I have had ihe benefit of perusing the A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN. J.J drafts of the judgments proposed by my learned brothers Sabyasachi Mukharji, Ranganath Misra and Venkatachaliah, JJ. On the question whether the direction given by this Court in its judgment dated 16.2.1984 should be recalled, I find myself in agreement with the conc- lusion of Venkatachaliah, J. (though for slightly different reasons) in preference to the conclusion reached by Sabyasachi Mukharji, J. and Ranganath Misra, J. I would, therefore, like to set out my views sepa- rately on this issue. THE ISSUES 1. This is an appeal by special leave from a judgment of Shah J., of the Bombay High Court. The appellant is being tried for offences under Ss. 120B, 420, 161 and 165 of the Indian Penal Code (I.P.C.) read with S. 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947. The proceedings against the appellant were started in the Court c of Sri Bhutta, a Special Judge, appointed under S. 6(1) of the Criminal Law (Amendment) Act, 1952 (hereinafter referred to as 'the 1952 Act'). The proceedings have had a chequered career as narrated in the judgment of my learned brother Sabyasachi Mukharji, J. Various issues have come up for consideration of this Court at the earlier stages of the proceedings and the judgments of this Court have been reported in 1982 2 S.C.C. 463, 1984 2 SCR 495, 1984 2 SCR 914, 1984 3 SCR 412, 1984 3 SCR 482 and 1986 2 S.C.C. 716. At present the appellant is being tried by a learned Judge of the Bombay High Court nominated by the Chief Justice of the Bombay High Court in pursuance of the direction given by this Court in its order dated 16.2.1984 (reported in 1984 2 SCR 495). By the order presently under appeal, the learned Judge (s) framed as many as 79 charges against the appellant and (b) rejected the prayer of the appellant that certain persons, named as co-conspirators of the appellant in the complaint on the basis of which the prosecution has been launched should be arrayed as co-accused along with him. But the principal contention urged on behalf of the appellant before us centres not round the merits of the order under appeal on the above two issues but round what the counsel for the appellant has described as a fundamental and far-reaching objection to the very validity of his trial before the learned Judge. As already stated, the trial is being conducted by the learned Judge pursuant to the direction of this Court dated 16.2.1984. The contention of the learned counsel is that the said direction is per incuriam, illegal, invalid, contrary to the principles of natural justice and violative of the fundamental rights of the petitioner. This naturally raises two important issues for our consideration: A. Whether the said direction is inoperative, invalid or illegal, as alleged; and c B. Whether, if it is, this Court can and should recall, withdraw, revoke or set aside the same in the present proceedings. Since the issues involve a review or reconsideration of a direction given by a Bench of five judges of this Court, this seven-judge Bench has been constituted to hear the appeal. 2. It is r.ot easy to say which of the two issues raised should be touched upon first as, whichever one is taken up first, the second will not arise for consideration unless the first is answered in the affirma- tive. However, as the correctness of the directiion issued is impugned by the petitioner, as there is no detailed discussion in the earlier order on the points raised by the petitioner, and as Sabyasachi Mukharji, J. has expressed an opinion on these contentions with parts of which I am unable to agree, it will be perhaps more convenient to have a look at the first issue as if it were coming up for consideration for the first time before us and then, depending upon the answer to it, consider the second issue as to whether this Court has any jurisdiction to recall or revoke the earlier order. The issues will, therefore, be discussed in this order. A. ARE THE DIRECTIONS ON 16.2.1984 PROPER, VALID AND LEGAL? 3. For the appellant, it is contended that the direction given in the last para of the order of the Bench of five Judges dated 16.2.1984 (extracted in the judgment of Sabyasachi Mukharji, J.) is vitiated by illegality, irregularity and lack of jurisdiction on the following grounds: (i) Conferment of jurisdiction on courts is the function of the legislature. It was not competent for this Court to confer jurisdic- tion on a learned Judge of the High Court to try the appellant, as, under the 1952 Act, an offence of the type in question can be tried only by a special Judge appointed thereunder. This has b.een overlooked while issuing the direction which is, therefore, per incuriam. (ii) The direction above-mentioned (a) relates to an issue which was not before the Court (b) on which no arguments were addressed and ( c) in regard to which the appellant had no opportunity to make his submissions. It was nobody's case before the above Bench that the trial of the accused should no A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN, l.J longer be conducted by a Special Judge but should be before a High Court Judge. (iii) In issuing the impugned direction, the Bench violated the principles of natural justice, as mentioned above. It also over- looked that, as a result thereof, the petitioner (a) was dis- criminated against by being put to trial before a different forum as compared to other public servants accused of similar offences and (b) lost valuable rights of revision and first appeal to the High Court which he would have had, if tried in the normal course. The direction was thus also violative of natural justice as well as the fundamental rights of the petitioner under Article 14 and 21 of the C Constitution. Primary Jurisdiction 4. There can be-and, indeed, counsel for the respondent had- o no quarrel with the initial premise of the learned counsel for the appel- lant that the conferrnent of jurisdiction on courts is a matter for the legislature. Entry 77 of List I, entry 3 of List II and entries 1, 2, llA and 46 of List III of the Seventh Schedule of the Constitution set out the respective powers of parliament and the State Legislatures in that regard. It is common ground that the jurisdiction to try offences of the E type with which are concerned here is vested by the 1952 Act in Special Judges appointed by the respective State Governments. The first ques- tion that has been agitated before us is whether this Court was right in transferring the case for trial from the Court of a Special Judge, to a Judge nominated by the ChiefJustice of Bombay. High Court's Power of Transfer 5. The power of the Supreme Court to transfer cases can be traced, in criminal matters, either to Art. 139A of the Constitution or Section 406 of the Code of Criminal Procedure ("Cr. P.C.), 1973. Here, again, it is common ground that neither of these provisions G cover the present case. Sri Jethmalani, learned counsel for the respon- dent, seeks to support the order of transfer by reference to Section 407 (not Section 406) of the Code and cl. 29 of the Letters Patent of the Bombay High Court. Section 407 reads t~us: (1) Whenever it is made to appear to the High Court- I 1988] Supp. 1 S.C.R. (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of foe parties or witnesses, or is expedient for the ends of justice, c it may order- (i) that any offence be inquired into or tried by any Court not qualified under Section 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offences; (ii) that any particular case or appeal, or class of cases or appe- als, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (iii) that any particular case be committed for trial to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself. (2) the High Court may act either on the report of the lower court or on the application of a party interested or on its own initiative: xxx xxx xxx xxx xxx xxx xxx xxx xxx (9) Nothing in !bis section shall be deemed to affect any order of Government under Section 197." And cl. 29 of the Letters Patent of the Bombay High Court runs thus: "And we do further ordain that the said High Court shall have power to direct the transfer of anv criminal case or A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN. J.[ appeal from any Court to any other Court of appeal or superior jurisdiction, and also to directthe preliminary in- vestigation of trial of any criminal case by any officer of Court otherwise competent to investigate or try it though such cas~ belongs, in ordinary course, to the jurisdiction of some other officer, of Court." The argument is that this power of transfer vested in the High Court can well be exercised by the Supreme Court while dealing with an appeal from the High Court in the case. 6. For the appellant, it is contended that the power of transfer under section 407 cannot be invoked to transfer a case from a Special Judge appointed under the 1952 Act to the High Court. Learned counsel for the appellant contends that the language of section 7(1) of the Act is mandatory; it directs that offences specified in the Act can be tried only by persons appointed, under S. 6(2) of the Act, by the State Government, to be special judges, No other Judge, it is said, has jurisdiction to try such a case, even if he is a Judge of the 'High Court. In this context, it is pointed out that a person, to be appointed as a special Judge, under section 6(2) of the 1952 Act, should be one who is, or has been, a Sessions Judge (which expression in this context includes an Additional Sessions Judge and/or an Assistant Sessions Judge). All High Court Judges may not have been Sessions Judges earlier and, it is common ground, Shah, J. who has been nominated by the Chief Justice for trying this case does not fulfill the qualifications prescribed for appointment as a Special Judge. But, that consideration apart, the argument is that, while a High Court can transfer a case from one special judge to another, and the Supreme Court, from a special judge in one State to a special judge in another State, a High Court cannot withdraw a case from a Special Judge to itself and the Supreme Court cannot transfer a case from a Special Judge to the High Court. 7. On the other hand, it is contended for the respondent that the only purpose of the 1952 Act is to ensure that cases of corruption and bribery do not get bogged up in the ordinary criminal courts which are over-burdened with all sorts of cases. Its object is not to create special courts in the sense of courts manned by specially qualified personnel or courts following any special type of procedure. All that is done is to earmark some of the existing sessions judges for trying these offences exclusively.' The idea is just to segregate corruption and bribery cases to a few of the sessions judges so that they could deal with them c c effectively and expeditiously. It is a classification in which the emphasis is on the types of offences and nature of offenders rather than on the qualifications of judges. That being so, the requirement in section 7(1) that these cases should be tried by special judges only is intended just to exclude their trial by the other normal criminal courts of coordinate jurisdiction and not to exclude the High Court. 8. Before dealing with these contentions, it may be useful to touch upon the question whether a judge of a High Court can be appointed by the State Government as a special judge to try offences of the type specified in section 6 of the 1952 Act. It will be seen at once that not all the judges of the High Court (but only those elevated from the State subordinate judiciary) would fulfill the qualifications pre- scribed under section 6(2) of the 1952 Act. Though there is nothing in ss. 6 and 7 read together to preclude altogether the appointment of a judge of the High Court fulfilling the above qualifications as a special judge, it would appear that such is not the (atleast not the normal) contemplation of the Act. Perhaps it is possible to argue that, under the Act, it is permissible for the State Government to appoint one of the High Court Judges (who has been a Sessions Judge) to be a Special Judge under the Act. If that had been done, that Judge would have been a. Special Judge and would have been exercising his original jurisdiction in conducting the trial. But that is not the case here. In response to a specific question put by us as to whether a High Court Judge can be appointed as a Sp~cial Judge under the 1952 Act, Shri Jethmalani submitted that a High Court Judge cannot be so appointed. I am inclined to agree. The scheme of the Act, in particular the provi- sionS contained in ss. 8(3A) and 9, militate against this concept. Hence, apart from the fact that in this case no appointment of a High Court Judge, as a Special Judge, has in fact been made, it is not possible to take the view that the statutory provisions permit the con- ferment of a jurisdiction to try this case on a High Court Judge as a Special Judge. 9. Turning now to the powers of transfer under section 407, one may first deal with the decision of this Court in Gurucharan Das G · Chadha v. State of Rajasthan, [1966] 2 S.C.R. 678 on which both counsel strongly relied. That was a decision by three judges of this Court on a petition under section 527 of the 1898 Cr.P.C. (correspond- ing to section 406 of the 1973 Cr.P.C.). The petitioner had prayed for the transfer of a case pending in the court of a Special Judge in Bharatpur, Rajasthan to another criminal court of equal or superior jurisdiction subordinate to a High Court other than the High Court of A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN, J.[ Rajasthan. The petition was eventually dismissed on merits. But the Supreme Court dealt with the provisions of section 527 of the 1898 Cr.P.C. in the context of an objection taken by the respondent State that the Supreme Court did not have the jurisdiction to transfer a case pending before the Special Judge, Bharatpur. The contention was that a case assigned by the State Government under the 1952 Act to a Special Judge cannot be transferred at all because, under the terms of B that Act, which is a self-contained special law, such a case must be tried only by the designated Special Judge. The Court observed that the argument was extremely plausible but not capable of bearing close scrutiny. After referring to the provisions of section 6, 7 and 8 of the 1952 Act, the Court set out the arguments for the State thus: "The Advocate-General, Rajasthan, in opposing the peti- C tion relies principally on the provisions of section 7(1) and 7(2) and contends that the two sub-sections create two restrictions which must be read together. The first is that offenc"s specified in section 6(1) can be tried by Special Judges only. The second is that every such offence shall be D tried by the Special Judge for the area within which it is committed and if there are more special judges in that area by the Special Judge chosen by the Government. These two conditions, being statutory, it is submitted that no order can be made under section 52il because, on transfer, even if a special judge is entrusted with the case, the second condi- E ti on is bound to be broken." Dealing with this contention the Court observed: "This condition, if literally understood, would lead to the conclusion that a case once made over to a special Judge in F an area where there is no other special Judge, cannot be transferred at all. This could hardly have been intended. If this were so, the power to transfer a case intra-state under s. 526 of the Code of Criminal Procedure, on a parity of reasoning, must also be lacking. But this Court in Rama- chandra Parsadv. State of Bihar, [1962) 2 S.C.R. 50 unheld G the transfer of a case by the High Court which took it to a special judge who had no jurisdiction in the area where the offence was committed. In holding that the transfer was valid this Court relied upon the third sub-section of Section 8 of the Act. That sub-section preserves the application of any provision of the Code of Criminal Procedure It it is not c inconsistent with the Act, save as provided in the first two sub-sections of that section. The question, therefore, resol- ves itself to this: Is there an inconsistency between S. 527 of the Code and the second sub-section of S. 7? The answer is that there is none. Apparently this Court in the earlier case found no inconsistency and the reasons appear to be there: The condition that an offence specified in S. 6(2) shall be tried by a special Judge for the area within wnich it is committed merely specifies which of several special Judges appointed in the State by the State Government shall try it. The provision is analogous to others under which the jurisdiction of Magistrates and Sessions Judges is deter- mined on a territorial basis. Enactments in the Code of Criminal Procedure intended to confer territorial jurisdic- tion upon courts and Presiding Officers have never oeen held to stand in the way of transfer of criminal cases outside those areas of territorial jurisdiction. The order of transfer when it is made under the powers given l]y the Code invests another officer with jurisdiction although oridnarily he would lack territorial jurisdiction to try the case. The order of this Court, therefore, which transfer(s) a case from one special Judge subordinate to one High Court to another special Judge subordinate to another High Court creates jurisdiction in the latter in much the same way as the trans- fer by the High Court from one Sessions Judge in a Session Division to another Sessions Judge in another Sessions Division. There is no comparison between the first sub-section and the second sub-section of Section 7. The condition in the second sub-section of S. 7 is not of the same character as the condi- tion in the first sub-section. The first sub-section creates a condition which is a sine qua non for the trial of certain offences. That condition is that the trial must be before a special Judge. The second sub-section distributes the work between special Judges and lays emphasis on the fact that trial must be before a special Judge appointed for the area in which the offence is committed. This second condition is on a par with the distribution of work territorially between different Sessions Judges and Magistrates. An order of transfer, by the very nature of things must, some times, result in taking the case out of the territory and the provi- sions of the Code which are preserved by the third sub- i ~-,' .• A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN. J.[ section of S. 8 must supervene to enable this to be done and the second sub-section of S. 7 must yield. We do not con- sider that this creates any inconsistency because the territo- rial jurisdiction created by the second sub-section of S. 7 operates in a different sphere and under different circumst- ances. Inconsistency can only be found if two provisions of law apply in identical circumstances ·and create contradic- tions. Such a situation does not arise when either this Court or the High Court exercises its powers of transfer. We are accordingly of the opinion that the Supreme Court in exer- cise of its jurisdiction and power under S. 527 of the Code of Criminal Procedure can transfer a case from a Special Judge subordinate to the High Court to another special Judge subordinate to another High Court." (emphasis added) c 10. The attempt of Sri Jethmalani is !O bring the present case within the scope of the observations contained in the latter part of the extract set out above. He submits that a special judge, except insofar D as a specific provision to the contrary is made, is a court subordinate to the High Court, as explained in 1984 2 S.C.R. 914 (at pages 943-4) and proceedings before him are subject to the provisions of the 1973 Cr.P .C.; the field of operation of the first sub-section of section 7 is merely to earmark certain Sessions Judges for purposes of trying cases of corruption by public servants and this provision is, in principle, not different from the earmarking of cases on the basis of territorial juris- diction dealt with by sub-section 2 of section 7. The argument is no doubt a plausible one. It does look somewhat odd to say that a Ses- sions Judge can, but a High Court Judge cannot, try an offence under the Act. The object of the Act, as rightly pointed out by counsel, is only to segregate certain cases to special courts which will concentrate on such cases so as to expedite their disposal and not to oust the superior jurisdiction of the High Court or its powers of superintend- ence over subordinate courts under article 227 of the Constitution, an aspect only of which is reflected in s. 407 of the Cr.P.C. However, were the matter to be considered as res integra, I would be inclined to accept the contention urged on behalf of the appellant, for the follow- ing reasons. In the first place, the argument of the counsel for the respondent runs counter to the observations made by the Supreme Court in the earlier part of the extract set out above that the first sub-section of section 7 and the second sub-section are totally different in character. The first sub-section deals with a sine qua non for the trial of certain offences, whereas the second sub-section is only of a pro- cedural nature earmarking territorial jurisdiction among persons com- petent to try the offence. They are, therefore, vitally different in nature. The Supreme Court has clearly held in the passage extracted above that. the case can be transforred only from one special judge to another. In other words, while the requirement of territorial jurisdic- tion is subordinate to S. 406 or 407, the requirement that the trial should be by a special judge is not. It is true that those observations are not binding on this larger Bench and moreover the Supreme Court there was dealing only with an objection based on sub~section (2) of Section 7. It is, however, clear that the Bench, even if it had accepted the transfer petition of Gurcharan Das Chadha, would have rejected a prayer to transfer the case to a court other than that of a Special Judge appointed by the transferee State. I am in respectful agreement with C · the view taken in that case that there is a vital qualitative difference between the two sub-sections and that while a case can be transferred to a special judge who may not have the ordinary territorial jurisdic- tion over it, a transfer cannot be made to an ordinary magistrate or a court of session even if it has territorial jurisdiction. If the contention D of the learned counsel for the respondent that s. 7(1) and s. 407 operate in different fields and are not inconsistent with each other were right, it should be logically possible to say that the High Court can, under s. 407, transfer a case from a special judge to any other Court of Session. But such a conclusion would be clearly repugnant to the scheme of the 1952 Act and plainly incorrect. It is, therefore, E difficult to accept the argument of Sri Jethmalani that we should place the restriction C()ntained in the first sub-section of section 7 also as being on the same footing as that in the second sub-section and hold that the power of transfer contained in the Criminal Procedure Code can be availed of to transfer a case from a Special Judge to any other criminal courfor even the High Court. The case can be transferred p only from one special judge to another special judge; it cannot be transferred even to a High Court Judge except where a High Court Judge is appointed as a Special Judge. A power of transfer postulates that the court to which transfer or withdrawal is sought is competent to exercise jurisdiction over the case. (vide, Raja Soap Factory v. Shantaraj, [1965] 2 S.C.R. 800). 11. This vie-.y also derives support from two provisions of s. 407 itself. The first is this. Even when a case is transferred from one criminal court t6 another, the restriction as to territorial jurisdiction may be infringed. To obviate a contention based on lack of territorial jurisdiction in the transferee court in such a case, clause (ii) of s. 407 H provides that the order of transfer will prevail, lack of jurisdiction A.R. ANTULAY v. R.S. NAYAK IRANGANATHAN, J.) under Ss. 177 to 185 of the Code notwithstanding. The second diffi- culty arises, even .under the Cr.P.C. itself, by virtue of S. 197 which not only plac~s restriction on the institution of certain prosecutions against public servants without Government sanction but also empow- ers the Government, inter alia, to determine the court before which such trial is to be conducted. When the forum of such a trial is transfer- red under s . .407 an objection may be taken to the continuance of the trial by the transferee court based on the order passed under s. 197. This eventuality is provided against by s. 407(9) of the, Act which porvides that nothing in s. 407 shall be deemed to affect an order passed under s. 407. Although specifically providing for these conting- encies, the section is silent in so far as a transfer from the court of a Special Judge under the 1952 Act is concerned though it is a much later enactment. . 12. On the contrary, the language of s. 7(1) of the 1952 Act places a definite hurdle in the way of construing s. 407 of the Cr.P.C. as overriding its provisions. For, it opens with the words: "Notwithstanding anything contained in the Code of Crimi- nal Procedure, 1898 or in any other law". c In view of this non-obstanti clause also, it becomes difficult to hold that the provisions of section 407 of the 1973 Cr.P .C. ~ill override, or even operate consistently with, the provisions of the 1952 Act. For the same reason it is not possible to hold that the power of transfer contained in clause 29 of the Letters Patent of the Bombay High Court can be exercised in a manner not contemplated by section 7( 1) of the 1952 Act. 13. Thirdly, whatever may be the position where a case is trans- ferred from one special judge to another or from one ordinary subordi- rate criminal court to another of equal or superior jurisdictiion, the withdrawal of a case by the High Court from such a Court to itself for trial places certain handicaps on the accused. It is true that the court to which the case has been transferred is a superior court and in fact,.the High Court. Unfortunately, however, the high Court judge is not a person to whom the trial of the case can be assigned under s. 7(1) of the 1952 Act. As pointed out by the Supreme Court in Surajmal Mohta v. Viswanatha Sastry, [1955) 1 S.C.R. 448 at pp. 464 in a slightly different context, the circumstance that a much superior forum is assigned to try a case than the one normally available cannot by itself be treated as a "sufficient safeguard and a good substitute" for the . H normal forum and the rights available under the normal procedure. The accused here loses his right of coming up in revision or appeal to the High Court from the interlocutory and final ord!).rs of the trial court, ~ loses the right of having two courts-a subordinate court and the High Court-adjudicl!-te upon his contentions before bringing the matter up in ihe Supreme Court. Though, as is pointed out later, these B' are not· such handicaps as violate the fundamental rights of such an accused, they are circumstances which create prejudice to the accused and may not be overlooked in adopting one construction of the statute in preference to the other. 14. Sri Jethmalani vehemently contended that the construction C of s. 407 sought for by the appellant is totally opposed to well settled canons of statutory construction. He urged that the provisions of the 1952 Act should be .interpreted in the light of the objects it sought to achieve and its amplitude should not be extended beyond its limited objective. He said that a construction of the Act which leads to repugnancy with, or entails pro tanto repeal of, the basic criminal D procedural law and seeks to divest jurisdiction vested in a superior court should be avoided. These aspects have been considered earlier. The 1952 Act sought to expedite the trial of cases involving public servants by the creation of courts presided over by experienced special judges to be appointed by the State Government. There is however nothing implausible in saying that the Act having already earmarked E these cases for trial by experienced Sessions Judges made this provi- sion immune against the applicability of the provisions of other laws in general and the Cr.P.C. in particular. Effect is only being given to these express and specific words used in section 7(1) and no question arises of any construction being encouraged that is repugnant to the Cr.P.C. or involves an implied repeal, pro tanto, of its provisions. As F has already been pointed out, if the requirement ins. 7(1) were held to be subordinate to the provisions contained in s. 406-7, then in princi- ple, even a case falling under the 1952 Act can be transferred to any other Sessions Judge 'and that would defeat the whole purpose of the Act and is clearly not envisaged by it. Supreme Court's power of transfer 15. It will have been noticed that the power of transfer under section 407 or cl. 29 of the Letters Patent which has been discussed f4ill above is a power vested in the High Court. So the question will arise whether, even assuming that the High Court could have exercised such H power, the Supreme Court could have done so. On behalf of the A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN, J.J respondent, it was contended that, as the power of the High Court under s. 407 can be exercised on application of a party or even suo motu and can be exercised by it at any stage irrespective of whether any application or matter in connection with the case is pending before it or not, the Supreme Court, as an appellate Court, has a co-equal jurisdiction to exercise the power of transfer in the same manner as the High Court could. In any event, the Supreme Court could exercise the power as one incidental or ancillary to the power of disposing of a revision or appeal before it. The appellants, however, contend that ;as the power of the Supreme Court to order transfer of cases has been specifically provided for in section 406 and would normally exclude cases of intra-state transfer covered by section 407 of the Code, the statute should not be so construed as to imply a power of the Supreme Court, in appeal or revision, to transfer a case from a subordinate court to the High Court. The argument also is that what the Supreme Court, as an appellate or revisional court, could have done was either (a) to direct the High Court to consider whether this was a fit case for it to exercise its power under section 407(1)(iv) to withdraw the case to itself and try the same with a view to expeditiously.dispose it of or (b) to.have withdrawn the case to itself for trial. But, it is contended, no power which the Supreme Court could exercise as an appellate or revisional court could have enabled the Supreme Court to transfer the case from the Special Judge to the High Court. c 16. Here also, the contentions of both parties are nicdy · E balanced but I am inclined to think that had the matter been res integra and directions for transfer were being sought before us for the first time, this Court would have hesitated to issue such a direction and may at best have left it to the High Court to consider the matter and exercise its own discretion. As already pointed out, the powers of the Suprerne Court to transfer cases from .one court to another are to be found in Article 139-A of the Constitution and section 406 of the Cr.P.C. The provisions envisaged either inter-state transfers of.cases i.e. from a court in one State to a court in another State or the with- drawal of a case by the Supreme Court to itself. Intra-State transfer among courts subordinate to a High Court inter-se or from a court subordinate to a High Court to the High Court is within the jurisdic- lion of the appropriate High Court. The attempt of counsel for the resondent is to justify the transfer by attributing the powers of the High Court under section 407 to the Supreme Court in its capacity as an appellate or revisional court. This argument overlooks that the powers of the Supreme Court, in disposing of an appeal or revision, are circumscribed by the scope of the proceedings before it. In this [1988) Supp. 1 S.C.R. A case, it is common ground that the question of transfer was not put in issue before the Supreme Court. 17. The reliance placed in this context on the provisio'ls con- tained in articles 140 and 142 of the Constitution and S. 401 read with S. 386 of the Cr.P.C. does not also help. Article 140 is only a provi- B sions enabling Parliament to confer supplementary powers on the Supreme Court to enable it to deal more effectively to exercise the jurisdication conferred on it by or under the Constitution. Article 142 is also not of much assistance. In the first place, the operative words in that article, again are "in the exercise of its jurisdiction." The Supreme Court was hearing an appeal from the order of discharge and connected matters. There was no issue or controversy or discussion C before it as to the comparative merits of a trial before a special judge vis-a-vis one before the High Court. There was only an oral request said to have been made, admittedly, after the judgment was announ- ced. Wide as the powers under article 141 are, they do not in my view, envisage an order of the type presently in question. The Nanavati case D (1961 SCR 497, to which reference was made by Sri Jethmalani, involved a totally different type of situation. Secondly, it is one of the contentions of the appellant that an order of this type, far from being necessary for doing complete justice in the cause or matter pending before the Court, has actually resulted in injustice, an aspect discussed a little later. Thirdly, however wide and plenary the language of the E article, the directions given by the Court should not be inconsistent with, repugnant to or in violation of the specific provisions of any statute. If the provisions of the 1952 Act read with article 139-A and Ss. 406-407 of the Cr.P.C. do not permitthe transfer of the case from a special judge to the High Court, that effect cannot be achieved indi- rectly. it is, therefore, difficult to say, in the circumstances of the case, that the Supreme Court can issue the impugned direction in exercise of the powers under Article 142 or under s. 407 available to it as an appellate court. 18. Learned counsel for the complainant also sought to support the order of transfer by reference to section 386 and 401 of the 1973 G Cr.P .C. He suggested that the Court, having set aside the order of discharge, had necessarily to think about consequential orders and that such directions as were issued are fully justified by the above provisions. He relied in this context on the decision of the Privy Council in Hari v. Emperor, AIR 1935 P.C. 122. It is difficult to accept this argument. Section 401 provides that, in the revision pending be- H fore it, the High Court can exercise any of the powers conferred on a A.R. ANTULAY v. R.S. NAYAK (RANGANATHAN, l.I court of appeal under section 386. Section 386, dealing with the pow- ers of the appellate court enables the court, in a case such as this: . (i) under clause (a), to alter or reverse the order under appeal/revi- sion; or {ii) under clause (e), to make any amendment or any conse- quential or incidental order that may be just or proper. The decision relied on by counsel, Hari v. Emperor, AIR 1935 P.C. 122, is of no assistance to him. In that case~the Additional Judicial Commissioner, who heard an appeal on a difference of opinion between two other judicial commissioner had come to the conclusion that the conviction had to be set aside. Then he had the duty to determine what should be done and S. 426 of the 1898 Cr.P.C. (corresponding to section 386 of the 1973 Cr.P.C.) exactly provided for the situation and empowered him: "to reverse the finding and sentence and acquit or dis- charge the accused or order him t<I be retried by a court of com'petent jurisdiction subordillate 10 such apellate Court." c In the present case, the Special Judge, Sri Sule, had discharged the accused because of his conclusion that the prosecution lacked the 11ecessary sanction. The conclusion of the Supreme Court that this conclusion was wrong meant, automatically, that the prosecution had been properly initiated and that the proceedings before the Special Judge should go on. The direction that the trial should be shifted to the High Court can hardly be described as a consequential or incidental order. Such a direction did not flow, as a necessary consequence of the conclusion of the court on the issues and points debated before it. I am, therefore, inclined to agree with counsel for the appellant that this Court was in error when it directed that the trial of the case should be before a High Court Judge. 19. It follows from the above discussion that the appellant, in consequence of the impugned direction, is being tried by a 'Court which has no jurisdiction-and which cannot be empowered by the Supreme Court-to try him. The continued trial before the High Court, therefore, infringes Article 21 of the Constitution. Denial of equality and violation of Article 21. 20. It was vehemently contended for the appellant that, by giv- ing the impugned direction, this Court has deprived the appellant of his fundamental rights. He has been denied a right to equality, c $UPREME COURT REPORTS inasmuch as his case has been singled out for trial by a different, though higher, forum as compared to other public servants. His funda- mental right under Article 21, it is said, has been violated, inasmuch as the direction has deprived him of a right of revision and first appeal to the High Court which he would have had from an order or sentence had he been tried by 'a Special Judge and it is doubtful whether he would have a right to appeal to this Court at all. It is pointed out that a right of first appeal against a conviction in a criminal case has been held, by this Court, to be a part of the.fundamental right guaranteed under Article 21 of the Constitution. It is not necessary for me to consider these arguments in view of my conclusion that the High Court could not have been directed to try the petitioner's case. I would, however, like to say that, in my opinion, the arguments based on Articles 14 and 21 cannot be accepted, in case it is to be held for any reason that the transfer of the apellant's case to the High Court was valid and within the competence of this Court. I say this for the follow- ing reason: If the argument is to be accepted, it will be appreciated, it cannot be confined to cases of transfer to the High Court of cases D under the 1952 Act but would also be equally valid to impugn the withdrawal of a criminal case tried in the normal course under the Cr.P.C. from a subordinate court trying it to the High Court by invok- ing the powers under section 407. To put it in other words, the argu- ment, in substance, ilssails the validity of secion 407 of the 1973 Cr.P .C. In my opinion, this attack has to be repelled. The section E cannot be challenged under Article 14 as it is based on a reasonable classificatio_n having relation to the objects sought to be achieved. Though, in general, the trial of cases will be by courts having the normal jurisdiction over them, the exigencies of the situation may require that they be dealt with by some other court for various reasons. Likewise, the nature of a case, the nature of issues involved and other circumstances may render it more expedient, effective, expeditious or desirable that the case should be tried by a superior court or the High Court_ itself. The power of transfer and withdrawal contained in s. 407 of the Cr.P .C. is one dictated by the requirements of justice and is, indeed, but an aspect of the supervisory powers of a superior court over courts subordinate to it: (see also sections 408 to G 411 of the Cr.P.C.). A judicial discretion to transfer or withdraw is vested in the highest court of the State and is made exercisable only in the circumstances set out in the section. Such a power is not only necessary and desirable but indispensable in the cause of the administ- ration of justice. The accused will continue to be tried by a court of equal or superior jurisdiction. Section 407(8) read with S. 474 of the H Cr.P.C. and section 8(3) of the 1952 Act makes it clear that he will be A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN, J.l tried in accocdance with the procedure followed by the original Court or ordinarily by a Court of Session. The accused will, therefore, suffer no prejudice by reason of the application of s. 407. Even ·if there is a differential treatment which causes prejudice, it is based on logical and acceptable considerations with a view to promote the interest of justice. The transfer or withdrawal of a case to another court or the High Court, in such circumstances, can hardly be said to result in hostile discrimination against the accused in such a case. 21. Considerable reliance was placed on behalf of the appellant on State v. Anwar Ali Sarkar, [1952] S.C.R. 284. Tbis decision seems to have influenced the learned judges before whom this appeal first came up for hearing in referring the matter to this larget Bench and has also been aplied to the facts and situation here by my learned brother, Sabyasachi Mukharji; J. But it seems to me that the said decision has no relevance here. There, the category of cases which were to be allocated to a Special Judge were not well defined; the selection of cases was to be made by the executive; and the procedure to be followed by the special courts was different from the normal criminal procedure. As already pointed out, the position here is entireiy different. The 1952 legislation has been enacted to give effect to the Tek Chand Committee and to remedy a state of affairs prevalent in respect of a well defined class of offences and its provisions con- stituting special judges to try offences of corruption is not under challenge. Only a power of transfer is being exercised by the Supreme Court which is sought to be traced back to the power of the High Court under s. 407. The vircs of that provision also is not being chalienged. What is perhaps being said is that the Supreme Court ought not to have considered this case a fit one for withdrawal for trial to the High Court. That plea should be and is being considered here on merits but c the plea that Artide 14 has been violated by the exercise of a power· F under s. 407 on the strength of Anwar Ali Sarkar's case wholly appears to be untenable. Reference may be made in this context to Kathi Raning Rawat v. The State of Saurashtra, I 1952] 3 S.C.R. 435 and Re: Special Courts Bill, 1978, [1979] 2 S,C.R. 476 and Shukla v. Delhi Administration, [1980] 3 S.C.R. 500, which have upheld the creation of special judges to try certain classes of offences. 22. It may be convenient at this place to refer to certain observa- tions by the Bench of this Court, while referring this matter to the larger Bench, in a note appended to their order on this aspect. The learned Judges have posed the following questions in paragraphs 4 arid 6~ili~n~: c "4. The Criminal Law Amendment Act, 1952 as its pream- ble says is passed to provide for speedier trial? Does not further speeding up of the case by transferring the case to the High Court for speedy disposal violate the principle laid down by seven learned Judges of this Court in Anwar Ali Sarkar's case ( 1952) S.C.R. 284 and result in violation of Article 14 of the Constitution? The following observa- tions of Vivian Bose, J. in Anwar Ali Sarkar's case at pages 366-387 of the Report are relevant: 'Tested in the light of these considerations, I am of opinion that the whole of the West Bengal Special Courts Act of 1950 offends the provisions of Article 14 and is therefore bad. When the froth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to my minci is the most important of all. We find men accused of heinous crimes called upon to answer for their lives and liberties. We find them picked out from their fellows, and however much the new procedure may give them a few crumbs of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim. It matters not to me, nor indeed to them and their families and their friends, whether this be done in good faith, whether it be done for the convenience of gov- ernment, whether the process can be scientifically classified and labelled, or whether it is an experiment in speedier trials made for the good of society at large. It matters now how lofty and laudable the motives are. The question with which I charge myself is, can fair-minded, reasonable, unbiassed and resolute men, who are not swayed by emo- tion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad.' (Underlining by us) Do not the above observations apply to judicial orders also? A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN. J.I 6. Does the degree of heinousness of the crime with which an accused is charged or his status or the influence that he commands iri society have any bearing on the applicability or the constriction of Article 14 or Article 21. ?" 23. In my opinion, the answers to the questions posed will, again, depend on whether the impugned direction can be brought within the scope of section 407 of the 1973 Cr.P.C. or not. Jf I am right in my conclusion that it cannot, the direction will clearly be contrary to the provisions of the Cr.P.C. and hence violative of Article 21. It could also perhaps be said to be discriminatory on the ground that, in the absence of not only a statutory provision but even any well defined policy or criteria, the only two reasons given in the order-namely, the status of the petitioner and delay in the progress of the trial-are inadequate to justify the special treatment meted out to the appellant. On the other hand, if the provisions of section 407 Cr.P.C. are applic- able, the direction will be in consonance with a procedure prescribed by law and hence safe from attack as violative of Article 21. The reasons given, in the context of the developme11ts in the case, can also be sought to be justified in terms of clauses (a), (b) or (c) of Section 407(1). In such an event, the direction will not amount to an arbitrary discrimination but can be justified as the exercise of a choice of courses permitted under a valid statutory classification intended to serve a public purpose. 24. The argument of infringment of article 21 is based essentially on the premise that the accused will be deprived, in cases where the trial is withdrawn to the High Court of a right of first appeal. This fear is entirely unfounded. I think Sri Jethmalani is right in contending that where a case is thus withdrawn and tried by the Court, the High Court c will be conducting the trial in the exercise of its extraordinary original criminal jurisdiction. As pointed out by Sabyasachi Mukharji, J., the old Presjdency-town High Courts once exercised original jurisdiction in criminal matters but this has since been abolished. One possible view is that now all original criminal jurisdiction exercised by High Court is only extraordinary original criminal' jurisdiction. Another possible view is that still High Courts do exercise oridnary original criminal jurisdiction in habeas corpus and contempt of court matters and also under some specific enactments (e.g. Companies' Act Ss. 454 It. and 633). They can be properly described as exercising extraordinary original criminal jurisdiction, where though the ordinary original crim- inal jurisdiction is vested in a subordinate criminal court c r special Judge, a case is withdrawn by the High Court to itself for trial. The A decision in Madura Tirupparankundram etc. v. Nikhan Sahib, 35 C.W.N. 1088, Kavasji Pestonji v. Rustomji Sorabji, AIR 1949 Bombay 42, Su[lil Chandra Roy and another v. The State, AIR 1954 Calcutta 305, People's Insurance Co. Ltd. v. Sardul Singh Caveeshar and others, AIR 1961 Punjab 87 and People's Patriotic Front v. K.K. Bir/a and others, [1984] Cr!. L.J. 545 cited by him amply support this contention. B If this ·be so, then Sri Jethmalani is also right in saying that a right of first appeal to the Supreme Court against the order passed by the High Court will be available to the accused under s. 374 ofthe 1973 Cr.P.C. In other words, in the ordinary run of criminal cases tried by a Court of Sessions, the accused will be tried in the first instance by a court subordinate to the High Court; he will then have a right of first appeal to the High Court and then can seek leave of the Supreme Court to C appeal to it under Article 136. In the case of a withdrawn cose, the accused has the privilege of being tried in the first instance by t~e High Court itself with a right to approach the apex Court by way of appeal. The apprehension that the judgment in the trial by the High Court, in the latter case, will be final, with only a chance of obtaining special D leave under article 136 is totally unfounded. There is also some force in the submission of Sri Jethmalani that, if that really be the position and the appellant had no right of appeal against the High Court's judgment, the Supreme Court will consider any petition presented under Article 136 in the light of the inbuilt requirements of Article 21 and dispose of it as if it were itself a petition of appeal from the E judgment. (see, in this context, the observations of this Court in Sadananthan v. Arunachalam, [1980] 2 S.C.R. 673. That, apart it may be pointed out, this is also an argument that would be valid in respect even of ordinary criminal trials withdrawn to the High Court under s. 407 of the Cr.P.C. and thus, like the previous argument regarding Article 14, indirectly challenges the validity of S.407 itself as infringing F Article 21. For the reasons discussed, I have come to the conclusion that an accused, tried directly by the High Court by withdrawal of his case from a subordinate court, has a right of appeal to the Supreme Court under s. 374 of the Cr.P.C. The allegation of an infringement of Article 21 in such cases is, therefore, unfounded. Natural Justice 25. The appellant's contention that the impugned direction is- sued by this Court on 16.2.1984 was in violation of the principles of natural justice appears to be well founded. It is really not in dispute before us that there was no whisper or suggestion in the proceedings before this Court that the venue of the trial should be shifted to the High Court. This direction was issued suo motu by the learned Judges H without putting it to the counsel for the parties that this was what they '~.' A.f,. ANTULAY v. R.S. NAYAK [RANGANATHAN. J.[ proposed to do. The difficulties created by observations or directions on issues not debated before the Court have been highlighted by Lord Diplock in Hadmor Productions Ltd. v. Hamilton, [1983] A.C. 191). In that case, Lord Denning, in the Court of Appeal, had in his judg- ment, relied on a certain passage from the speech of Lord Wedderburn in Parliament as reported in Hansard (Parliamentary Reports) in sup- port of the view taken by him. The counsel for the parties had had no inkling or information that recourse was likely to be.had by the Judge to this source, as it had been authoritatively held by the House of Lords in Davis v.·Johns, [1979] A.C. 264 thafthese reports should not be referred to by counsel or relied upon by the court for any purpose. Commenting on this aspect, Lord Diplock observed: "Under our adversary system of procedure, for a judge to disregard the rule by which counsel are bound has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice: the right of each to btl'informed of any point adverse to him that is going to be relied upon by the judge and to be given an opportunity of stating what his answer to it is. Jn the instant case, counsel for Hamilton and Bould complained that Lord Denning M.R. had selected one speech alone to rely upon out of many that had been made ….. and that, if he has counsel had known that (Lord Denning) was going to do that, not only would he have wished to criticise what Lord Wedderburn had said in his speech ….. but he would also have wished to rely on other speeches disagree- ing with Lord Wedderburn if he, as counsel, had been entitled to refer to Hansard ….. " The position is somewhat worse in the present case. Unlike the Hamilton case (supra) where the Judge had only used Hansard to deal with an issue the.it arose in the appeal, the direction in the present case was something totally alien to the scope of the appeal, on an issue that was neither raised nor debated in the course of the hearing and comp- letely unexpected. 26. Shri Jethmalani submitted that, when the judgment was announced, counsel for the complainant (present respondent) had made an oral request that the trial be transferred to ·the High Court c _, and that the Judges replied that they had already done that. He sub- mitted that, at that time and subsequently, the appellant could have protested and put forward his objections but did not and had thus c acquiesced in a direction which was, in truth, beneficial to him as this Court had only directed that he should be tried by a High Court Judge, a direction against which no one can reasonably complain. This aspect of the respondent's arguments will be dealt with later but, for the present, all that is necessary is to say that the direction must have come as a surprise to the appellant and had been issued without hearing him on the course proposed to be adopted. Conclusion 27. To sum up, my conclusion on issue A is that the direction issued by the Court was not warranted in law, being contrary to the special provisions of the 1952 Act, was also not in conformity with the principles of natural justice and that, unless the direction can be justified with reference to S. 407 of the Cr. P.C., the petitioner's fundamental rights under Articles 14 and 2 I can be said to have been infringed by reason of this direftion. This takes me on to the question whether it follows as a consequence that the direction issued can be, or should be, recalled, annulled, revoked or set aside by us now. B.CAN AND SHOULD THE DIRECTION OF 16.2.84 BE RECALLED? 28. It will be appreciated that, whatever may be the ultimate conclusion on the correctness, propriety or otherwise of the Court's direction dated 16.2.1984, that was a direction given by this Court in a proceeding between the same parties and the important and far- reaching question that falls for consideration is whether it is at all open to the appellant to seek to challenge the correctness of that direction at a later stage of the same trial. Is a review possible? 29. The first thought that would occur to any one who seeks a modification of an order of this Court, particularly on the ground that it contained a direction regarding which he had not been heard, would be to seek a review of that order under Article 137 of the Constitution read with the relevant rules. Realising that this would be a direct and straight forward remedy, it was contended for the appellant that the present appeal may be treated as an application for such review. 30. The power of review is conferred on this Court by Article 137 H of the Constitution which reads thus: A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN, J.I "Subject to the provisions of any law made by Parliament or any.rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it." It is subject not only to the provisions of any law made by Parliament (and there is no such law so far framed) but also to any rules made by this Court under Artie!<; 145. This Court has made rules in pursuance of art. 145 which are contained in Order XL in Part VIII of the Supreme Court Rules. Three of these rules are relevant for our present purposes. They read as follows: "(l) The Court may review its judgment or order, but no appliction for review will be entertained in a civil proceed- ing except on the ground mentioned in Order XL VII, rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record. (2) An application for review shall be by a petition, and 0 shall be filed within thirty days from the· date of the judg- ment or order sought to be reviewed. It shall set out clearly its grounds for review. (3) Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his pet- ition by additional written arguments. The court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to tbe same Judge or Bench of Judges that delivered the judgment or order sought to be revie.wed." 31. It is contended on behalf of the respondent that the present pleas of the appellant cannot be treated as an application for review, firstly, because they do not seek to rectify any error apparent on the face of the record; secondly, because the prayer is being made after the expiry of the period of thirty days mentioned in rule 2 and there is G no sufficient cause for condoning the delay in the making of the appli- cation and thirdly, for the reason that a review petition has to be listed as far as practicable before the same Judge or Bench of Judges that delivered the order sought to be reviewed and in this case at least two of the learned Judges, who passed the order on 16.2.1984, are still available to consider the application for review. These grounds may H now be considered. !1988] Supp. 1 S.C.R. 32. For reasons which I shall later discuss, I am 'of opinion that the order dated 16.2.1984 does not suffer from any error apparent on the face of the record which can be rectified on a review application. So far as the second point is concerned, it is common ground that the prayer for review has been made beyond the period mentioned in Rule 2 of Order XL of the Supreme Court Rules. No doubt this Court has B power to extend the time within which a review petition may be filed but learned counsel for the respondent vehemently contended that this is not a fit case for exercising the power of condonation of delay. It is urged that, far from this being a fit case for the entertainment of the application for review beyond the time prescribed, the history of the case will show that the petitioner has deliberately avoided filing a C review petition within the time prescribed for reasons best known to himself. 33. In support of his contention, learned counsel for the respon- dent invited our attention to the following sequence of events and made the following points: (a) The order of this Court was passed on 16.2.1984. At the time of the pronouncement of the said order, counsel for the pre- sent respondent had made a request that the trial of the case may be shifted to the High Court and the Court had observed that a direction to this effect had been included in the judgment. Even assuming that there had been no issues raised and no arguments advanced on the question of trans- fer at the time of the hearing of the appeals, there was nothing to preclude the counsel for the appellant, when the counsel for the complainant made the above request, from contending that it should not be done, or, at least, that it should not be done without further hearing him and pointing out this was not a matter which had been debated at the hearing of the appeal. But no, the counsel for the accused chose to remain quiet and did not raise any objection at that point of time. He could have filed a review application soon thereafter but he did not do so. Perhaps he considered, at that stage, that the order which after all enabled him to be tried by a High Court Judge in preference to a Special Judge was favourable to him and, therefore, he did not choose to object. (b) The matter came up before the trial judge on 13th March, 1984. The accused, who appeared in person, stated that he """' A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN, J.) did not want to engage any counsel "at least for the present': He would :10t put down his arguments in writing and when he argued the gravemen of his attack was that this Court's order transferring the trial from the Special Judge to the High Court was wrong on merits. Naturally, the learned Judge. found it difficult to accept the contention that he should go behind the orderof the Supreme Court. He rightly B pointed out that if the accused had any grievance to make, his proper remedy was to move the Supreme Court for review of its judgment or for such further directions or clarifications as may be expedient. Thus, as early as 13th March, 1984, Khatri, J., had given a specific opportunity to the accused to come to this Court and seek a review of the c direction. It can perhaps be said that on 16.2. 1984, when this Court passed the impugned direction, the appellant was not fully conscious of the impact of the said direction and that, therefore, he did not object to it immediately. But, by the 13th March, 1984, he had ample time to think about the matter and to consult his counsel. The appellant himself was D a barrister. He chose not to engage counsel but to argue himself and, even after the trial court specifically pointed out to him that it was bound by the direction of this Court under Arts. 141 annd 144 of the Constitution and that, if at all, his remedy was to go to the Supreme Court by way of review or by way of an application for clarification, he chose to take no E action thereon. c) On 16th March, 1984, Khatri, J. disposed of the preliminary objections raised by the accused challenging the jurisdiction and competence of this Court to try the accused. Counsel for the respondent points out that, at the time of the hearing, the F appellant had urged before Khatri, J. all the objections to the trial, which he is now putting forth. These objections have been summarised in paragraph 3 of the order passed by the learned Judge and each one of them has been dealt with elaborately by the learned Judge. It has been pointed out by him that the Supreme Court was considering not only the G appeals preferred by the accused and the complainant, namely, Cr!. Appeal Nos. 246, 247 and 356 of 1983 but also two revision petitions being C:R. Nos. 354 'and 359 of 1983 which had been withdrawn by the Supreme Court to itself for disposal along with Cr!. Appeal No. 356 of 1983. A little later in the order the learned Judge pointed out that, even c [1988) Supp. 1 S.C.R. assuming that in the first instance the trial can be conducted only by a Special Judge, the proceedings could be withdrawn hy the high Court to itself under powers vested in it under Article 228(a) of the Constitution as well as section 407 of the Cr.P .C. When the criminal revisions stood transferred to the Supreme Court (this was obviously done under Article 139-A though that article is not specifically mentioned in the judg- ment of the Supreme Court), the Supreme Court could pass the order under Article· 139-A read with Article 142. The learned Judge also disposed of the objections based on Arti- cle 21. He pointed out that-as against an ordinary accused person tried by a special judge, who gets a right of appeal to the High Court, a court of superior jurisdiction, with a further right of appeal to the Supreme Court under s. 374 of the Cr.P.C. and that an order of transfer passed in the interest of expeditious disposal of a trial was primarily in the interests of the accused and could hardly be said to be pre- judicial to the accused. Despite the very careful and fully detailed reasons passed by the High Court, the appellant did not choose to seek a review of the earlier direction. {d) Against the order of the learned Judge dated 16.3.1984 the complainant came to the Court because he was dissatisfied with certain observations made by the trial Judge in regard to the procedure to be followed by the High Court in pro- ceeding with the trial. This matter was heard in open court by same five learned Judges who had disposed of the matter earlier on 16.2.1984. The accused was represented by a senior counsel and the Government of Maharashtra had also engaged a senior counsel to represent its case. Even at this hearing the counsel for the appellant did not choose to raii;e any objection against the direction given in the order dated 16.2.1984. The appeal before the Supreme Conrt was for getting a clarification of the very order dated 16.2.1984. This was a golden opportunity for the appellant also to seek a review or clarification of the impugned direction, if really he had a grievance that he had not been heard by the Court before it issued the direction and that it was also contrary to the provisions of the 1952 Act as well as violative of the rights of the accused under Art. 21 of the Constitution. ( e) The petitioner instead filed two special leave petitions and a writ petition against the orders of Khatri, J. dated 13.3.1984 A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN, J.: and 16.3.1984. In the writ petition, the petitioner had mentioned that the impugned direction had been issued without hearing him. In these matters counsel for the accused made both oral and written submissions and all con- tentions and arguments, which have now been put forward, had been raised in the written arguments. The appeals and writ petition were disposed of by this Court. This Court naturally dismissed the special leave petitions pointing out that the High Court was quite correct in considering itself bound by the directions of the Court. The Court also .dismis- sed the writ petition as without merit. But once again it observed that the proper remedy of the petitioner was else- where and not by way of a writ petition. These two orders, according to the learned counsel for the respondent. conc- lude the matter against the appellant. The dismissal of the writ petition reminded the petiti_oner of his right to move the Court by other means and, though this advice was tendered as early as 17.4. 1984, the petitioner did nothing. So far as the special leave petition was concerned, its dismissal meant the affirmation in full of the decision given by Justice Khatri dismissing and disposing of all the objections raised by the petitioner before him. Whatever may have been the position on 16.2. 1984 or 16.3.1984, there was absolutely no explana- tion or justification for the conduct of the petitioner in failing to file an application for review between 17.4. 1984 and October, 1986. 34. Recounting the above history, which according to him fully c explained the attitude of the accused, learned counsel for the respon- dent submitted that in his view the appellant was obviously tryinll to avoid a review petition perhaps because it was likely to go before the same learned Judges and he did not think that he would get any relief and perhaps also because he might have felt that a review was not an . adequate remedy for him as, under the rules, it would be disposed of in chamber without hearing him once again. But, whatever may be the reason, it is submitted, the delay between April 1984 and October, 1986 stood totally unexplained and even now there was no proper G review petition before this Court. In the circumstances, it is urged that this present belated prayer for review. 111. 35. There is substance in these contentions. The prayer for ·review is being made very belatedly, and having regard to the cif- cumstances outlined above there is hardly any reason to condone the A delay in the prayer for review. The appellant was alive to all his pre- sent contentions as is seen from the papers in the writ petition. At least when the writ petition was dismissed as an inappropriate remedy, he should have at once moved this Court for review. The delay from April 1984 to October 1986 is totally inexplicable. That apart, there is also c validity in the respondent's contention that, even if we are inclined to condone the delay, the application will have to be heard as far as possible by the same learned Judges who disposed of the earlier mat- ter. In other words, that application will have to be heard by a Bench which includes the two learned Judges who disposed of the appeal on 16.2.1984 and who are still available in this Court to deal with any proper review application, that may be filed. However, since in my view, the delay has not been satisfactorily explained, I am of opinion that the prayer of the appellant· that the present pleas may be treated as one in the nature of a review application and the appellant given relief on that basis has to be rejected. Is a writ maintainable? 36. This takes one to a consideration of the second line of attack by the appellant's counsel. His proposition was that a judicial order of a court—even the High Court or this Court may breach the principles of natural justice or the fundamental rights and that, if it does so, it can be quashed by this Court in the exercise of its jurisdiction under Article 32. In other words, the plea would seem to be that the present pro- ceedings may be treated as in the nature of a writ petition to quash the impugned order on the above ground. The earliest of the cases relied upon to support this contention is the decision in Prem Chand Garg v. Excise Commissioner, [1963] Supp. 1 S.C.R. 885, which may perhaps be described as the sheet-anchor of the appellant's contentions on this point. The facts of that case have been set out in the judgment of Sabyasachi Mukharji, J. and need not be repeated. The case was heard by a Bench of five judges. Four of them, speaking through Gajen- dragadkar, J. held that Rule 12 of Order XXXV of the Supreme Court Rules violated Article 32 and declared it invalid. This also set aside an earlier order dated 12.12.1961 passed by the Court in pursuance of the rule calling upon the petitioner to deposit cash security. Sri Rao con- tended that this case involved two separate issues for consideration by the Court: (a) the validity of the rule and (b) the validity of the order dated 12.12.1961; and that the decision is authority not only for the proposition that a writ petition under Article 32 could be filed to im- pugn the constitutional validity of a rule but also for the proposition that the Court could entertain a writ petition to set aside a judicial A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN, J.] order passed by the Court earlier on discovering that it is inconsistent A with the fundamental rights of the petitioner. Counsel submitted that an impression in the minds of some persons that the decision in Prem Chand Garg is not good law after the decision of the nine-Judge Bench in Naresh Sridhar Mirajkar v. State, [1966] 3 S.C.R. 744 is incorrect. He submitted that, far from Garg's case being overruled, it has been confirmed in the later case. 37. Mirajkar was a case in which the validity of an interlocutory order passed by a judge of the Bombay High Court pertaining to the publication of reports of the proceedings in a suit pending before him was challenged by a journalist as violating his fundamental rights un- der Article 19 of the Constitution. The matter came to the Supreme Court by way of a writ petition under Article 32. The validity of the order was upheld by the majority of the Judges while Hidayatullah J. dissented. In this connection it is necessary to refer to a passge at p. 767 in the judgment of Gajendragadkar, C.J. c "Mr. Setalvad has conceded that if a court of competent jurisdiction makes an order in a proceeding before it, and the order is inter-partes, its validity cannot be challenged by invoking the jurisdiction of this Court under Art: 32, though the said order may affect the aggrieved party's fondamental rights. His whole argument before us has been that the impugned order affects the fundamental rights of a stranger to the proceeding before the Court; and that, he contends, justifies the petitioners in moving this Court und.er Arte. 32. It is necessary to examine the validity of this arp,ument." The question before the Supreme Court was thus as to whether, even at the instance of a stranger to the earlier proceedings, the earlier order could be challenged by means of a writ petition under Article 32. One of the questions that had to be considered by the Court was whether the judicial order passed by the learned judge of the High Court was amenable to be writ jurisdiction of the Court under Article 32. On this question, the judges reacted differently: (i) Gajendragadkar, CJ and Wanchoo, Mudholkar, Sikri and Ramaswamy, JJ. had this to say: "The High Court is a superior Court of Record and it is for it to consider whether any matter falls within its jurisdiction c or not. The order is a judicial order and if it is erroneous, a person aggrieved by it, though a stranger, could move this Court under Article 136 and the order can be corrected in appeal but the question about the existence of the said jurisdiction as well as the validity or the propriety of the order cannot be raised in writ proceedings under article 32.'; (ii) Sarkar J. also concurred in the view that this Court had no power to issue a certiorari to the High Court. He observed: "I confess the question is of some haziness. That haziness arises because the courts in our country which have been given the power to issue the writ are not fully analogous to the English courts having that power. We have to seek a way out for ourselves. Having given the matter my best consideration, I venture to think that it was not contemp- lated that a High Court is an inferior court even though it is a court of limited jurisdiction. The Constitution gave power to the High Court to issue the writ. In England, an inferior court could .never issue the writ. I think it would be abhorrent to the principle of certiorari if a Court which can itself issue the writ is to be made subject to be corrected by a writ issued by another court. When a court has the power to issue the writ, it is not according to the fundamental principles of certiorari, an inferior court or a court of limited jurisdiction. It does not cease to be so because another Court to which appeals from it lie has also the power to issue the writ. That should furnish strong justifi- cation for saying that the Constitution did not contemplate the High Courts to be inferior courts so that their decisions would be liable to be quashed by writs issued by the Supreme Court which also had been given power to issue the writs. Nor do .I think that the cause of justice will in any manner be affected if a High Court is not made amenable to correct by this Court by the issue of the writ. In my opinion, therefore, this Court has not power to issue a certiorari to a High Court." (iii) BachawatJ. held: "The High Court has jurisdiction to decide if it could rest- rain the publication of anv document or information relat- ing to the trial. of a pendmg suit or concerning which the A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN. J.I suit is brought, if it erroneously assume a jurisdiction not vested in it, its decision may be set aside in appropriate proceedings but the decision is not open to attack under Article 32 on the ground that it infringes the fundamental right under Article 19( l)(a). If a stranger is prejudiced by an order forbidding the publication of the report of any proceeding, his proper course is only to apply to the Court to lift the ban." (iv) Justice Shah thought that, in principle, a writ petition could perhaps be filed to challenge an order of a High Court on the ground that it violated the fundamental rights of the petitioner under Articles 20, 21. and 22 but he left the question open. He, however, concluded that an order of the nature in issue before the Court could not be said to infringe Article 19. 38. Hidayatullah J., as His Lordship then was, however, dissen- ted. He observed: "Even assuming the impugned order means a temporary suppression of the evidence of the witness, the trial Judge had no jurisdiction to pass the order. As he passed no recorded order, the appropriate remedy (in fact the only effective remedy) is to seek to quash the order by a writ under Article 32. There may be action by a Judge which may offend the fundamental rig'its under articles 14, 15, 19, 20, 21 and 22 and an appeal to this Court will not only be practicable but will also be an ineffective remedy and this Court can issue a writ to the High Court to quash its order under Article 32 of F the Constitution. Since there is no exception in Article 32 in respect of the High Courts there is a presumption that the High Courts are not excluded. Even with the enactment of Article 226, the power which is conferred on the High Court is not in every sense a coordinate power and the implication of reading articles 32, 136 and 226 together is G that there is no sharing of the powers to issue the preroga- tive writs possessed by this Court. Under the total scheme of the Constitution, the subordination of the High Courts to the Supreme Court is not only evident but is logical." His Lordship proceeded to meet an objection that such a course might c cast a slur on the High Courts or open the floodgates of litigation. He observed: "Article 32 is concerned with Fundamental Rights and Fundamental Rights only. It is not concerned with breaches of law which do not involve fundamehtal rights directly. The ordinary writs of certiorari, mandamus and prohibition can only issue by enforcement of Fundamental Rights. A clear cut case of breach of Fundamental Right alone can be the basis for the exercise of this power. I have already given examples of actions of courts and judges which are not instances of wrong judicial orders capable of being brought before this court only by appeal but breaches of Fundamental Rights clear and simple. Denial of equality as for example by excluding members of a particular party or of a particular community from the public court room in a public hearing without any fault, when others are allowed to stay on would be a case of breach of fundamental right of equal protection given by this Constitution. Must an affected person in such a case ask the Judge to write down his order, so that he may appeal against it? Or is he expected to ask for special leave from this Court? If a High Court judge in England acted improperly, there may be no remedy because of the limitations on the rights of the sub- ject against the Crown. But in such circumstances in Eng- land the hearing is considered vitiated and the decision voidable. This need not arise here. The High Court in our country in similar circumstances is not immune because there is a remedy to move this court for a writ against discriminatory treatment and this Court should not in a suitable case shirk to issue a writ to a High Court Judge, who ignores the funda.nental rights and his obligations under the Constitution. Other cases can easily be imagined under Article 14, 15, 19, 20, 21and22 of the Constitution, in which there may be action by a Judge which may offend the fundamental rights and in which an appeal to this Court will not only be not practicable but also quite an ineffective remedy. We need not be dismayed that the view J take means a slur on the High Courts or that this Court will be flooded with petitions under Article 32 of the Constitution. Although the High Courts possess a power to interfere by way of high A.R .. ANTULAY v. R.S. NAYAK [RANGANATHAN, J.] prerogative writs of certiorari, mandamus and prohibition, such powers have not been invoked against the normal and routine work of subordinate courts and tribunals. The reason is that people understand the difference between an approach to the High Court by way of appeals etc. and approach for the purpose of asking for writs under Article 226. Nor have the High Courts spread a Procrustean bed for high prerogative writs for all actions to lie. Decisions of the courts have been subjected to statutory appeals and revisions but the losing side has not charged the Judge with a breach of fundamental rights because he ordered attach- ment of property belonging to a stranger to the litigation or by his order affected rights of the parties or even strangers. This is beca.use the people understand the difference bet- ween normal proceedings of a civil nature and proceedings in which there is a breach of fundamental rights. The courts acts, between parties and even between parties and stran- gers, done impersonally and objectively are challengeable under the ordinary law only. But acts which involve the court with a fundamental right are quite different." One more passage from the judgment needs to be quoted. Observed the learned Judge: c "I may dispose of a few results which it was suggested, might flow from my view that this Court can issue a high prerogative writ to the High Court for enforcement of fundamental rights. It was suggested that the High Courts might issue writs to this Court and to other High Courts and one Judge or Bench in the High Court and the Supreme Court might issue a writ to another judge or F Bench in the same Court. This is an erroneous assumption. To begin with High Courts cannot issue a writ to the Supreme Court1because the writ goes down and not up. Similarly, a High Court cannot issue a writ to another High Court. The writ does not go to a court placed on an equal footing in the matter of jurisdiction xx xx xx I must hold that this English practice of not issuing writs in the same court is in the very nature of things. One High Court will thus not be able to issue a writ to another High c (19881 Supp. 1 S.C.R. Court nor even to a court exercising the powers of the High Court. In so far as this Court is concerned, the argument that one Bench or one Judge might issue a writ to another Bench or Judge, need hardly be considered. My opinion gives no support to such a view and I hope I have said nothing to give countenance to it. These are imaginary fears which have no rea!ity either in law or in fact." 39. I have set out at length portions from the judgment of Hidayatullah, J. as Shri Rao placed considerable reliance on it. From the above extracts, it will be seen that the majority of the Court was clearly of opinion that an order of a High Court cannot be challenged by way of a writ petition under Article 32 of the Constitution on. the ground that it violates the fundamental rights, not even at the instance of a person who was not at all a party to the proceedings in which the earlier order was passed. Even Hidayatullah, J. has clearly expressed the view that, though a writ of certiorari might issue to quash the order of a High Court in appropriate case, it cannot lie from a Bench of one court to another Bench of the same High Court. Subba Rao, C.J. has also made an observation to like effect in regard to High Court Benches inter se in Ghu/am Sarwarv. Union, [196712 S.C.R. 271. The decision in Prem Chand Garg, seems to indicate to the contrary. But it is clearly distinguishable and has been distinguished by the nine judge Bench in Mirajkar. The observations of Gujendragadkar, C.J. (at p. 766), and Sarkar, J. (at p. 780), be seen in this context. In that case, it is true that the order passed by the Court directing the appellant to deposit security was also quashed but that was a purely consequential order which followed on the well-founded challenge to the validity of the rule. Hidayatullah, J. also agreed that this was so and explained that the judicial decision which was based on the rule was only revised. (p. 790). 40. Sri Rao also referred to Sadhanatham v. Arunachalam, [19801 2 S.C.R. 873. In that case, the petitioner was acquitted by the High Court, in appeal, of charges under section 302 and 148 of the Indian Penal Code. The brother of the deceased, not the State or the informant, petitioned this court under Article 136 of the, Constitution for special leave to appeal against the acquittal. Leave was granted and his appeal was eventually allowed by the High Court. The judgment of the High Court was set aside and the conviction and sentence imposed by the trial court under section 302 was upheld by the Supreme Court in his earlier decision reported in [1979] 3 S.C.R. 482. Thereupon, the petitioner filed a writ petition under Article 32 of the Constitution, A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN, J.] challenging the validity of the earlier order of this Court. Eventually, the petition was dismissed on the merits of the case. However, learned counsel for the appellant strongly relied on the fact that in this case a Bench of five judges of this Court entertained a petition under Article 32 to reconsider a decision passed by it in an appeal before the Court. He submitted that it was inconceivable that it did not occur to the learned judges who decided the case that, after Miraikar, a writ peti- tion under Article 32 was not at all entertainable. He, therefore, relied upon this judgment as supporting his proposition that in an appro- priate case this court can entertain a petition under Article 32 and review an earlier decision of this court passed on an appeal or on a writ petition or otherwise. This decision, one is constrained to remark, is of no direct assistance to the appellant. It is no authority for the proposi- tion that an earlier order of the court could be quashed on the ground that it offends the Fundamental Right. As the petition was eventually dismissed on the merits, it was not necessary for the court to consider whether, if they had come to the conclusion that the earlier order was mcorrect or invalid, they would have interfered therewith on the writ petition filed by the petitioner. 41. Two more decisions referred to on l)ehalf of the appellant may be touched upon here. The first was the decision of this Court in Attorney-General v. Lachma Devi, AIR 1986 S.C. 467. In that case the High Court had passed an order that certain persons found guilty of murder should be hanged in public. This order was challenged by a "E writ petition filed under article 32 by the Attorney-General of India, on the ground that it violated Article 21 of the Constitution. This petition was allowed by this Court. The second decision. on which reliance was placed is that in Sukhdas v. Union Territory, [1986) 2 S.C.C. 401. In that case the petitioner, accused of a criminal offence had not been provided with legal assistance by the court. The Supreme Court pointed out that this was a constitutional lapse on the part of the court and that the conviction on the face of the record suffered from a fatal infirmity. These decisions do not carry the petitioner any further. Sukhdas was a decision on an appeal and Lachma Devi does not go beyond the views expressed by Hidayatullah, J. and Shah, J. in Mirajkar. 42. On a survey of these decisions, it appears to me that Prem Chand Garg cannot be treated as an authority for the proposition that an earlier order of this Court could be quashed by the issue of a writ on the ground that it violate<;! the fundamental rights. Mirajkar clearly precludes such a course. It is, therefore, not possible to accept the 11988] Supp. 1 S.C.R. appellant's plea that the direction dated 16.2.1984 should be quashed on the grounds put forward by the petitioner. Inherent power to declare orders to be null and void 43. The next line of argument of learned counsel for the appel- lant is that the order dated 16.2.1984, in so far as it contained the impugned direction, was a complete nullity .. Being an order without jurisdiction, it could be ignored by the person affected or challenged by him at any stage of the proceedings before any Court, particularly in a criminal case, vide Dhirendra Kumar v. Superintendent, 11955].1 S.C.R. 224. Counsel also relied on the following observations made in C Kiran Singh v. Chaman Paswan, IAIR 1955 S.C.R. 117.] "The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of Section 11 of the Suits Valuation Act is on that position. It is a fundamental princple well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority o/ the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the applicatbn of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgments and decree would be nullities." (emphasis added) He also extensively quoted from the dicta of this Court in M. L. Sethi v. R.P. Kapur, 11973] 1 S.C.R. 697, where after setting out the speeches G of Lord Reid and Lord Pearce in Anisminic Ltd. v. Foreign Compensa- tion Commissioner, I 1969] 2 A.C. 147 this Court observed: "The dicta of the majority of the House of Lords in the above case would show the extent to which 'lack' and 'excess' of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN, J.[ traditional concept of "jurisdiction". The effect of the dicta in that case is to reduce the difference between jurisdic- tional error and error of law within jurisdiction almost to vani>hing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously clos,e to. saying t_hat there is jurisdiction if the decision is right in law but none if it is wrong. Almost any inisconsiruction of a statute can be represented as "basing their decision on a matter with which they have no right to deal", "impose an unwarranted condition" or "addressing themselves to a wrong question." The major- ity opinion in the case leaves a Court or Tribunal with virtually no margin of legal error .. Whether there is excess or jurisdiction or merely error within jurisdiction can be .determined only by construing the empowering statute, which will give little guidance. It is really a question of how much latitude the Court is prepared to allow. In the end it can only be a value judgment (see R.W.R. Wade, "Con- stitutional and Administrative Aspects of the Anisintic case", Law Quarterly Review, Vo. 85, 1969 p. 198). Why is it that a wrong decisran on a question of limitation or res judicata was treated as a jurisdictional error and liable to be interfered with in revision? It is a bit difficult to under- stand how an erroneous decision on a question of limitation or res judicata could oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was considered as vital by the Court. And there is no yardstick to determine the magnitude of the error other than the opinion of this Court." He also referred to Badri Prasad v. Nagarmal, [1959) 1 Supp. S.C.R. c 769 which followed the clear law laid down in Surajmul Nagarmul v. Triton Insurance Co. Ltd., [1924) L.R. 52 I.A. 126, Balai Chandra Hazra v. Shewdhari Jadav, [1978) 3 S.C.R. 147 which followed Ledgard v. Bull, {L.R. 13 I.A. 134; Meenakshi Naidu v. Subratnaniya Sastri, L.R. 14 I.A. 140 and Sukhrani v. Hari Shankar, [1979) 3 S.C.R 671. Sri Rao, citing a reference from Halsbury's Laws of England (4th Edition) Vol. X, para 713, pages 321'2, contended that the High Court's jurisdiction clearly stood excluded bys. 7(1) of the 1~52 Act and, hence, the direction of the Supreme Court was als.o one without jurisdiction. [1988) Supp. 1 S.C.R. 44. In dealing with this contention, one important aspect of the concept of jurisdiction has to be borne in mind. As pointed out by Mathew J. in Kapur v. Sethi, (supra), the word "jurisdiction is a verbal coat of many colours.". It is used in a wide and broad sense while dealing with administrative or quasi-judicial tribunals and subordinate c courts over which the superior courts exercise a power of judicial review and superintendence. Then it is only a question of "how much latitude the court is prepared to allow" and "there is no yardstick to determine the magnitude of the error other than the opinion of the court." But the position is different with superior courts with unlimi- ted jurisdiction. These are always presumed to act with jurisdiction and unless it is clearly shown that any particular order is patently one which could not, on any conceivable view of its jurisdiction, have been passed by such court, such an order can neither be ignored nor even recalled, annulled, revoked or set aside in subsequent proceedings by the same court. This distinction is well brought out in the speeches of Lord Diplock, Lord Edmund-Devier and Lord Scarman in Re. Racal Communications Ltd., [1980] 2 A.E.R. 634. In the interests of brevity, I resist the temptation to quote extracts from the speeches here. 45. In the present case, the order passed is not one of patent lack of jurisdiction, as I shall explain later. Though I have come to the conclusion, on considering the arguments addressed now before us, that the direction in the order dated 16.2.1984 cannot be justified by reference to Article 142 of the Constitution or S. 407 of the 1973.Cr. P.C., that is not an incontrovertible position. It was possible for another court to give a wider interpretation to these provisions and come to the conclusion that surh an order could be made under those provisions. If this Court had discussed the relevant provisions and specifically expressed such a conclusion, it could not have been mod- ified in subsequent proceedings by this Bench merely because we are inclined to hold differently. The mere fact that the direction was given, without an elaborate discussion, cannot render it vulnerable to. such review. 46. Shri P.P. Rao then placed considerable reliance on the ob- G servations of the Privy Co.uncil in Isaacs v. Robertson, [1984] 3 A.E.R. 140 an appeal from a decision of the Court of Appeal of St. Vincent and the Grenadines. Briefly the facts were that Robertson had obtained· an interim injunction against Isaacs· and two others on ;I 31.5.1979 which the latter refused to obey. The respondents motion for committal of the appellant for conterr;pt was dismissed by the High H Court of Saiµt Vincent. The Court of Appeal allowed the respondents at' kR. ANTULAY v. R.S. NAYAK [RANGANATHAN, J.[ application; the appellants were found to be in contempt and also asked to pay respondents costs. However, no penalty was inflicted because the appellant would have been entitled to succeed on an appli- cation for setting aside the injunction, has he filed one. The main attack by the appellant on the Court of Appeal's judgment was based on the contention that, as a consequence of the operation of certain rules of the Supreme Couri of St. Vincent, the interlocutory injunction granted by the High Court was a nullity: so disobedience to it could not constitute a contempt of court. Lord Diplock observed: Glosgow J. accepted this contention, the Court of Appeal rejected it, in their Lordships' view correctly, on the short and well established ground that an order made by a court c of unlimited jurisdiction, such as the High Court of Saint Vincent must be obeyed unless and until it has been. set aside by the court. For this proposition Robotham AJA cited the passage in the judgment of Romer L.J. in Hadkinson v. Hadkinson, [1952] 2 All. E.R. 567 at 569, (1952) P. 285 at 288. It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a Court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases E where the person affected by an order believes it to be irregular or even void. Lord Cotteniiam, Leven to cases where the person affected by an order believes it to be irregular or even void. Lord Cotteniiam, L.C. said in Al; Chuck v. Cremer, [1946] 1 Coop Temp Cott 338 at 342, 47 ''" tt E.R. 884 at 855: "A party, who knows of an order, whether F ' -~ null or valid, regular or irregular, cannot be permitted to disobey it ….. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge ,;;i.. whether an order was null or valid-whether it was regular i or irregular. That they should come to the court and not take upon themselves to determine such a question. That G .";j the course of a party knowing of an order, which was null or ·i irregular, and who might be affected by it, was plain. He l should apply to the Court that it might be discharged. As long as it existed it must not be obeyed." Such being the ff nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who dis- r c obeys an order of the court …. .is in contempt and may be published by committal or attachment or otherwise. It is in their Lordships view, says aH that needs to be said on this topic. It is not itself sufficient reason for dismissi~g this appeal. Having said this, the learned.Law Lord proceeded to say: "The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind, what they do support is the quite different proposition that there is a category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deals expressly with proceedings to set aside orders for irregularity and give to the Judge a discretion as to the order he will make. The judges in the case that have drawn the distinction between the two types of orders have cauti- ously refrained from seeking to lay down a comprehensive definition of defects that bring an order in the category that attracts ex debito justitiae the right to have it set aside save that specifically it includes orders that have been obtained in breach of rules of natural justice. The contrasting legal concepts of voidness and voidability form part of the Eng- lish law of contract. They are inapplicable to orders made by a court of unlimited jurisdiction in the course ofconten- tions litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it on application to that court, if it is regular it can only be set aside by an appellate court on appeal if there is one to which an appeaflies." Sri Rao strongly relied on this passage and, modifying his earlier, G . somewhat extreme, contention that the direction given on 16.2.1984 being a nullity and without jurisdiction could be ignored by all concerned-even by the trial judge-he contended, on the strength of these observations. that he was at least entitled ex debito justitiae to come to this Court and request the court, in the interests of justice, to set aside the earlier order "without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irre- ' ,. , . A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN . .I.[ gularity", if only on the ground that the order had been made in breach of the principles of natural justice. Violation of the prindples of natural justice, he contended, renders the direction a nullity without any further proof of prejudice (see Kapur v. Jagmohan, [1981] 1 S.C.R. 746 at 766). 47. Learned counsel contended, in this context, that the fact the direction had been given in the earlier proceedings in this very case need not stand in the way of our giving relief, if we are really satisfied that the dir~ction had been issued per incuriam, without complying with the principles of natural justice and purported to confer a jurisdic- tion on the High Court which it did not possess. In this context he relied on certain decisions holding that an erroneous decision on a point of jurisdiction will not constitute res judicata:In Mathura Prasad v. Dossibai, (1970) 3 S.C.R. 830, this Court observed: "A question relating to the jurisdiction of a Court cannot be deemed to have been finally ·determined by an errone- ous decision of the Court. If by an erroneous interpretation of'the statute, the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly, by an erroneous decision, if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subse- quent litigation is the same or otherwise. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be re-opened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent pro- ceeding between the same parties. xxxxx xxxxx Where, however the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the court sanctioning something which is illegal, by resor to the c rule of res judicata a party affected by the decision will not c [1988] Supp. I S.C.R. be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot • supersede the law of the land." Counsel also relied on the decision of this Court in Chu/am Sarwar v. Union of India, [1965] 2 S.C.C. 271, where it was held that the princi- ple of constructive res judiaata was not applicable to habeas corpus proceedings. He also referred to the observations of D.A. Desai J. in Soni Vrijlal Jethalal v. Soni Jadavji Govindji, AIR 1972 Guj. 148 that no act of the court or irregularity can come in the way of justice being done and one of the highest and the first duty of all courts is to take care that the act of the court does no in jury to the suitors. He also made reference to tffe maxim that an ;i,ct of, or mistake on the part, of a court shall cause prejudice to no one, vide: Jang Singh v. Brij Lal, [ 1964] 2 S.C.R. 145 at p. 159. Relying on these decisions and passages from various treatises which I do not consider it necessary to set out in in extenso here, Sri Rao contended that this court should not consider itself bound by the earlier order of the Bench or any kind of technical- ity where the liberty of an individual and the rights guaranteed to him under Articles 14 and 21 of the Constitution are in is~ue. It is urged thai, if this Court agrees with him that the direction dated 16.2.1984 was an illegal one, this Court should not hesitate nay, it should hasten-to set aside the said order and repair the in justice done to the appellant without further delay. On the other hand, Sri Jethmalani vehemently urged that the present attempt to have the entire matter reopened constitutes a gross abuse of the process of court, that it is well settled that the principle of res judicata is also available in criminal matters (vide Bhagat Ram v. State, [1972] 2 S.C.C. 466 and State v. Tara Chand, [1973] S.C.C. Crl. 774) that in the United States the principle of res judicata governs even jurisdictional issues and that "the slightest hospitality to the accused's pleas will lead to a grave miscarriage of justice and set up a precedent perilous to public interest." 48. I have given careful· thought to these contentions. The appel- lant's counsel has relied to a considerable extent on the maxim "actus curiae neminem gravabit" for contending that it is not only within the power, but a duty as well, of this Court to correct its own mistakes in order to see that no party is prejudiced by a mistake of the Court. I am not persuaded that the earlier decision could be reviewed on the appli- cation of the said maxim. I share the view of my learned brother Venkatachaliah, J. that this maxim has very limited application and that it cannot be availed of to correct or review specific conclusions A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN. J.[ arrived at in a judicial decision. My. brother Venkatachaliah, J. has further taken the view that this Court cannot exercise any inherent powers for setting right any in justice that may have been caused as a result of an earlier order of the Court. While alive to the consideration that "the highest court in the land should not, by technicalities of procedure, forge fetters on its own feet and disable itself in cases of serious miscarriages of justice", he has, nevertheless, come to the conclusion that "the remedy of the appellant, if any, is by recourse to article 137 and nowhere else." It is at this point that I.would record a dissent from his opinion. In my view, the decisions cited do indicate that situations can and do arise where this.Court may be constrained to recall or modify an order which has been passed by it earlier and that when ex facie there is something radically wrong with the earlier order, this Court may have to exercise its plenary and inherent powers to recall the earlier order without considering itself bound by the nice technicalities of the procedure for getting this done. Where a mistake is £ommitted by a subordinate court or a High Court, there are ample powers in this Court to remedy the situation. But.where the mistake is in an earlier order of this Court, there is no way. of having it corrected except by approaching this Court. Sometimes, the remedy sought can b.e brought within the four corners of the procedural law in which event there can be no hurdle in the way of achieving the desired result. But the mere fact that, for some reason, the conventional remedies are . not available should not, in my view, render this Court powerless to give relief. As pointed oui by Lord Diplock in Isaac v. Robertson, I 1984) 3 A.E.R. 140, it may not be possible or prudent to lay down a comprehensive list of defects that will attract the ex debito justitiae relief. Suffice it to say that the court can grant relief where there is some manifest illegality or want of jurisdiction in the earlier order or some palpable in justice is shown to have resulted. Such a power can be traced either to article 142 of the Constitution or to the powers inhe- rent In this Court as the apex court and the guardian of the Consti- tution. 49. It is, however, indisputable that such power has to be exer- cised in the "rarest of rare" cases. As rightly pointed out by Sri Jeth- malani, there is great need for judicial discipline of the highest order in exercising such a power, as any laxity in this regard may not only impair the eminence, dignity and integrity of this Court but may also lead to chaotic consequences. Nothing should be done to create an impression that this Court can be easily persuaded to alter its views on any matter a'ld that a larger Bench of the Court will not only be able to reverse the precedential effect of an earlier ruling but may also be c [1988] Suop. 1 S.C.R. A inclined to go back on it and render it ineffective in its application and binding nature even in regard to subsequent proceedings in the same case. In Bengal Immunity Company Limited v. The State of Bihar and Ors., [1955] 2 S.C.R. 603, this Court held that it had the power, in appropriate cases, to reconsider a previous decision given by it. While concurring in this conclusion, Venkatarama Ayyar, J. sounded a note B of warning of consequences which is more germane in the present context: c "The question then arises as to the principles on which and the limits within which this power should be exercised. It is of course not possible to enumerate them exhaustively, nor is it even desirable that they should not crystallised into rigid and inflexible rules·. But one principle stands out promi- nently above the rest, and that is that in general, there should be finality in the decisions of the highest courts in the land, and that is for the benefit and protection of the public. In this connection, it is necessary to bear in mind that next to l'egislatJve enactments, it is decisions of Courts that form the most important source of law. It is on the faith of decisions that rights are acquired and obligations incurred, and States and subjects alike shape their course of action. It must greatly impair the value of the decisions of this Court, if the notion came to be entertained that there was nothing certain or final about them, which must be the consequence if the points decided therein came to be re-considered on the merits every time they were raised. It should be noted that though the Privy Council has repea- tedly declared that it has the power to reconsider its deci- sions, in fact, no instance has been quoted in which it did. actually reverse its previous decision except in ecclesiasti- cal cases. If that is the correct position, then the power to reconsider is one which should be exercised very sparingly and only in exceptional circumstances, such as when a material provision of law had been overlooked, or where a fundamental assumption on which the decision is based turns out to be mistaken. In the present case, it is not suggested that in deciding the question of law as they did in The State of Bombay v. The United Motors (India) Ltd., [ 1953] S.C.R. 1069 the learned Judges ignored any material provisions of law, or were under any misapprehension as to a matter fundamental to the decision. The arguments for the appellant before us were in fact only a repetition of the A.R. ANTULAY v. R.S. NAYAK [RANGANATHAN, J.] very contentions which were urged before the learned Judges and negatived by them. The question then resolves itself to this. Can we differ from a previous decision of this Court, because a view contrary to the one taken therein appears to be preferable? I would unhesitatingly answer it in the negative, not because the view previously taken must necessarily be infallible but because it is important in public interest that the law declared should be certain and final rather than that it should be declared in one sense· or the other. That, I conceive, in the reason behind article 141. There are questions of law on which it is not possible to avoid difference of opinion, and the present case is itself a signal example of it. The object of article 141 is that the decisions of this Court on these questions should settle the controversy, and that they should be followed as law by alJ the Courts, and if they are allowed to be reopened because a different view appears to be the better one, then the very purpose with which article 141 has been enacted will be defeated, and the prospect will have been opened of litig- ants subjecting our decisions to a continuous process of attack before successive Benches in the hope that with changes in the personnel of the Court which time must inevitably bring, a different view might find acceptance. I can imagine nothing more damaging to the prestige of this Court or to the value of its· pronouncements. In James v. Commonwealth, 18 C.L.R. 54, it was observed that a ques- tion settled by a previous decision should not be allowed to be reopened "upon a mere suggestion that some or all of c · the Members of the later Court might arrive at a different conclusion if the matter was res integra. Otherwise, there would be grave danger of ~ant of continuity in the inter- pretation of the Jaw" (per Griffiths, C.J. at p. 58). It is for this reason that article 141 invests decisions of this Court with special authority, but the weight of that authority can only b~ what we ourselves give to it." Even in the context of a power of review, properly so called, Ven- kataramiah, J. had this to say in Sheonandan Paswan v. State of Bihar &.Ors., I 1987] 1 S.C.C. 288: 'The review petition was 'admitted after the appeal had ·been dismissed. only because Nandini Satpathy cases, (1987 · 1 S.C.C. 269 and 1987 1 S.C.C. 279) had been subsequently H c [1988) Supp. 1 S.C.R. referred to a larger bench to review the .earlier decisions. When the earlier decisions are allowed to remain intact, there is no justification to reverse the decision of this Court by which the appeal had already been dismissed. There is no warrant for this extraordinary procedure to be adopted in this case. The reversal of the earlier judgment of this Court by this process strikes at the finally of judgments of this Court and would amount to the abuse of the power of review vested in this Court, particularly in a criminal case. It may be noted that no other court in the country has been given the power of review in criminal cases. I am of the view that the majority judgment of Babarul Islam and R.B. Misra, JJ. should remain undisturbed. This case cannot be converted into an apeal against the earlier decision of this Court." The attempt of the appellant here is more far-reaching. He seeks not the mere upsetting of a precedent of this Court nor the upsetting of a decision of a High Court or this Court in accordance with the normal procedure. What be wants from us is a declaration that an order passed by a five judge Bench is wrong and that it should, in effect, be annulled by us. This should not be done, in my view, unless the earlier order is vitiated by a patent lack of jurisdiction or has resulted in grave in justice or has clearly abridged the fundamental rights of the appel- lant. The question that arises is whether the present case can be brought within the narrow range of exceptions which calls for such interference. I am inclined to think that it does not. 50. I have indicated earlier, while discussing the contentions urged by Shri P.P. Rao that some of them were plausible and, that, if I were asked to answer these questions posed by counsel for the first time, I might agree with his answers. But I have also indicated that, in my view, they do not constitute the only way of answering the ques- tions posed by the learned counsel. Thus, to the question: did this Court have the jurisdiction to issue the impugned direction, a plausible answer could well be that it did, if one remembers that one of the transferred cases before this Court was the revision petition before the Bombay High Court in which a transfer of the C?se to the High Court has been asked for and if one gives a wide interpretation to the provi- sions of Article 142 of the Constitution. On the question whether this· Court could transfer the case to a High Court Judge, who was not a Special Judge, a court could certainly accept the view urged by Sri Ram Jethmalani thats. 7(1) of the 1952 Act should not be so construed A.R. ANTULAY .-. R.S. NAYAK [RANGANATHAN. J.) as to exclude the application of the procedural provisions of the Cr.P.C. in preference to the view that has found favour with me. Though the order dated 16.2.1984 contains no reference to, or discus- sion of, S. 407 Cr.P.C., this line of thinking of the judges who issued the direction does surface in their observations in their decision of even date rendered on the complainant's special leave petition, [1984] 2 S.C.R. 914 at page 943-4. I have already pointed out that, if the trans- fer is referable to s. 407 of the 1973 Cr.P.C., it cannot be impugned as offending Article 14 and 21 of the Constitution. The mere fact that the judges did not discuss at length the facts or the provisions of s. 407 Cr.P.C. vis-a-vis the 1952 Act or give a reasoned order as to why they thought that the trial should be in the High Court itself cannot render their direction susceptible to a charge of discrimination. A view can certainly be taken that the mere entrustment of this case to the High Court for trial does not perpetrate manifest or grave injustice. On the other hand, prima facie, it is something beneficial to the accused and equitable in the interest of justice. Such trial by the High Court, in the first instance, will be the rule in cases where a criminal trial is with- drawn to the High Court under s. 407 of the Cr.P.C. or where a High Court judge has been constituted as a Special Judge either under the 1952 Act or some other statute. The absence of an appeal to the H,i~h Court with a right of seeking for further leave to appeal to the Supreme Court may be considered outweighed by the consideration that the original trial will be in the High Court (as in Sessions cases of old, in the Presidency Towns) with a statutory right of appeal to the Supreme Court under s. 374 of the Cr.P.C. In this situation, it is difficult to say that the direction issued by this Court in the impugned order is based on a view which is manifestly incorrect, palpably absurd or patently without jurisdiction. Whether it will be considered right or wrong by a different Bench having a second-look at the issues is a totally different thing. It will be agreed on all bands that it will not behove the prestige and glory of this Court as envisaged under the Constitution if earlier decisions are revised or recalled solely because a later Bench takes a different view of the issues involved. Granting that the power of review is available, it is one to be sparingly exercised only in extraordinary or emergent situations when there can be no two opinion about the error or lack of jurisdiction in the earlier order and there are adey_uate reasons to invoke· a resort to an unconventional method of recalling or revoking the same. In my opinion, such a situa- tion is not present here. 51. The only question that has been bothering me is that the appellant had been given no chance of being heard before the c [1988] Supp. I S.C.R. impugned direction was given and one cannot say whether the Bench A would have acted in the same way even if he had been given such opportunity. However, in the circumstances of the case, I have come to the conclusion that this is not a fit case to interfere with the earlier Ii order on that ground. It is true that the audi altarem partem rule is a basic requirement of the rule of law. But judicial decisions also show B that the degree of compliance with this rule and the extent of consequ- ences flowing from failure to do so will vary from case to case. Krishna Iyer, J. observed thus in Nawabkhan Abbaskhan v. State, [1974] 3 S.C.R. 427 thus: c "an order which infringed a fundamental freedom passed in violation of the audi alteram partem rule was a nullity. A determination is no determination if it is contrary to the constitutional mandate of Art. 19. On this footing the externment order was of no effect and its violation was not off¢nce. Any order made without hearing the party affec- ted is void and ineffectual to bind parties from the beginng if the injury is to a constitutionally guaranteed right. May be that in ordinary legislation or at common law a Tribunal having jurisdiction and failing to· hear the parties may com- mit an illegality which may render the proceedings voidable when a direct attack was made thereon by way of appeal, revision or review but nullity is the consequence of uncon- stitutionality and so the order of an administrative authority charged with the duty of complying with natural justice in the exercise of power before restricting the fundamental right of a citizen is void ab initio and of no legal efficacy. The duty ·to hear menacles his jurisdictional exercise and any act is, in its inception, void except when performed in accordance with the conditions laid down in regard to hearing." (emphasis added) So far as this case is concerned, I have indicated earlier that the direc- tion of 16.2.1984 cannot be said to have infringed the fundamental G rights of the appellant or caused any miscarriage of justice. As pointed out by Sri Jethmalani, the appellant did know, on 16.2.84, that the judges were giving such a direction and yet he did not protest. Perhaps he did think that being tried by a High Court Judge would be more beneficial to him, as indeed was likely to be. That apart, as discussed earlier, several opportunities were available for the appellant to set H this right. He did not move his little finger to obtain a variation of this A.ii.. ANTULAY' RS. r<AYAK [RANGANATHAN .. I.I \~9 direction from this Court. He is approaching the Court nearly after two years of his trial by the learned judge in the High Court. Volum.es of testimony, we are told, have been re.corded and numerous.exhibits have been admitted as evidence. Though the trial is only. at the stage of the framing charges,. the trial being according to the warrant proce- dure,. a lot of evidence. has, already gone in and the result ofthe conclu,. sions of Saby.asachi Mukl!arji., J. would be. to wipe the slate clean. 1'o. take the entire matter back at this stage to square no. 1 would be. the very. negation af the purpose of the 1952 Act to speed up all su.ch trials and: would. result in, more injustice than justice from an objective point of view. As pojnte.d<out by Lord"Denning in R. v. SeaetaryofiState for the ffomeDepartrnent ex parte Mugha/, (1973] 3 AllE.R. 796, the rut.es of natural j.ustice must not be stretched too far. They should n0.t be allowed to be c;xpkiitec! as a purely te.chnical weapon to undo a deci- sien wbich does. no.! in r;eality c.ause s.ubstantial injustice and wl!ich., had the party. been really aggrieved thereby, could have been set. riglit by immediate action. After giving my best anxious and. deep thought to the pros. and cons of the situation I have come to the conclusion th.at this is not on<:> of those; cases in which I would consider it appropriate to recall the earlier direc.tion and order a retrial of the. appellant. cl.e i,io,yi;i, bc;foi:_e a Special Judge. I woulc\, therefore, dismiss the appeal. QRDER ln view of the majonty judgments the· appeal is. allowed; all proceedings in this matter subsequent to the directi.ons of this Court on 16th February, 1984 as indicated. in the judgment are. set aside. a.nd q uasbed. The tnal shall proceed in accordance with law, thii,t is to say, under the Act of 1952. N.P.V.