- (1.) The Special leave was granted by this Court in this case in the presence of the learned counsel for the respondents and after hearing his submissions. Today we are asked to revoke the leave already granted by us. We have considered the points urged before us in support of the application for revocation. We do not find any ground to revoke the special leave already granted by us. Shri Jethmalani learned counsel for the respondents reiterates his request which he had made on the date on which the Special Leave was granted, namely that this case should be referred to a Constitution Bench. Having regard to the various aspects of this case and the points which arise for consideration which we have recorded in the form of a note which forms part of this order, we agree with Shri Jethmalani that this case should be referred to a larger bench. We accordingly direct that this case should he listed for hearing before a bench of 7 Judges of this Court. Liberty to mention for early hearing. The papers may be placed before the Hon'ble the Chief Justice of India for further directions regarding Constitution of the Bench.
(2.) The prayer for vacating the stay is rejected.
(3.) A private complaint was first heard by Shri R. B. Sule who had been appointed as a Special Judge under S. 6(1) of the Criminal Law Amendment Act, 1952 by the Government of Maharashtra. The said Special Judge discharged the accused on the ground that there was no valid sanction to institute the complaint. The correctness of the said order of the Special Judge was challenged before this Court by the complainant in appeal. That appeal was allowed and the order of discharge passed by the Special Judge was set aside on February. 16, 1984. The operative part of the judgment of this Court (R. S. Nayak v. A. R. Antulay, (1984) 2 SCR 495 is found at p. 557 : (AIR 1984 SC 684 at p. 718)) of the Report. It reads thus : "This appeal accordingly succeeds and is allowed. The order and decision of the learned Special Judge Shri R. B. Sule dated July 25, 1983 discharging the accused in Special Case No. 24 of 1982 and Special Case No. 3/83 is hereby set aside and the trial shall proceed further from the stage where the accused was discharged. The accused was the Chief Minister of a premier State - the State of Maharashtra. By a prosecution launched as early as on September 11, 1981, his character and integrity came under a cloud. Nearly 21/2 years have rolled by and the case has not moved an inch further. An expeditious trial is primarily in the interest of the accused and a mandate of Art. 21. Expeditious disposal of a criminal case is in the interest of both the prosecution and the accused. Therefore, Special Case No. 24 of 1982 and Special Case No. 3/83 pending in the Court of Special Judge, Greater Bombay Shri R. B. Sule are withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court. On being so assigned, the learned Judge may proceed to expeditiously dispose of the cases preferably by holding the trial from day to day." In this case the following points arise for consideration : 1. If an order of transfer of a criminal case which purports to violate Art. 14 and Art. 21 is passed against an accused person by this Court without any pleading or hearing or even consulting his wishes in that regard, can he not question it by an independent petition since a review is not an adequate remedy because the petitioner in a review petition (which by its very nature is of a restricted character) has no right of personal hearing at the stage of admission of the review petition 2. Under the Criminal Law Amendment Act, 1952 an offence punishable under S. 5 of the Prevention of Corruption Act or under Ss. 161, 162, 163, 164, 165 and 165A of the Indian Penal Code can be tried only by a Special Judge appointed under S. 6 of that Act by the State Government. An order of transfer by this Court cannot be a substitute for an order of appointment to be made by the State Government under S. 6 of that Act. In Gurucharandas Chadha v. State of Rajasthan, (1966) 2 SCR 678 : (AIR 1966 SC 1418) it is laid down that the trial by a Special Judge is the sine qua non of a trial under that Act and a case can be transferred by this Court from one Special Judge to another Special Judge only. That means that all other Courts including the High Court are excluded. In Bhagjahari Mondal v. State of West Bengal. (1959) SCR 1276 : (AIR 1959 SC 8) it is held that the trial by a Judge who is not authorised to try a case amounts to an incurable illegality and the trial would be a nullity. In view of these decisions can the trial in this case proceed before a High Court Judge who is not a Special Judge It may be noted that S. 7(1) of the Criminal Law Amendment Act, 1952 which opens with a non-obstante clause prevails upon every provision in the Criminal Procedure Code including Ss. 406 and 407 which deal with the powers of transfer of criminal cases exercisable by the Supreme Court and the High Court respectively and upon every other law in force. Does not the order of transfer in this case deny the right of the accused to be tried according to the procedure established by law and is not Art. 21 violated thereby 3. Has the accused in this case a remedy by way of appeal as of right under the Criminal Procedure Code There appears to be a reasonable doubt in this case because S. 374(1) of the Code of Criminal Procedure, 1973 provides for an appeal to this Court against a conviction by a High Court under its extraordinary original criminal jurisdiction. Cl. 24 of the Letters Patent of the Bombay High Court which confers extraordinary original criminal jurisdiction on the High Court refers only to cases brought before the High Court by the Advocate General, any Magistrate or any other officer specially empowered by the Government in that behalf. But this case is brought by a private person. If it falls outside Cl. 24 of the Letters Patent, the accused will have perhaps a remedy of appeal by way of special leave of this Court under Art. 136 of the Constitution. Denial of even one appeal as of right may amount to violation of Art. 14 and Art. 21. Does not this question require examination ;