Petitioners have invoked writ jurisdiction of this Court under Article 226 of the Constitution of India assailing the Notification dated 17.05.2002, Memo No. 1-A/Court. Setup-103/2001-1111.J, whereby Court of Special Judge, C.B.I (A.H.D)/Additional Judicial Commissioner was authorised to try the cases under Foreign Exchange Management Act (FEMA).
To understand the controversy, few facts are required to be narrated. A complaint case being FERA Case No. 02 of 2002 was filed initially in the Court of Chief Judicial Magistrate, Ranchi. Director of Enforcement vide letter dated 25th January 2002 requested the State Government to authorise the Special Courts of Ranchi hearing the fodder Scam cases to hear the cases under FERA Act also. State Government has sought opinion of this Court vide letter dated 2nd March 2002 as to whether Special Court hearing the Fodder Scam cases can be empowered to hear the cases under FERA/FEMA. Full Court, on 25.04.2002, has resolved that Court of Special Judge hearing A.H.D Fodder Scam Scam cases be empowered to try the cases under the FERA/FEMA. Pursuant to the resolution passed by this Court, Registrar General of this Court vide letter dated 06.05.2002 conveyed resolution to the State Government with the request to issue notification to this effect immediately. Pursuant to the letter dated 06.05.2002, written by the Registrar General of this Court, conveying the decision of the Full Court, State Government has issued impugned notice dated 17.05.2002 authorising the Special Judge, C.B.I hearing the Fodder Scam cases to try the cases under FEMA/FERA. Thereafter, complaint stood transferred from the Court of C.J.M to the Special Judge, C.B.I Learned Special Judge has taken cognizance vide order dated 31.05.2002 Order taking cognizance was challenged before this Court by one of the accused namely Vijay Kumar Malik in W.P (Cr.) No. 208 of 2002, which was dismissed by this Court vide Judgment dated 18.12.2002 (reported in 2003 (1) JLJR 319) and present petitioners have also challenged the order dated 31.05.2002, whereby the Special Judge has taken cognizance on the complaint, in Criminal Misc. Petition No. 290 of 2003, Dr. K.M Prasad v. Union of India. Learned Single Judge of this Court has dismissed the petition filed by the petitioners vide Judgment dated 6 May 2003 (Reported in 2003 (3) JCR 452). Judgments, upholding the cognizance order dated 31.05.2002 were not challenged before the Supreme Court and have attained finality. Thereafter, petitioners have approached this Court by way of present writ petition challenging the notification dated 17.05.2002 issued by the State Government on the ground that State Government has absolutely no jurisdiction to autharise Special Judge to try cases under FERA Act 1973.
I have heard learned counsel for the parties and carefully perused the records.
Mr. Anil Kumar, learned counsel for the petitioner has vehemently argued that cognizance on the Criminal Cases under FERA Act 1973 could be taken by the Competent Area Judicial Magistrate. He has further argued that there was no necessity to transfer the case, filed under FERA before C.J.M, to the Special Judge. Mr. Anil Kumar has further argued that there is no provision either in the Cr.P.C or under FEMA or in the FERA Act authorising the State Government to confer jurisdiction to the Special Court to hear cases under the FERA/FEMA, therefore the notification is without jurisdiction. He has further argued that by transferring the criminal complaint to the Special Judge, right to appeal before Session Court has been taken away.
On the other hand, Ms. A.R Choudhary appearing for the High Court and Mr. A.K Das appearing for the Enforcement Director, Mr. Rajiv Ranjan Mishra appearing for the State have vehemently argued that since present case, under the FERA has direct links with the Animal Husbandry Department (Fodder Scam), therefore, it is desirable that all the cases, which are interlinked should be heard by one Court. They have further contended that by transferring the cases to the Special Judge hearing the Fodder Scam cases, no illegality was committed and petitioners can no way be said to be aggrieved by transfer of the cases.
On being asked by this Court as to whether this Court, exercising the power under Section 407 of Cr.P.C read with Article 227 and 235 of the Constitution of India is not competent to take decision that cases under FERA/FEMA shall be tried by a Special Judge, Mr. Anil Kumar, learned counsel for the petitioners does not dispute this legal proposition.
Section 407 Cr.P.C reads as under:
“407. Power of High Court to transfer cases and appeals.- (1) Whenever it is made to appear to the High Court-
(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 the parties or witnesses, or is expedient for the ends of justice, it may order-
(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, 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:
Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
(3) Every application for order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate Court's power of remand under section 309.
(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of Government under section 197.”
Article 227 and 235 are being reproduced hereunder:
“227. Power of superintendence over all courts by the High Court.- (1) [Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.]
(2) Without prejudice to the generality of the foregoing provision, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
235. Control over subordinate courts.- The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.”
Having perused Section 407 Cr.P.C and Article 227 and 235, I have no hesitation to hold that this Court either in the administration side or in the judicial side has absolute jurisdiction to transfer any criminal cases pending before the one competent court to be heard and decide by another court within the jurisdiction of this Court. This Court in his administrative power can issue direction that cases of particular nature shall be heard by particular court having jurisdiction.
Decision of Full Court dated 25.04.2002 empowering the Special Judge hearing Fodder Scam-Animal Husbandry Department Scam cases to try the case under FERA/FEMA is not under challenge. As observed hereinabove that this Court has absolute jurisdiction in administration side as well as in judicial side to transfer any pending criminal case from one competent court to another competent court, therefore, merely because impugned notification dated 17.05.2002 got to be issued pursuant to the decision of Full court dated 25.04.2002 shall have no adverse effect on the jurisdiction of Special Judge hearing the Fodder Scam cases to try the present criminal complaint under the FERA. Therefore, no interference is required in the present case.
Let impugned notification be ignored and proceedings in criminal complaint pending before Special Judge be proceeded with in accordance with law. Let Special Judge, hearing the complaint in hand, take every possible step to conclude the trial without any undue delay. Interim order dated 17.05.2002 shall stand vacated forthwith. Copy of this order be transmitted to learned trial court for compliance.