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RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

IN THE HONOURABLE SUPREME COURT OF INDIA

Appeal No: ________ / 2011

In The Matter Of:

A. R. Antulay v. R. S. Nayak & Anr.

Appellant

Respondents

ON SUBMISSION TO THE HONOURABLE SUPREME COURT OF INDIA MEMORIAL FILED ON BEHALF OF THE APPELLANTS

Rajiv Gandhi School of Intellectual Property Law Gaurav Choubey 10IP60012

WRITTEN SUBMISSIONS FOR THE APPELLANTS

RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

TABLE OF CONTENTS

LIST OF ABBREVIATIONS.....................................................................................................I INDEX OF AUTHORITIES.....................................................................................................II STATEMENT OF FACTS.......................................................................................................III ISSUE RAISED........................................................................................................................V SUMMARY OF ARGUMENTS.............................................................................................VI ARGUMENTS ADVANCED....................................................................................................1 PRAYER.................................................................................................................................VII

WRITTEN SUBMISSIONS FOR THE APPELLANTS

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LIST OF ABBREVIATIONS

A.C. .......................................................................................................................Appeal Cases AIR................................................................................................................. All India Reporter Anr. ................................................................................................................................ Another BJP...Bharatiya Janata Party Bom.Bombay CMChief Minister DLT..Delhi Law Times Ed. ................................................................................................................................... Edition I.A....Indian Appeals IPC..Indian Penal Code J.Justice MLA...Member of Legislative Assembly Ors. .................................................................................................................................. Others SC........................................................................................................................ Supreme Court SCR.Supreme Court Reports U.P. ....................................................................................................................... Uttar Pradesh v.Versus

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INDEX OF AUTHORITIES

STATUTES REFERRED
The Code of Criminal Procedure, 1973 The Indian Penal Code, 1860. Prevention of Corruption Act, 1947 Criminal Law (Amendment Act), 1952 Constitution of India, 1950

BOOKS REFERRED
V V Chandrachud and V R Manohar, Ratanlal and Dhirajlal: The Code of Criminal Procedure (18th Ed. Reprint, LexisNexis Butterworths Wadhwa) J. C.K. Thakker Takwani, Takwani: Criminal Procedure (3rd Ed., LexisNexis Butterworths Wadhwa)

CASES REFERRED
R.S. Nayak v. A.R. Antulay, AIR 1984 SC 718 Kiran Singh and Ors. v. Chaman Paswan and Ors, [1955] 1 SCR117 A.R. Antulay v. Ramdas Sriniwas Nayak and Anr., 1984 CriLJ 647 The State of West Bengal v. Anwar Ali Sarkar, 1952 CriLJ 510 Meenakshi Naidoo v. Subramaniya Sastri, 14 I.A. 160 Trilok Chand v. H.B. Munshi, [1969] 2 SCR 824

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STATEMENT OF FACTS

FACTUAL AND PROCEDURAL BACKGROUND 1. The appellant became the Chief Minister of Maharashtra on 9th June 1981. 2. On 1st September the same year, respondent no.1, a member of the BJP, applied for sanction from the Governor of the state under Section 197 of the Code of Criminal Procedure Code, 1973 (hereinafter The Code) and Section 6 of the Prevention of Corruption Act, 1947 (hereinafter The Act) to prosecute the appellant. 3. Meanwhile respondent no.1 filed a complaint before the Additional Metropolitan Magistrate, Bombay against the appellant and others, under Sections 161 and 165 of the Indian Penal Code (hereinafter The IPC) as well as Sections 384 and 420 read with Sections 109 and 120B of the IPC and Section 5 of the Act. 4. On the refusal of the learned magistrate to take cognizance of the complaint under Sections 161 and 165 of the IPC and Section 5 of the act in absence of a sanction, a criminal revision application was filed in the High Court of Bombay. 5. The Division bench held in favour of the appellant and ruled that a sanction was necessary to prosecute the appellant. It rejected a request for transfer of the case from the Additional Metropolitan Magistrate to itself. Meanwhile, the appellant had resigned from his post of Chief Minister on 12th January, 1982. 6. Respondent no. 1 was granted sanction under Section 197 of the Code by the Governor on 28th July, 1982 in respect of five items relating to three subjects only. Later on 9th August, he filed a fresh complaint before the learned Special Judge, registered as Case no. 24 of 1982. 7. Respondent no.1 brought in many more allegations than those for which sanction was granted. He contended that sanction was not necessary since the appellant had ceased to be a public servant after resigning as CM. 8. The Special Judge, Shri P.S. Bhutta, issued process to the appellant ignoring the sanction and later overruled the appellants objection to his jurisdiction to take cognizance of the matter and issue process in the absence of a notification under Section 7(2) of the Criminal Law Amendment Act, 1952 (hereinafter The 1952 Act). The notification would have specified which of the three special judges of the area should try the case.
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9. On 15th January 1983, the State Government appointed Shri R.B. Sule as the Special Judge to try offences specified under Section 6(2) of the 1952 Act. He discharged the appellant on 25th July 1983 stating the appellant was still a public servant being an MLA and there was no valid sanction to try the appellant. 10. This resulted in an appeal under Article 136 of the Constitution of India by respondent no. 1. It was held therein that an MLA is not a public servant and the order of Special Judge Sule was set aside. The cases were transferred by the Supreme Court to the Bombay High Court with a request being made to the honourable Chief Justice to appoint a sitting judge of the High Court to hold trial of the two cases (no. 24/82 and 3/83, filed by one P.B. Samant). 11. Thereafter the cases were assigned to S. N. Khatri, J., who rejected the objections of the appellant in respect of his jurisdiction. 12. A writ petition filed thereafter by the appellant in 1984 was dismissed by this court and it was held that it was the duty of the learned judge to follow the directions of this court. 13. The cases were then transferred to Shri D.N. Mehta, J. who framed charges under 21 heads and declined to frame charges under 22 other heads. In an appeal by special leave preferred by respondent no.1, this court directed the high court to frame charges with regard to all offences except those under Section 384 of the IPC. A direction to replace Shri Mehta with another judge was also passed. 14. P.S. Shah, J. replaced Shri. Mehta on 24th July 1986 and proceeded to frame 79 charges against the appellant, but not against any other co-conspirator. 15. Thereafter two appeals by special leave and one writ petition challenging the constitutionality of a portion of Section 197(1) of the Code were filed at this court by the appellant. Leave for the first appeal was granted and the other appeal and petition were delinked from this case to be considered by independent benches of this court.

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ISSUES RAISED

I.

Whether the appeal under Article 136 of the Constitution of India is maintainable?

II.

Whether a case triable only by a special judge under the Criminal law Amendment Act, 1952 can be transferred to the High Court for trial by itself or by this court to the High Court for trial by it?

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SUMMARY OF ARGUMENTS

I.

WHETHER

THE

APPEAL

UNDER

ARTICLE

136

OF

THE

CONSTITUTION OF INDIA IS MAINTAINABLE?

A. The judgment was passed without jurisdiction

B. A decree passed by any court without jurisdiction is nullity.

II.

WHETHER A CASE TRIABLE ONLY BY A SPECIAL JUDGE UNDER THE CRIMINAL LAW AMENDMENT ACT, 1952 CAN BE

TRANSFERRED TO THE HIGH COURT FOR TRIAL BY ITSELF OR BY THIS COURT TO THE HIGH COURT FOR TRIAL BY IT.

A. Criminal Law (Amendment Act), 1952 ousts the applicability of any provision of Criminal Procedure Code which is in contravention to the provisions stipulated therein.

B. There is no other provision in any other statute in force which vests an authority which justifies the transfer of the case made as such.

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ARGUMENTS ADVANCED

I.

Whether the appeal under Article 136 of the Constitution of India is maintainable?

1. The doctrine of res judicata is applicable for the judgments which are valid. The appellant come to this court to challenge the validity of the judgment passed and not to reopen the issued decided therein. 2. The basic premise on which the appellant herein comes to the honourable Supreme Court is that the judgment1 in question, which was passed against the appellant, is subject to nullity hailing to the absence of jurisdiction of the court in the matters decided therein. 3. In Kiran Singh and Ors. v. Chaman Paswan and Ors 2 , Venkatarama Ayyar, J. observed that the fundamental principle is well established that a decree passed by a Court without jurisdiction is a nullity, and that its validity 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 of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. 4. Hence, the appellant comes to contest on a critical matter of law, with respect to the procedure of law, as exercised by the court in the questioned judgment. The appellant come to this court under art. 136 of Constitution of India.

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R.S. Nayak v. A.R. Antulay, AIR 1984 SC 718 [1955] 1 SCR117

RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

II.

Whether a case triable only by a special judge under the Criminal Law (Amendment Act), 1952 can be transferred to the High Court for trial by itself or by this court to the High Court for trial by it? 5. Section 7(1) of the 1952 Act creates a condition which is sine qua non for the trial of offences under Section 6(1) of the said Act. The condition is that notwithstanding anything contained in the CrPC or any other law, the said offences shall be triable by Special Judges only. Indeed conferment of the exclusive jurisdiction of the Special Judge is recognised by the judgment delivered by this Court in A.R. Antulay v. Ramdas Sriniwas Nayak and Anr.3 where this Court had adverted to Section 7(1) of the 1952 Act and observed that Section 7 of the 1952 Act conferred exclusive jurisdiction on the Special Judge appointed under Section 6 to try cases set out in Section 6(1)(a) and 6(1)(b) of the said Act. In spite of this while giving directions in the other matter, that is, R.S. Nayak v. A.R. Antulay4, this Court directed transfer to the High Court of Bombay the cases pending before the Special Judge. It is true that Section 7(1) and Section 6 of the 1952 Act were referred to while dealing with the other matters but while dealing with the matter of directions and giving the impugned directions, it does not appear that the Court kept in mind the exclusiveness of the jurisdiction of the Special Court to try the offences enumerated in Section 6. Hence, the directions of the Court were given per incuriam. 6. It is submitted before honourable court that the directions of the Court were given per incuriam, that is to say without awareness of or advertence to the exclusive nature of the jurisdiction of the Special Court and without reference to the possibility of the violation of the fundamental rights in a case of this nature as observed by a seven Judges Bench decision in The State of West Bengal v. Anwar Ali Sarkar5. 7. Section 7(1) of the Act required the offences involved in the case to be tried by a Special Judge only, and Section 7(2) of the Act required the offences to be tried by a Special Judge for the area within which these were committed which condition could never be satisfied as there was a transfer. Hence, the condition in Sub-section (1) of Section 7 of the Act that the case must be tried by a Special Judge, is a sine qua non for the trial of offences under Section 6.

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1984 CriLJ 647 1984 CriLJ 613 5 1952 CriLJ 510

RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

8. The third sub-section of Section 8 of the Act preserves the application of any provision of the Code if it is not inconsistent with the Act save as provided by the first two sub-sections of that Section. Section 7 of the 1952 Act provides that notwithstanding anything contained in the CrPC, or in any other law the offences specified in Sub-section (1) of Section 6 shall be triable by Special Judges only6. By express terms therefore, it takes away the right to transfer cases contained in the Code to any other Court which is not a Special Court. And therefore, the power under section 406 and 407 of the code, which are in contraventions to the 1952 Act, could not be exercised in this case 7 . Thus, the transferring the case in such manner for a speedier trial by the High Court for an offence of which the High Court had no jurisdiction to try under the Act of 1952 is contended to be unwarranted, unprecedented and the directions given by this Court for the said purpose, were not warranted. 9. Hence, in view of the clear provisions of Section 7(2) of the 1952 Act and Articles 14 and 21 of the Constitution, these directions are contended to be legally wrong. 10. The fact that the objection to the order of transfer of case was not raised before this Court giving directions on 16th February, 1984 cannot amount to any waiver. In Meenakshi Naidoo v. Subramaniya Sastri 8 , it was held that if there was inherent incompetence in a High Court to deal with all questions before it then consent could not confer on the High Court any jurisdiction which it never possessed. 11. Also, in Trilok Chand v. H.B. Munshi9, it was noted ...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. 12. On the ratio of the seven-Judge Bench decision of this Court in the State of West Bengal v. Anwar Ali Sarkar10 the vires of this Act are not open to challenge. The

S.7(1), Criminal Law Amendment Act, 1952 S.8(3), Criminal Law Amendment Act, 1952 8 14 I.A. 160 9 [1969] 2 SCR 824
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RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

majority of the learned Judges in Anwar Ali Sarkar's case expressed the view that it was open to only to the Legislature to set up a special forum for expedient trial of particular class of cases. Section 7(1) has clearly provided that offences specified in Sub-section (1) of Section 6 shall be triable by the Special Judge only and has taken away the power of the courts established under the CrPC to try those offences. Section 10 of the Act required all pending cases on the date of commencement of the Act to stand transferred to the respective Special Judge. Unless there be challenge to the provision creating exclusive jurisdiction of the Special Judge, the procedural law in the Amending Act is binding on courts as also the parties and no court is entitled to make orders contrary to the law which are binding as long as Section 7 of the Amending Act of 1952 hold the field it was not open to any court including the apex Court to act contrary to Section 7(1) of the 1952 Act.

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1952 CriLJ 510

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PRAYER

In light of the facts stated, points raised, arguments advanced and authorities cited, the appellant prays this Honourable Court to allow the appeal filed by the appellant and declare judgement and order dated 16.02.1984 passed by the honourable Supreme Court of India as nullity.

Respectfully submitted on behalf of the Appellants, Gaurav Choubey, Counsel for the Appellants.

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