High Court Quashes Criminal Complaints Against Prominent Politician

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Case Name:

Srinidhi Karti Chidambaram & Karti P.Chidambram Vs The Deputy Director of Income Tax (Investigation) And Ors. (High Court of Madras)

Criminal O.P.Nos.22136, 22137 of 2019, 1526 and 1527 of 2020 and Crl.M.P.Nos.11481, 11482 of 2019, 944 and 946 of 2020

Date: 12th May 2020

Key Takeaways:

1. The High Court emphasized the need to strictly follow legal procedures and principles when bringing criminal prosecutions, even against high-profile individuals.

2. The court highlighted the importance of having a valid assessment order before launching a criminal prosecution under the Income Tax Act.

3. The court cautioned against relying solely on statements from third parties as the basis for a criminal case.

Issue:

Whether the criminal complaints filed by the Income Tax Department against the petitioners should be quashed.

Facts:

The petitioners, who are assessees under the Income Tax Act, filed their tax returns for the relevant assessment years, which included income from the sale of immovable properties. The Income Tax Department later alleged that the petitioners had received part of the sale consideration in cash and failed to disclose it in their returns. The Department conducted searches and seized materials that it claimed corroborated this allegation. The petitioners filed petitions challenging the criminal complaints filed by the Department.

Arguments:

Petitioners' Arguments:

1. The prosecution is barred by limitation as the criminal complaints were filed after the time frame for reassessment under the Income Tax Act.

2. The criminal complaints were filed even before the reasons for issuing notices under Section 148 of the Income Tax Act were disclosed.

3. The prosecution is based solely on statements from third parties, which is impermissible.

Income Tax Department's Arguments:

1. The prosecution is not based on assessments, but on the search and seizure operations.

2. There is no limitation period for economic offences under the Income Tax Act.

Key Legal Precedents:

1. Kamlesh Kumar v. State of Jharkhand [(2013) 15 SCC 460] - Principles regarding the scope of powers under Article 227 of the Constitution and Section 482 of the Criminal Procedure Code.

2. Govind v. State (NCT of Delhi) [(2003) 68 DRJ 446 (DB)] - Principles regarding the scope of powers under Article 226 of the Constitution.

3. Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749] - Principles regarding the scope of powers under Article 227 of the Constitution and Section 482 of the Criminal Procedure Code.

Judgment:

The High Court quashed the criminal complaints filed by the Income Tax Department against the petitioners. The court found that the prosecution was barred by limitation, as the criminal complaints were filed after the time frame for reassessment under the Income Tax Act. The court also held that the prosecution was based solely on statements from third parties, which is impermissible. The court emphasized the need to strictly follow legal procedures and principles when bringing criminal prosecutions, even against high-profile individuals.

FAQs:

1. Why did the High Court quash the criminal complaints against the petitioners?

 The High Court quashed the criminal complaints because it found that the prosecution was barred by limitation and was based solely on statements from third parties, which is impermissible.

2. What were the key legal principles the court relied on in its decision?

  The court relied on the principles established in the Kamlesh Kumar, Govind, and Pepsi Foods cases regarding the scope of powers under Articles 226 and 227 of the Constitution and Section 482 of the Criminal Procedure Code.

3. What is the significance of this case for future criminal prosecutions under the Income Tax Act?

  This case emphasizes the need for the Income Tax Department to strictly follow legal procedures and principles when bringing criminal prosecutions, even against high-profile individuals. It sets a precedent that courts will closely scrutinize the basis and timing of such prosecutions.

4. How does this case impact the petitioners, Karti P. Chidambaram and others?

  The quashing of the criminal complaints against the petitioners means they will not have to face trial on these charges. This is a significant victory for them, as it prevents the prosecution from proceeding further.

5. What are the broader implications of this case for the relationship between the judiciary and the executive branch?**

  This case demonstrates the judiciary's willingness to exercise its powers of judicial review to check the actions of the executive branch, even in high-profile cases involving prominent political figures. It underscores the importance of the separation of powers and the judiciary's role in ensuring that the law is applied fairly and consistently.

This common order will dispose of these four ‘criminal original petitions' (hereinafter 'Crl.O.Ps' in plural and 'Crl.O.P' in singular for the sake of brevity) and all 'criminal miscellaneous petitions' therein.

2. Crl.O.P.Nos.22136 of 2019, 22137 of 2019, 1526 of 2020

and 1527 of 2020 shall be referred to as 'first Crl.O.P', 'second Crl.O.P','third Crl.O.P' and 'fourth Crl.O.P' respectively (wherever necessary and deemed appropriate) for the sake of convenience and clarity. There is no disputation or disagreement before this Court that there is no office and obviously no incumbent with regard to second respondent in first and second Crl.O.Ps. In other words, this court is informed without any disputation or disagreement that second respondent in first and second Crl.O.Ps has been wrongly described and that in any event, presence of any alternative respondents is not necessary. In view of this undisputed position, second respondent in first and second Crl.O.Ps stands deleted.

3. Central theme to these four Crl.O.Ps is prayers for quashing

and assailing transfer of two criminal complaints being E.O.C.Nos.266

and 267 of 2018 originally on the file of Additional Chief Metropolitan

Magistrate's Court (E.O.-II), Egmore, Chennai, subsequently transferred

to Special court for trial of criminal cases related to elected M.Ps/M.L.As of Tamil Nadu at Chennai, at Singaravelar Maligai, Chennai (presided over by a Sessions Judge), wherein the two criminal complaints were taken on file as C.C.Nos.15 and 16 of 2019 respectively. {To be noted,this Court is informed that ‘E.O.’ stands for ‘Economic Offences’ and ‘M.P/M.L.A.’ stands for Member of Parliament / Member of Legislative

Assembly’ respectively}. These two criminal complaints shall hereinafter

be referred to as 'said criminal complaints' collectively for the sake of convenience / clarity, the same shall be referred to as ‘first criminal complaint’ and ‘second criminal complaint’ respectively (in the order in which they have been set out) where it is deemed necessary / appropriate.

4. As already mentioned supra, said criminal complaints and

prayers pertaining to quash / assailing transfer of same is the central

theme of instant four Crl.O.Ps. on hand. To be noted, while transfer of

said criminal complaints from 'Additional Chief Metropolitan Magistrate

Court, E.O.-II, Egmore, Chennai' (hereinafter referred to as 'EO Court'

for convenience) to Special Court for trial of criminal cases related to

elected M.P / M.L.As of Tamil Nadu presided over by a Judicial Officer

in the cadre of District Judge (hereinafter referred to as 'Sessions Court'and/or 'transferee court' for the sake of convenience) and challenge to the same is the central theme of first and second criminal O.Ps., central theme of third and fourth Crl.O.Ps is quashing said criminal complaints.

5. Said criminal complaints have been filed by the Deputy

Director of Income Tax (Investigation) Unit-3(2), Nungambakkam,

Chennai-34 under Section 200 of 'The Code of Criminal Procedure, 1973

(2 of 1974)' (hereinafter 'Cr.P.C.' for the sake of brevity).

6. As already mentioned supra, said criminal complaints is a

collective reference to aforementioned two complaints. While the first

criminal complaint has been laid for alleged offences under section

276C(1) and 277 of 'The Income Tax Act, 1961' ('IT Act' for brevity),

second criminal complaint has been laid for alleged offences under

sections 276C(1) and 277 read with Section 278 of IT Act. In the first

criminal complaint, there is a lone accused and in the second criminal

complaint, he has been arrayed as accused along with his spouse. While

first criminal complaint pertains to 'Assessment Year' (hereinafter 'AY'

for brevity) 2014-15, the relevant accounting year being accounting year

ending 31.03.2015, the second criminal complaint pertains to AY 2015-

16.

7. All the learned senior counsel and counsel for all parties

before this court made a common request that all four Crl.O.Ps may

please be heard out together. It has become necessary to mention this as

consideration of first Crl.O.P / second Crl.O.P may become unnecessary

if prayers in third and fourth Crl.O.Ps are acceded to. However, if

prayers in third Crl.O.P / fourth Crl.O.P are not acceded to, it will

thereafter become necessary to hear out first and second Crl.O.Ps.

Therefore, this common request was acceded to, all four Crl.O.Ps were

heard out together and this common order is being made.

8. Short facts shorn of details and particulars not imperative

for appreciating this order are that the petitioners in instant four Crl.O.Ps who are assessees under the IT Act, filed their returns for the aforesaid two AYs, returns filed included income received by petitioners by way of sale of immovable properties (lands) in Muttukadu village,

Kancheepuram District, Tamil Nadu and sale consideration received for

the same. After returns were filed by petitioners, assessment orders were passed by 'Income Tax Department' (hereinafter 'IT Department' for the sake of brevity). Thereafter, IT Department issued notices inter-alia under section 148 of IT Act. Petitioners responded by refiling without changes, but petitioners requested the IT Department to disclose reasons for notices under section 148 of IT Act and this court is informed that this was inter-alia by placing reliance on GKN Driveshafts principle being the ratio laid down by Hon'ble Supreme Court in GKN Driveshafts (India) Ltd. Vs. Income Tax Officer and others reported in (2003) 1 SCC 72. Even before reasons for issuing section 148 notices were disclosed in accordance with GKN Driveshafts principle, petitioners received notices from Magistrate Court for appearance in said criminal complaints. Thereafter, IT Department responded and gave reasons (in response to petitioners’ request for reasons based on GKN Driveshafts principle) which are to the effect that petitioners allegedly received some part of consideration in cash for sale of immovable property mentioned herein above, but did not disclose the same. It is also the case of IT Department that searches were conducted in the office of a company in which one of the petitioners is a Director, some materials (soft copies) were shared with IT Department by Enforcement Department, searches were conducted in the office of purchaser company, some small note books were recovered which as explained by Accountant of the purchaser company leads to the belief that petitioners have received part of consideration by cash (for sale of aforementioned immovable property) and have not disclosed the same in their returns.

9. Be that as it may, this Court is informed that Hon'ble

Supreme Court passed orders in Ashwini Kumar Upadhyay case, a

'Public Interest Litigation', i.e., W.P.(C)No.699 of 2016 on 01.11.2017

and thereafter gave further directions on 14.12.2017. Ashwini Kumar

Upadhyay case initially led to the establishment of a Special Court in

Chennai (for entire Tamil Nadu) for offences concerning sitting and

former ‘elected members of Parliament and Legislative Assembly’

{hereinafter ‘MPs / MLAs’ for brevity}. To be noted, this is vide

G.O.Ms.No.1423 dated 06.09.2018.

10. Thereafter one of the petitioners (Mr.Karti P.Chidambaram)

in these four Crl.O.Ps before this Court contested Parliamentary elections in the general election to 17th Lok Sabha held in May 2019 and was elected as a Member of Parliament from Sivaganga Parliamentary

Constituency. To be noted, he was declared elected on 24.05.2019 and

this Court is informed that he took oath as Member of Parliament in Lok

Sabha on 18.6.2019. In the interregnum, the Registrar General of this

Court issued two Office Memoranda both dated 07.06.2019 (both

bearing same reference being Roc No.5745/2018/G4) followed by a letter

to the Principal Judge of City Civil Court, Chennai being letter dated

09.07.2019 and a combined reading of contents of these memoranda and

letter suggest that they pertain to transfer inter-alia of said criminal

complaints from EO Court to designated court for trying offences against

M.Ps/M.L.As. This led to first and second Crl.O.Ps being filed in August

of 2019 (by petitioners) assailing such transfer inter-alia on the grounds that transferee court does not have original jurisdiction, that only one of the petitioners has become M.P, that he was also neither a sitting nor former M.P/M.L.A on the date of complaint and that petitioners have been deprived of one tier of remedy by transfer from EO Court to Sessions Court. To be precise, first and second Crl.O.Ps were filed on 06.08.2019. After more than one recusal, these Crl.O.Ps were placed before me (pursuant to orders of Hon'ble Chief Justice) as Specially Ordered matters on 21.01.2020. On 21.01.2020, when matters on hand were first listed before me as Specially Ordered matters, as it was after two prior Bench changes, this Court wanted to know whether there are any objections for this Court hearing the matter and all the counsel appearing on both sides unanimously requested me to take up and hear the matter. In other words, this Court took the consent of all the counsel on both sides (for hearing the matter) after making necessary disclosures and this has been recorded separately by way of proceedings on the same day which shall be treated as an integral part and parcel of this order.

However, these proceedings (now forming part of case file) are not

reproduced here to avoid prolixity and avert this order becoming

verbose. On 21.01.2020, when these Crl.O.Ps were thus listed before me

for the first time, this court was informed that said criminal complaints had progressed (in the transferee court) in the interregnum (pending first and second Crl.O.Ps) and this court was also informed that it had reached the stage of framing of charges. This Court was further informed that said criminal complaints were simultaneously listed before Sessions / transferee Court for framing charges on the same day, i.e., 21.01.2020 and therefore, as jurisdiction of Sessions Court, i.e., transferee court itself (pursuant to transfer that is being assailed) has been put in issue,this Court had put said criminal complaints on hold by way of interim orders. To be noted, this and other reasons have been articulated in the interim order itself.

11 This court now embarks upon the exercise of discussing and

giving its dispositive reasoning in third and fourth Crl. O.Ps first as

whether it is necessary to examine first and second Crl. O.Ps will depend upon the outcome of third and fourth Crl.O.Ps. For the purpose of clarity,it is set out again that third and fourth Crl. O.Ps seek to quash said criminal complaints which constitute the fulcrum of all four Crl.O.Ps now on hand. If quash prayers are acceded to, it will not be necessary to examine the Crl. O.Ps assailing transfer of said criminal complaints.

Axiomatically, if quash prayers are negatived, it will become necessary

to examine Crl. O.Ps assailing transfer and returning a verdict on the

same.

12 Mr.K.T.S.Tulsi and Mr.Amit Desai, learned Senior counsel

instructed by counsel on record for petitioners made submissions in third and fourth Crl.O.Ps., summation of which is fourfold and the same is as follows :

(a) If Returns in response to notice under Section

148 of IT Act are treated as Returns under Section 139,

then the original Returns cease to exist and consequently,

said criminal complaints have to be quashed;

(b) Absent at least one Assessment Order, there

can be no prosecution. In the instant case, even first

assessment order has not been made and criminal

complaints were launched on 12.09.2018 even before the

reasons for issuing section 148 notices were disclosed;

(c) The entire prosecution is pivoted on

statements given by third parties qua petitioners, i.e.,

Managing Director and Cashier of purchaser company and

this is impermissible;

(d) Complaints sought to be quashed are clearly

barred by limitation as the same have been launched after

the cap in terms of time frame for reassessment under IT

Act.

13 Though elaborate submissions were made, the

aforementioned fourfold summation sets out those arguments which are

germane and relevant to the quash prayer.

14 In response to the aforesaid arguments, submissions made

by learned Prosecutors for IT Department are twofold and the same are

as follows:

(a) The entire prosecution, i.e., said criminal

complaints which is for alleged offences under

Sections 276C(1), 277 of IT Act and same provisions

read with Section 278 of IT Act is not based on

assessments, but it is based on search and seizure;

(b) The said criminal complaints cannot be

said to be barred by limitation as there is no limitation

for economic offences under IT Act.

15 As limitation goes to the root of the matter, as a matter of

first principle, this court deems it appropriate to deal with the limitation aspect first (fourth point in summation supra).

16. Normally for resolving the issue of limitation, whenever it is

raised in a case, a chronicle of events becomes necessary. In this case,

interestingly, the question of limitation can be decided without even

adverting to chronicle of events and dates. The reason is fairly simple.

There is no disputation or disagreement before this court that there is a special enactment which goes by the name 'The Economic Offences

(Inapplicability of Limitation) Act, 1974 (Act No.12 of 1974)' {'Act

No.12 of 1974' for brevity} and the Schedule to the enactment includes

IT Act. As Mr.Amit Desai, learned senior counsel very fairly submitted

that he does not enter upon any disputation or contestation on this aspect of the matter, the criminal complaints being complaints instituted otherwise than on police report for alleged offences under sections 276C(1), 277 of IT Act and same provisions read with section 278 of IT Act clearly do not have any limitation. Relevant provision of Act No.12 of 1974 is section 2 read with the Schedule and the same read as follows:

Section 2 :

‘2. Chapter XXXVI of the Code of Criminal Procedure, 1973, not

to apply to certain offences Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to-

(i) any offence punishable under any of the enactments or

provisions, if any, thereof, specified in the Schedule; or

(ii) any other offence, which under the provisions of that Code, may

be tried along with such offence,

and every offence referred to in clause (i) or in clause (ii) may be

taken cognizance of by the Court having jurisdiction as if the

provisions of that Chapter were not enacted.’

Schedule :

THE SCHEDULE

(See section 2)

1.The Indian Income Tax Act, 1922 (11 of 1922).

[1A. Clause (a) of section 63 of the Copyright Act, 1957 (14 of

1957).]

2.The Income Tax Act, 1961 (43 of 1961).

[2A.The Interest-tax Act, 1974 (45 of 1974).]

[2B.The Hotel-Receipts Tax Act, 1980 (54 of 1980).]

[2C.The Expenditure-tax Act, 1987 (35 of 1987).]

3.The Companies (Profits) Surtax Act, 1964 (7 of 1964).

4.The Wealth-Tax Act, 1957 (27 of 1957).

5.The Gift-Tax Act, 1958 (18 of 1958).

6.The Central Sales Tax Act, 1956 (74 of 1956).

7.The Central Excises and Salt Act, 1944 (1 of 1994).

[7A.Chapter V of the Finance Act, 1994 (32 of 1994).]

8.The Medicinal and Toilet Preparations (Excise Duties) Act, 1955

(16 of 1955).

9.The Customs Act, 1962 (52 of 1962).

10.The Gold (Control) Act, 1968 (45 of 1968).

11.The Imports and Exports (Control) Act, 1947 (18 of 1947).

12.The Foreign Exchange Regulation Act, 1947 (7 of 1947).

13.The Foreign Exchange Regulation Act, 1973 (46 of 1973).

14.The Capital Issues (Control) Act, 1947 (29 of 1947).

15.The Indian Stamp Act, 1899 (2 of 1899).

16.The Emergency Risks (Goods) Insurance Act, 1962 (62 of 1962).

17.The Emergency Risks (Factories) Insurance Act, 1962 (63 of

1962).

18.The Emergency Risks (Goods) Insurance Act, 1971 (50 of 1971).

19.The Emergency Risks (Undertakings) Insurance Act, 1971 (51 of

1971).

20.The General Insurance Business (Nationalisation) Act, 1972 (57

of 1972).

[21.The Industries (Development and Regulation) Act, 1951 (65 of

1951).]'

(Underlining made by this Court to highlight)

17. To be noted, Sl.No.2 in the schedule is Income Tax Act,

1961, i.e., IT Act and Chapter XXXVI of Cr.P.C pertains to Limitation

for taking cognizance of certain offences.

18. Therefore, this court comes to the conclusion (as a matter of

inevitable sequitter) that said criminal complaints are not barred by

limitation. To be noted, learned Prosecutors for IT Department submitted

that time line set out in section 153 applies only to assessments and not for prosecution. However, in the light of 1974 special enactment, i.e., Act No.12 of 1974, it is not necessary to delve into this aspect of the matter any further.

19. This takes us to the next aspect of the matter touching upon

assessment (first and second points in summation supra). The simple and

straight reply of learned Prosecutors for IT Department is, said criminal complaints are not based on assessment/s. The sole and simple argument of learned Prosecutors in this regard is said criminal complaints are based on search / seizure and not on assessments. It is also pointed out that Enforcement Directorate which conducted search and seizure in a company which goes by the name 'Advantage Strategic Consulting Pvt.Ltd.' in which (this Court is informed) one of the petitioners is a Director,yielded some soft copies that were shared by Enforcement Directorate with the IT Department, which thereafter conducted independent search /seizure on 5.7.2018 in the purchaser company which purchased land from petitioners and recovered about 163 small notebooks. To be noted,the original survey was under section 133A of IT Act and further Enforcement Directorate shared soft copies seized from the aforementioned company. Search and seizure in the purchaser company was done under section 132 of IT Act and 163 small note books were recovered. According to learned Prosecutors for IT Department, entries in the soft copies recovered by the Enforcement Directorate from the office of the aforementioned company (shared with IT Department) and

the note books recovered from the purchaser company read in

juxtaposition with the statement given by the Managing Director and

Cashier of the purchaser company, corroborate each other, establish that

petitioners received a part of sale consideration by cash and suppressed

the same in the Returns for evasion of tax, besides filing false Returns.

This is the crux and gravamen of stated position of prosecution. Whether

the recovered material corroborate each other and whether it establishes

guilt on the part of accused are all clearly matters for trial. Senior counsel for petitioners submits on instructions that Managing Director of purchaser company has now retracted his statement in some collateral

proceedings. All these aspects of said complaints are clearly matters for trial. Aforementioned one answer of the prosecution, i.e., answer that said criminal complaints are not based on assessment/s, but they are based on search and seizure defuses the first / second points urged on behalf of petitioners, namely the points touching upon original section 139 Returns ceasing to exit and prosecution absent even one assessment order. It is the stated position of the prosecution that both complaints are based on search / seizure and not on assessment.

20. It is well settled that lead case with regard to quashment of

original complaints and principles in this regard is Bhajan Lal case

being State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC

335, wherein seven principles (illustrative though) were laid down. The

law is also well settled that these principles are illustrative and not

exhaustive. To be noted, Bhajan Lal case law itself says so. Be that as it may, time honoured principle that in matters seeking quashment of a

criminal complaint, uncontroverted averments in the complaint without

any addition or subtraction should be looked into to examine whether an

offence can be made out or not (if proved) continues to operate as the

basic and fundamental test. In this view of the matter, a careful granular analysis of Sections 276C(1), 277 and 278 of IT Act and the ingredients of the same leaves this court with the considered view that it is unable to persuade itself and believe that even if all the averments / allegations in complaints are proved to the hilt in the trial, an offence will not be made out, though the prosecution is based on search / seizure and not on returns. In other words, it all depends on what unfurls in the trial.

21. Further, prosecution (based on search / seizure and not

assessment under IT Act) being by way of criminal complaints other than

on a police report, i.e., said criminal complaints, a careful reading of two complaints, i.e., said criminal complaints inter-alia in the context of retraction (by purchaser company) submission of petitioners leaves no

room for doubt or disputation that these are clearly matters for trial and no ground for quash has been made out.

22. To be noted, a long line of authorities starting from

P.Jayappan Vs. S.K.Perumal, First Income-Tax Officer, Tuticorin

reported in 1984 (Supp) SCC 437 were read out to this Court. Owing to

the stated position of the learned Prosecutors for IT Department that

complaints are not based on assessment/s and that they are based on

search / seizure, this Court deems it appropriate to not to discuss the

same in great length, as it is a case of avoidable prolixity, which if not avoided will only make this order needlessly verbose.

23. This leaves us with the point regarding prosecution being

launched on the basis of statement of third parties (third point in

summation supra). Discussion supra regarding alleged corroboration

between soft copies recovered from the company in which one of the

petitioners is the Director (shared by Enforcement Directorate with IT

Department) and small note books in the purchaser company becomes

relevant in this regard. The third point raised by petitioners gets

neutralized by stated position of prosecution that there is corroboration between soft copies seized from company in which one of the petitioners is a Director and purchaser. Besides being a matter for trial, it puts to rest the ground that prosecution is based solely on statements of third parties (purchaser company). Therefore, in the light of the discussion supra regarding principles for quashment, facts and circumstances of this case, it cannot be gainsaid by petitioners that prosecution has been launched solely based on the statement made by some third parties.

24. The aforesaid narrative leaves this court with the considered

view that issues that arise in said criminal complaints are matters for trial and no ground has been made out for quashing the same. Therefore, in third and fourth Crl.O.Ps, I find for IT Department, hold that they are liable to be dismissed and therefore, Crl.O.P.Nos.1526 and 1527 of 2020 fail.

25. As the prayers for quash qua said criminal complaints fail, it

has now become necessary to embark upon the exercise of examining the

petitioners' challenge to transfer of two criminal cases from EO court to Sessions Court.

26. Before setting out the rival submissions made in this regard

and before embarking upon the exercise of discussing rival submissions

and articulating the dispostive reasoning of this Court, it is necessary to give an adumbration of some facts (to be noted, most of these facts have not been subjected to disputation / contestation) and the same (with dates wherever applicable) is as follows:

(a) Said criminal complaints, i.e., both criminal

complaints were filed in the Court of Additional Chief

Metropolitan Magistrate (E.O.II), Egmore, Chennai, i.e.,

EO Court on 12.09.2018. To be noted, it is urged by the

petitioners that this is also a court constituted under section

280A of IT Act and is therefore constituted under a law

(statute) other than Cr.P.C as described in section 6 of

Cr.P.C. To be noted, this point is in the realm of disputation

/ contestation.

(b)The court to which said criminal complaints, i.e.,

two criminal complaints have now been transferred is a

Special Court for trial of Criminal Cases related to elected

M.Ps/M.L.As. of Tamil Nadu, Singaravelan Maligai,

Chennai. To be noted, there is no disputation or

disagreement that this transferee Court, i.e., Sessions court

is a Court of Sessions within the meaning of section 6(i) of

Cr.P.C. There is also no disputation or disagreement that

this is not a court constituted under any law other than

Cr.P.C. within the meaning of section 6 of Cr.P.C.

(c) On the date of filing of said criminal

complaints in aforementioned EO Court, both petitioners

were neither M.P./M.L.A. nor former M.P./M.L.A.

(d) In the case on hand, said criminal complaints

entail maximum punishment of seven years and therefore,

they are magisterial offences.

(e) If said criminal complaints are tried by

Economic Offence court-II, i.e., EO Court in which they

were filed and if they are disposed of by said court, an

appeal against conviction (if that be so) will lie to Principal

Sessions Judge, City Civil Court, Chennai under section

374(3) of Cr.P.C. If offences are tried by the transferee

court, i.e., Special Court for trial of Criminal Cases related

to elected M.Ps/M.L.As. of Tamil Nadu and if it is disposed

of by that court, an appeal will lie to this court (High Court)

under section 374(2) of Cr.P.C.

(f) In the light of the aforesaid two points, post

disposal of appeal by Principal Judge, City Civil Court,

Chennai, a revision will lie to this court under section 397

Cr.P.C., but that will obviously not be available if said

criminal complaints are tried and disposed of by transferee

court and an appeal is decided by this court in an appeal

under section 374(2). In other words, to put it differently, if

said criminal complaints are tried by Economic offences

Court, i.e., EO court, then parties can prefer a revision

under section 397 of Cr.P.C to this court post appeal, but

the same will be unavailable if it is tried and disposed of by

transferee court, i.e., Sessions court.

(g) While EO court has original jurisdiction,

transferee court which is a Sessions court (within the

meaning of section 6(i) of Cr.P.C.) does not have original

jurisdiction. The Sessions court which does not have

original jurisdiction cannot directly take cognizance of an

offence unless there is committal.

(h) Vide G.O.Ms.No.1293 dated 24.05.1982, third

respondent Government of Tamil Nadu constituted two

Additional Metropolitan Magistrate courts in the city of

Chennai for speedy trial of economic offences in the State

of Tamil Nadu. To be noted, EO Court we are concerned

with is one of these two courts. (To be noted, G.O. denotes

Government Order).

(i) Pursuant to directions given by Hon'ble

Supreme Court in Ashwini Kumar Upadhyay case,

G.O.Ms.No.1423 was made on 6.9.2018 constituting a

Special Court at Chennai (for entire State of Tamil Nadu) to

try criminal cases involving elected Members of Parliament

and Members of Legislative Assembly of Tamil Nadu,

followed by G.O.Ms.No.1568 dated 17.9.2018, whereby

amendment notification has been issued to the effect that 'a

Special Court in the cadre of Sessions Judge at Chennai'

will stand substituted in place of the expression 'a Special

Court at Chennai'. This was further followed by as many as

five G.Os, namely G.O.Ms.No.209 to G.O.Ms.No.213, all

dated 26.04.2019. Net / combined effect of these five G.Os

is, Special Courts to try cases involving M.P/M.L.As

throughout Tamil Nadu (every Judicial District / Sessions

Division) were created at both Sessions and Magisterial

levels. In Chennai, such Courts became four in number and

they are, two Special Courts in Sessions Cadre, one in

Assistant Sessions Cadre and one Magistrate Court (To be

noted, this Magistrate Court is II Metropolitan Magistrate

Court, Egmore, Chennai) falling under section 6(ii) of

Cr.P.C. To be noted, while it is Metropolitan Magistrate in

Chennai, it is Judicial Magistrate in other Divisions /

judicial Districts.

(j) This Court is informed that after as many as 14

hearings in the EO court between 19.9.2018 and 8.7.2019,

said criminal complaints were transferred to transferee

court. With regard to the date of transfer as mentioned

elsewhere (supra in this order), a combined reading of two

memoranda of fourth respondent (both dated 07.06.2019

and both bearing same reference being Roc

No.5745/2018/G4) and a letter from fourth respondent to

Principal Judge of City Civil Court, Chennai suggest that

they pertain inter-alia to transfer of said criminal complaints

to designated court for trying offences against

M.Ps/M.L.As., but it does not give the date of transfer with

exactitude and specificity. This was put to learned counsel

for 4th respondent. Learned counsel for 4th respondent after

taking instructions, adverted to communications dated

10.7.2019 in Dis.No.174/2019 and Dis.No.173/2019 from

the Additional Chief Metropolitan Magistrate (E.O.II),

Egmore, Chennai inter-alia to petitioners and submitted that

the actual date of transfer is 10.7.2019. Therefore, from

hereon, this order will proceed on the basis that the date of

transfer of said criminal complaints from EO Court to

transferee court is 10.7.2019.

(k) After transferring said criminal complaints

which form subject matter of the cases on hand, Registrar

General of this Court (fourth respondent in first and second

Crl.O.Ps) vide proceedings dated 6.9.2019 bearing Roc

No.5745/2018/G4 wrote to Government of Tamil Nadu, in

other words, fourth respondent wrote to third respondent

for non designating II Metropolitan Magistrate Court citing

workload.

(l) Pursuant to aforesaid 06.09.2019 proceedings

of fourth respondent, Government issued G.O.Ms.No.535,

dated 11.10.2019 non designating II Metropolitan

Magistrate Court.

27. Having set out some of the most essential (mostly

undisputed) facts regarding transfer of said criminal complaints from EO

Court to Sessions Court, before proceeding further, i.e., before setting

out rival submissions, embarking upon the exercise of examining the

same and giving dispositive reasoning, this court deems it appropriate to give an adumbration of various provisions of law which are relevant to the discussions and dispositive reasoning to follow. Though referred to as an adumbration, this court deems it appropriate (for the sake of

convenience, clarity and specificity) to set out the same as a narrative

with short discussions wherever imperative and adumbration rolled into

one, which is as follows:

(a) Chapters XXI and XXII of IT Act captioned

‘Penalty Imposable’ and ‘Offences and Prosecutions’

respectively containing sections 270 to 275 (Chapter XXI) and

sections 275A to 280D (Chapter XXII) are of relevance. To be

noted, said criminal complaints, as already alluded to supra, are

under sections 276C(1), 277 of IT Act and said provisions read

with 278 of IT Act. Therefore, the three main provisions of law

qua said criminal complaints are contained in Chapter XXII of

IT Act.

(b) Section 279A of IT Act captioned ‘Certain offences

to be non-cognizable’ reads as follows :

‘279A. Certain offences to be non-cognizable.—

Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974), an offence

punishable under section 276B or section 276C or

section 276CC or section 277 or section 278 shall be

deemed to be non-cognizable within the meaning of

that Code.’

(c) A perusal of Section 279A of IT Act makes it clear

that all the three provisions of IT Act which have been invoked

qua said criminal complaints are deemed to be non cognizable

offences and there is a non obstante clause qua Cr.P.C., i.e., that

it is notwithstanding anything contained in Cr.P.C.

(d) Section 292 of IT Act captioned ‘Cognizance of

offences’ (to be noted, this is outside of Chapters XXI and XXII

referred to supra) refers to offences under IT Act in general

which reads as follows:

‘292. Cognizance of offences.—No court inferior to that of a

presidency magistrate or a magistrate of the first class shall try

any offence under this Act.’

(e) A perusal of section 292 of IT Act makes it clear

that all offences under IT Act including alleged offences under

three provisions of law qua said criminal complaints shall not be

tried by a court inferior to that of a Presidency Magistrate /

Magistrate of the First Class Court which can now be read as

Magistrate, as this court is informed without any disputation that

the distinction between Magistrates of First and Second Classes

have since been done away with.

(f) ‘Court of Session’ is defined, described and

explained including jurisdiction in section 9 of Cr.P.C. Likewise,

‘Courts of Metropolitan Magistrates’ is defined, described and

explained including jurisdiction in section 16 of Cr.P.C. Sections

9 and 16 of Cr.P.C read as follows:

‘9. Court of Session.—(1)The State Government

shall establish a Court of Session for every sessions

division.

(2)Every Court of Session shall be presided over by a

Judge, to be appointed by the High Court.

(3)The High Court may also appoint Additional

Sessions Judges and Assistant Session Judges to

exercise jurisdiction in a Court of Session.

(4)The Sessions Judge of one sessions division may

be appointed by the High Court to be also an

Additional Sessions Judge of another division, and in

such case he may sit for the disposal of cases at such

place or places in the other division as the High Court

may direct.

(5)Where the office of the Sessions Judge is vacant,

the High Court may make arrangements for the

disposal of any urgent application which is, or may be,

made or pending before such Court of Session by an

Additional or Assistant Sessions Judge, or, if there be

no Additional or Assistant Sessions Judge, by a Chief

Judicial Magistrate, in the sessions division; and every

such Judge or Magistrate shall have jurisdiction to

deal with any such application.

(6)The Court of Session shall ordinarily hold its

sitting at such place or places as the High Court may,

by notification, specify; but, if, in any particular case,

the Court of Session is of opinion that it will tend to

the general convenience of the parties and witnesses

to hold its sittings at any other place in the sessions

division, it may, with the consent of the prosecution

and the accused, sit at that place for the disposal of the

case or the examination of any witness or witnesses

therein.

Explanation.—For the purposes of this Code,

“appointment” does not include the first appointment,

posting or promotion of a person by the Government

to any Service, or post in connection with the affairs

of the Union or of a State, where under any law, such

appointment, posting or promotion is required to be

made by Government.

16. Courts of Metropolitan Magistrates.—(1)In

every metropolitan area, there shall be established as

many Courts of Metropolitan Magistrates, and at such

places, as the State Government may, after

consultation with the High Court, by notification,

specify.

(2)The presiding officers of such Courts shall be

appointed by the High Court.

(3)The jurisdiction and powers of every Metropolitan

Magistrate shall extend throughout the metropolitan

area.’

(g) As far as said criminal complaints, which we are

concerned with in the cases on hand, they fall under the

category of offences under ‘other laws’. This takes us to section

4, more particularly sub-section (2) of section 4 of Cr.P.C. This

court deems it appropriate to reproduce entire section 4 of

Cr.P.C which reads as follows:

‘4.Trial of offences under the Indian Penal

Code and other laws.—(1)All offences under the

Indian Penal Code (45 of 1860) shall be

investigated, inquired into, tried, and otherwise

dealt with according to the provisions hereinafter

contained.

(2)All offences under any other law shall be

investigated, inquired into, tried, and otherwise

dealt with according to the same provisions, but

subject to any enactment for the time being in

force regulating the manner or place of

investigating, inquiring into, trying or otherwise

dealing with such offences.’

(h) While perusing sub section (2) of section 4 of

Cr.P.C., one has to bear in mind that the terms ‘investigation’

and ‘inquiry’ occurring therein have been defined in sections

2(h) and 2(g) respectively of Cr.P.C. Sections 2(g) and 2(h)

read as follows :

‘2.Definitions.—In this Code, unless the context

otherwise requires,—

(g) “inquiry” means every inquiry, other than a

trial, conducted under this Code by a Magistrate or

Court;

(h) “investigation” includes all the proceedings

under this Code for the collection of evidence

conducted by a police officer or by any person

(other than a Magistrate) who is authorised by a

Magistrate in this behalf;’

(i) Inter-alia with regard to definitions, Cr.P.C is

dovetailed with ‘The Indian Penal Code,’ (‘IPC’ for brevity)

and therefore, it is necessary to have a look at Section 2(y) of

Cr.P.C also, which reads as follows:

‘(y) words and expressions used herein and not

defined but defined in the Indian Penal Code (45 of

1860) have the meanings respectively assigned to

them in that Code.’

(j) Be that as it may, reverting to sub section (2) of

section 4, as the cases on hand fall under offences under ‘any

other law’ category, it becomes necessary to have a close look

at Sections 280A and 280B of IT Act captioned ‘Special

Courts’ and ‘Offences triable by Special Court’ respectively

which read as follows :

‘280A. Special Courts.—(1) The Central

Government, in consultation with the Chief Justice

of the High Court, may, for trial of offences

punishable under this Chapter, by notification,

designate one or more courts of Magistrate of the

first class as Special Court for such area or areas or

for such cases or class or group of cases as may be

specified in the notification.

Explanation.—In this sub-section, “High Court”

means the High Court of the State in which a

Magistrate of first class designated as Special Court

was functioning immediately before such

designation.

(2) While trying an offence under this Act, a

Special Court shall also try an offence, other than

an offence referred to in sub-section (1), with

which the accused may, under the Code of Criminal

Procedure, 1973 (2 of 1974), be charged at the

same trial.

280B. Offences triable by Special Court.—

Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974),—

(a) the offences punishable under this Chapter shall

be triable only by the Special Court, if so

designated, for the area or areas or for cases or

class or group of cases, as the case may be, in

which the offence has been committed:

Provided that a court competent to try offences

under section 292,—

(i) which has been designated as a Special Court

under this section, shall continue to try the offences

before it or offences arising under this Act after

such designation;

(ii) which has not been designated as a Special

Court may continue to try such offence pending

before it till its disposal;

(b) a Special Court may, upon a complaint made by

an authority authorised in this behalf under this Act

take cognizance of the offence for which the

accused is committed for trial.’

(Underlining and double underlining made by

me to supply emphasis and highlight)

(k) There is no disputation or disagreement before this

Court that the Central Government in consultation with Chief

Justice of this Court has not notified and designated any one or

more of Magisterial level Special Courts within the meaning of

Section 280A of IT Act as far as Tamil Nadu is concerned. To

be noted, this court is informed by learned Prosecutors on

instructions albeit without any disagreement / disputation by

petitioners that this has been done in some other States. Be that

as it may, we have to necessarily revert to Cr.P.C. When we

revert to Cr.P.C., with regard to Metropolitan areas, the same

has been described in section 8 of Cr.P.C., which reads as

follows:

‘8. Metropolitan areas.—(1) The State

Government may, by notification, declare that, as

from such date as may be specified in the

notification, any area in the State comprising a city

or town whose population exceeds one million shall

be a metropolitan area for the purposes of this Code.

(2) As from the commencement of this Code, each

of the Presidency-towns of Bombay, Calcutta and

Madras and the city of Ahmedabad shall be deemed

to be declared under sub-section (1) to be a

metropolitan area.

(3) The State Government may, by notification,

extend, reduce or alter the limits of a metropolitan

area but the reduction or alteration shall not be so

made as to reduce the population of such area to less

than one million.

(4) Where, after an area has been declared, or

deemed to have been declared to be, a metropolitan

area, the population of such area falls below one

million, such area shall, on and from such date as

the State Government may, by notification, specify

in this behalf, cease to be a metropolitan area; but

notwithstanding such cesser, any inquiry, trial or

appeal pending immediately before such cesser

before any Court or Magistrate in such area shall

continue to be dealt with under this Code, as if such

cesser had not taken place.

(5) Where the State Government reduces or alters,

under sub-section (3), the limits of any metropolitan

area, such reduction or alteration shall not affect

any inquiry, trial or appeal pending immediately

before such reduction or alteration before any Court

or Magistrate, and every such inquiry, trial or appeal

shall continue to be dealt with under this Code as if

such reduction or alteration had not taken place.

Explanation.—In this section, the expression

“population” means the population as ascertained at

the last preceding census of which the relevant

figures have been published.’

(l) As far as classes of Courts are concerned, the

adumbration is in section 6 of Cr.P.C. which reads as follows:

‘6.Classes of Criminal Courts.—Besides the High

Courts and the Courts constituted under any law,

other than this Code, there shall be, in every State,

the following classes of Criminal Courts, namely:-

(i) Courts of Session;

(ii) Judicial Magistrates of the first class and, in any

metropolitan area, Metropolitan Magistrates;

(iii) Judicial Magistrates of the second class; and

(iv) Executive Magistrates.’

(m) Having had a close look at the classes of Courts

and also having noticed that Special Court within the meaning

of IT Act has not been designated, one has to examine by which

court, said criminal complaints are triable. For this, section 26

of Cr.P.C becomes relevant and the same reads as follows:

‘26.Courts by which offences are triable.—Subject

to the other provisions of this Code,—

(a)any offence under the Indian Penal Code (45

of 1860) may be tried by-

(i)the High Court, or

(ii)the Court of Session, or

(iii)any other Court by which such offence is

shown in the First Schedule to be triable:

Provided that any offence under section 376,

section 376-A, section 376-AB, section 376-B, section

376-C, section 376-D, section 376-DA, 376-DB or

section 376-E of the Indian Penal Code (45 of 1860)]

shall be tried as far as practicable by a Court presided

over by a woman.

(b)any offence under any other law shall, when

any Court is mentioned in this behalf in such law, be

tried by such Court and when no Court is so

mentioned, may be tried by—

(i)the High Court, or

(ii)any other Court by which such offence is

shown in the First Schedule to be triable.’

(n) As no special court has been designated within

the meaning of section 280A of IT Act, it is clear that instant

cases fall under section 26(b) of Cr.P.C. Section 26(b) in turn

leads to First Schedule of Cr.P.C. First Schedule of Cr.P.C is

in two parts, namely, Part-I and Part-II. While Part-I of First

Schedule of Cr.P.C deals with offences under IPC, Part-II of

First Schedule of Cr.P.C deals with classification of offences

qua / against other laws. Considering the importance of such

classification for cases on hand, this court deems it appropriate

to extract and reproduce entire Part-II of First Schedule of

Cr.P.C which is as follows:

II.—CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS

Offence Cognizable or

non-cognizable

Bailable or non-bailable

By what court triable

In punishable with

death, imprisonment

for life, or

imprisonment for

more than 7 years

Cognizable Non-bailable Court of

Session.

If punishable with

imprisonment for 3

years and upwards

but not more than 7

Ditto Ditto Magistrate

of the first

class.

years

If punishable with

imprisonment for

less than 3 years or

with fine only.

Non-cognizable Bailable Any

Magistrate.

(o) A perusal of Part-II reveals that cases on hand fall

under second Entry under Part-II of First Schedule.

(p) In this regard, it may be necessary to remind

oneself about section 279A of IT Act (reproduced supra),

whereby offences qua said criminal complaints have been

made as non cognizable and therefore, in the second column

with regard to second Entry which we are concerned with,

'cognizable' will have to be read as 'non cognizable' for the

purpose of cases on hand.

28 In the aforesaid backdrop, adumbration of relevant

provisions, trajectory of events and undisputed fact setting, broad

summation of arguments made by petitioners assailing transfer is as

follows :

(a) Said criminal complaints against petitioners

being complaints of alleged offences under sections 276C(1),

277 of IT Act and said provisions read with section 278 of IT

Act, the maximum punishment is seven years, owing to

which they are magisterial offences and therefore, transfer of

said criminal complaints to a Sessions Court is bad in law;

(b) Impugned transfer deprives petitioners the

possibility of seeking revision in this court (High Court)

under section 397 of Cr.P.C., if the need arises depending on

the trajectory of said criminal complaints.

(c) The transferee court being Court of Sessions

lacks jurisdiction as there is no committal. Absent committal,

Sessions court, i.e., transferee court cannot hear the said

criminal complaints as transferee court does not have

original jurisdiction.

(d) EO Court, i.e., Economic Offence court-II,

Egmore in which complaints were originally filed is a

Special Court within the meaning of section 280A of IT Act,

the alleged offences under sections 276C(1), 277 of IT Act

and said provisions read with section 278 of IT Act are

triable by such a Special Court and therefore, the transfer is

bad. To be noted, counsel for petitioners referring to

aforementioned G.O.Ms.No.1293 dated 24.05.1982

submitted that this should be construed as such a

notification.

(e) On the date of alleged offence as well as on the

date of filing of said criminal complaints, both petitioners

were neither M.Ps/M.L.As nor former M.Ps/M.L.As; even as

on the date of transfer, i.e., 10.7.2019, only one of the

petitioners had become a sitting M.P.

29 In response to aforesaid submissions, respondents, more

particularly, learned counsel for fourth respondent made submissions,

summation of which is as follows:

(a) Magisterial offence can be tried by a higher

court and there is no bar in law for such a course;

(b) The concept of committal and court of

Sessions lacking original jurisdiction cannot be pressed into

service as the same does not apply to cases of transfer;

(c) Petitioners are not deprived of any right of

appeal owing to transfer, as, if the case had been disposed

of by Economic Offence Court-II, i.e., EO Court, an appeal

against conviction will lie to Principal Judge, City Civil

Court, Chennai under section 374(3) of Cr.P.C and if the

case is disposed of by transferee court, appeal will lie to

High Court under section 374(2) of Cr.P.C. In other words,

only Appellate forum will change and there can be no

objection to this at the instance of petitioners;

(d) Revision under section 397 Cr.P.C. is a

discretionary jurisdiction and it is not a legal right.

(e) As a corollary to preceding two submissions, it

was argued that there can be no complaint of one tier being

taken away, besides saying that taking one tier away is

permissible;

(f) II Metropolitan Magistrate's court which was

designated to try cases involving M.Ps./M.LAs had to be

non designated only owing to the volume of cases / work

load there and petitioners cannot object to the same;

(g) Transfer was done in deference to the direction

given by Hon'ble Supreme Court in Ashwini Kumar

Upadhyay case and therefore, petitioners cannot contest or

find fault with the same.

(h) Relevant date for deciding whether a particular

case involving M.Ps/M.L.As is the date of transfer and not

date of launching of complaint or date of alleged offence.

30. To be noted, elaborate submissions touching upon very

many aspects of the matter were advanced and those of the submissions

which are germane to the issue on hand or in other words, those of the

rival submissions which are relevant to the bone of contention, i.e.,

challenge to transfer have been set out as broad summations supra for the sake of clarity and specificity.

31. For the purpose of discussion on rival submissions and for

the purpose of setting out and articulating dispositive reasoning, this

court deems it pertinent to extract and reproduce relevant portions of four orders of Hon'ble Supreme court in Ashwini Kumar Upadhyay case

which are pivotal and significant qua transfer (being relevant portions of orders dated 01.11.2017, 14.12.2017, 04.12.2018 and 25.03.2019), which read as follows :

'Relevant portion of order dated 01.11.2017 :

4.Insofar as setting up of Special Courts are concerned, setting

up of Special Courts and infrastructure would be dependent on

the availability of finances with the States. Without going into

the controversy raised on the aforesaid score, the problem can

be resolved by having a Central Scheme for setting up of

Courts exclusively to deal with criminal cases involving

political persons on the lines of the Fast Track Courts which

were set up by the Central Government for a period of five

(05) years and extended further which Scheme has now been

discontinued.

Relevant portion of order dated 14.12.2017 :

Immediately after such allocation is made and intimated to the

respective State Governments, the State Governments in

consultation with the High Courts will set up the Fast Track

Courts (12 in all) to ensure that the said Courts start

functioning from 01.03.2018. All necessary/required

notification(s) shall be issued by the concerned/respective

State Government(s). The High Court(s), acting through the

various trial Courts, will trace out from the case records the

particular 5 case(s) pending in the files of the respective

judicial officers under the jurisdiction of the High Court(s)

which are required to be dealt with by the Special Courts

under the Scheme and thereafter transfer the said cases to such

Special Courts(s) for adjudication.

Relevant portion of order dated 04.12.2018 :

Having considered the matter we are of the view that the

suggestions of the learned Amicus Curiae should be tried out

with certain modifications and in a limited manner which is

indicated below:

1. Instead of designating one Sessions Court and one

Magisterial Court in each District we request each High Court

to assign/allocate criminal cases involving former and sitting

legislators to as many Sessions Courts and Magisterial Courts

as the each High Court may consider proper, fit and expedient.

This, according to us, would be a more effective step instead

of concentrating all the cases involving former and sitting

legislators in a Special Court(s) in the district.

(Underlining and double underlining made by this Court to

highlight)

Relevant portion of order dated 25.03.2019 :

Having heard the learned counsel for the applicant, we

deem it appropriate to ensure full compliance of our previous

Order passed in Writ Petition (C) No. 699 of 2016.

We direct the Registrar General of the High Court of

Judicature at Madras to transfer all criminal cases related to

MPs and MLAs pending under its jurisdiction to the Special

Court for cases related to Elected MP and MLA of Tamil

Nadu, Chennai.'

32. To be noted, it is the stated position of learned counsel for

fourth respondent that transfer of said criminal complaints from EO

Court to Sessions Court was done in accordance with the orders of

Hon’ble Supreme Court in Ashwini Kumar Upadhyay case and more

particularly, in accordance with the aforementioned orders. To be noted,

besides aforementioned orders of Hon’ble Supreme Court, there is one

more order of Hon’ble Supreme Court in Ashwini Kumar Upadhyay case

being order dated 21.08.2018 which is of significance and relevant

portion of the same reads as follows:

‘We would like the Union of India to lay before the Court the

following information:

1.Number of Special Courts set up pursuant to the order of this

Court dated 14th December, 2017;

2.Whether the courts set up are Courts of Sessions or Magisterial

Courts;

3.The territorial jurisdiction of each of these Courts;

4.Number of cases pending before each of these Courts, with

break-up of Magisterial and Sessions triable cases;

5.Whether the Union of India intends to set up additional number

of Courts over and above the Courts that may have already been

set up pursuant to the order of this Court dated 14th December,

2017. The details in this regard may also be furnished.’

33. Directions of Hon'ble Supreme Court in Ashwini Kumar

Upadhyay case, including aforementioned directions, sequence of letters,

proceedings issued by fourth respondent and Government Orders issued

by third respondent have been collated from different papers, typed sets

forming part of case file and they are set out in chronological order and the same is as follows:

(i)Hon’ble Supreme Court order dated 01.11.2017.

(ii)Hon’ble Supreme Court order dated 14.12.2017.

(iii)UOI Law Secretary letter dated 16.01.2018.

(iv)D.O. Letter No.5745/2018/G4 dated 21.2.2018 issued by R-4.

(v)G.O.Ms.No.697 dated 9.7.2018 issued by R-3.

(vi).Hon’ble Supreme Court order dated 21.08.2018.

(vii)G.O.Ms.No.1423 dated 6.9.2018 issued by R-3.

(viii)Hon’ble Supreme Court order dated 12.09.2018.

(ix)OM in Roc No.5745/2018/G4 dated 14.9.2018 issued by R-4.

(x)Roc No.5745/2018/G4 dated 14.09.2018 issued by R-4.

(xi)G.O.Ms.No.1568 dated 17.9.2018 by R-3.

(xii)OM in Roc No.5745/2018/G4 dt.19.9.2018 issued by R-4.

(xiii)Hon’ble Supreme Court order dated 04.12.2018.

(xiv)Letter in Roc No.5745/2018/G4 dt.5.3.2019 issued by R-4.

(xv)Hon’ble Supreme Court order dated 25.03.2019.

(xvi)Letter in Roc No.5745/2018/G4 dt.12.4.2019 issued by R-4.

(xvii)G.O.Ms.No.209, dated 26.04.2019 issued by R-3.

(xviii)G.O.Ms.No.210, dated 26.04.2019 issued by R-3.

(xix)G.O.Ms.No.211, dated 26.04.2019 issued by R-3.

(xx)G.O.Ms.No.212, dated 26.04.2019 issued by R-3.

(xxi)G.O.Ms.No.213, dated 26.04.2019 issued by R-3.

(xxii)OM in Roc No.5745/2018/G4 dt.7.6.2019 by R-4.

(xxiii)OM in Roc No.5745/2018/G4 dt.7.6.2019 by R-4.

(xxiv)Letter in Roc No.5745/2018/G4 dt.9.7.2019 by R-4.

(xxv)OM in Roc No.5745/2018/G4 dt.17.7.2019 by R-4.

(xxvi)Letter in Roc No.5745/2018/G4 dt.6.9.2019 by R-4.

(xxvii)G.O.Ms.No.535 dated 11.10.2019 issued by R-3.

34. Upto Serial No.(xxv) above, there is absolutely no difficulty.

However, sequence of one proceedings of fourth respondent and

consequent Government order issued by third respondent thereafter being

proceedings dated 06.09.2019 made by fourth respondent and

G.O.Ms.No.535 dated 11.10.2019 by third respondent which have been

given serial numbers (xxvi) and (xxvii) chronologically supra present

some problem and there will be discussion about this infra elsewhere in

this order. In this regard, it may be necessary to have a birds eye view of aforementioned xxv proceedings, letters, orders, etc., upto which there is no difficulty.

35. Vide 01.11.2017 order, Hon’ble Supreme Court directed a

central scheme on the line of fast track courts for five years, which was extended and thereafter, discontinued. Such a central scheme was

proposed for fast tracking cases involving former and present M.Ps/

M.L.As and directives in this regard were given. Thereafter, vide

14.12.2017 order, Hon’ble Supreme Court noticed the position that all

data are yet to be collected, but plans and financial sanction for 12 courts(pan India) have been put in place.

36. Thereafter, the Law Secretary of Union of India appears to

have written a letter dated 16.01.2018 inter-alia to fourth respondent, but the same or copy of the same has not been placed before this Court.

However, in proceedings of fourth respondent dated 21.02.2018 (cited as

Sl.No.(iv) supra), this 16.01.2018 letter from the Law Secretary has been cited as No.1 in reference and the 21.02.2018 proceedings say that the same have been made by 4th respondent inter-alia pursuant to this letter.

Be that as it may, vide 21.02.2018 proceedings, fourth respondent

requested third respondent for constitution of one Special Court in

Chennai which shall be the XXI Additional District / Sessions Judge, as

this Court is informed that there are already 20 Additional District

/Sessions Judges in Chennai. Pursuant to 21.02.2018 letter from fourth

respondent, third respondent issued G.O.Ms.No.697 on 09.7.2018,

wherein sanction was accorded for constitution of one Special Court.

Sanction of one District Judge and 13 staff was accorded and it was made

clear that the same will be notified subsequently. Thereafter, Hon’ble

Supreme Court noticed that 12 Special Courts Pan India have been

constituted. What is of relevance is these 12 special courts constituted

Pan India as noticed by Hon’ble Supreme Court includes the

aforementioned one special court constituted in Tamil Nadu vide

G.O.Ms.No.697 dated 9.7.2018. In this regard, points 2 and 4 of order

dated 21.8.2018 made by Hon’ble Supreme Court (which have already

been extracted and reproduced supra elsewhere in this order) are

relevant.

37. Thereafter, third respondent issued a Government Order

being G.O.Ms.No.1423 dated 06.09.2018 notifying the Special Court

constituted vide G.O.Ms.No.697 dated 9.7.2018. Thereafter, Hon’ble

Supreme Court passed one more order dated 12.09.2018 wherein after

referring to earlier order dated 21.8.2018 and more particularly points 2 and 4 thereat (extracted and reproduced supra), Hon’ble Supreme Court

wanted to know whether 12 Special Courts Pan India are sufficient or

some more courts are required. When things stood as above, fourth

respondent issued proceedings dated 14.9.2018 (Sl.No.(x) supra) saying

that committal of cases to sessions Court, i.e., aforementioned Special

Court constituted vide G.O.Ms.No.697 in Chennai shall not be done

directly, but shall be done to respective jurisdictional courts and

thereafter, the same shall be committed to the special court in Chennai.

To be noted, upto this point of time, (as already mentioned supra), there was only one special court for trying cases involving former / present M.Ps / M.L.As, for the whole of Tamil Nadu and that one special court was constituted in Chennai vide G.O.Ms.No.697 dated 9.7.2018 (notified vide G.O.Ms.No.1423 dated 6.9.2018) which has also been referred to elsewhere supra in this order.

38. Thereafter, one more proceedings was made by fourth

respondent on the same day, i.e., 14.9.2018. Fourth respondent wrote to

third respondent saying that in G.O.Ms.No.697, it has been mentioned

that the special court is in the cadre of Sessions Judge, but that has not been included in the notification vide G.O.Ms.No.1423 and made a

request that the expression ‘in the cadre of Sessions Judge at Chennai’

shall be included in the notification. Pursuant to this letter, third

respondent issued G.O.Ms.No.1568 dated 17.9.2018 (Sl.No.11)

including the aforesaid expression in the notification vide

G.O.Ms.No.1423. This was followed by 19.9.2018 proceedings /

communication written by fourth respondent to all Principal District

Judges in the Sessions Districts of Tamil Nadu saying that inauguration

of sole special court in Chennai for trying criminal offences involving

sitting / former M.Ps./M.L.As is scheduled to be held on 20.09.2018 and

vide this letter, fourth respondent requested all Principal District Judges to transmit the records to this special Court.

39. Thereafter, the most important and crucial order came to be

passed by Hon’ble Supreme Court and this order is dated 04.12.2018,

which has been extracted and reproduced supra. In and by this order,

Hon’ble Supreme Court accepted the second report of amicus for

designating sessions and magistrate courts, more particularly, as many

Sessions courts and as many magistrate Courts as required in each

District. Thereafter, 05.03.2019 letter of fourth respondent (Sl.No.xiv)

came to be sent. Interestingly, in this letter, fourth respondent has

observed that there are no magisterial offences involving present or

former M.Ps / M.L.As in Chennai. Besides this, fourth respondent in this

letter has referred to clubbing of both Sessions trial and Magisterial trial cases in one court and the relevant portion of this letter in this regard reads as follows:

'It is specifically suggested in paragraph 13 (3) of the

report of the learned Amicus Curiae that some of the Courts

where special Courts have been constituted appeared to have

clubbed both the Sessions trial and Magisterial trial Cases in

one Court, which is not permissible in law.'

It is under these circumstances that Hon’ble Supreme Court passed

further directions in I.A.No.31721 of 2019 dated 25.03.2019. Vide this

directive, Hon’ble Supreme Court directed that all pending criminal

cases relating to MPs and MLAs have to be transferred to the Special

courts for fast tracking. Thereafter, fourth respondent appears to have

written a letter dated 12.04.2019 (this letter was not placed before this Court, but there is a reference to this letter in G.O.Ms.No.209 dated 26.04.2019).

40. It is under these circumstances, third respondent issued

abovementioned G.O.Ms.No.209 dated 26.04.2019. It is clear that this

Government order is pursuant to fourth respondent’s aforementioned

letter dated 12.04.2019 and vide this G.O.Ms.No.209 dated 26.04.2019,

one more special court in the cadre of sessions Judge, one more

additional special court in the cadre of Assistant Sessions Judge were

constituted and the same were notified vide G.O.Ms.No.210 dated

26.04.2019. Thereafter, G.O.Ms.Nos.211 and 212 also came to be issued

on the same day, namely 26.04.2019. A combined reading of

G.O.Ms.Nos.211 and 212 brings to light that all Principal District Judges in all Sessions Divisions (other than Chennai) in Tamil Nadu were

designated as Special Courts to try cases involving sitting and former

M.Ps / M.L.As and therefore, the notification made vide

G.O.Ms.No.1423 dated 6.9.2018 and G.O.Ms.No.1568 dated 17.9.2018

stood modified to the effect that the Special Court in Chennai is not for entire Tamil Nadu, but only for Chennai. On the same day, i.e., on

26.04.2019, one more Government order being G.O.Ms.No.213 came to

be made and this is all too critical / crucial for the cases on hand. Vide this G.O.Ms.No.213, one Metropolitan magistrate in Chennai and 31

Judicial Magistrates in 31 Judicial Districts came to be notified as

designated Special courts for trying magisterial offences involving

former and sitting M.Ps/ M.L.As. To be noted, II Metropolitan

Magistrate, Chennai was designated for this purpose as far as Chennai

District is concerned and it is further to be noted that we are concerned with Chennai District as said criminal complaints are in Chennai District.

41. Thereafter, two proceedings both dated 7.6.2019 (xxii and

xxiii supra) came to be made by fourth respondent followed by a letter

9.7.2019 (xxiv supra) and another proceedings dated 17.7.2019 (xxv

supra). Sum totality of these proceedings and letter are to the effect that these designated courts were directed to draw up calendars for day today trial, besides directing Principal Judges and Chief Judicial /Metropolitan Magistrates to ensure equal distribution of work (transfer of cases from Economic Offences court also), besides saying that one more special court and additional special court referred to supra had started functioning in Chennai from 10.7.2019.

42. It is after all the above proceedings, letters and Government

orders that fourth respondent wrote a letter dated 6.9.2019 to third

respondent for non designating the II Metropolitan Magistrate Court

citing work load and acting on the same, third respondent issued

G.O.Ms.No.535 dated 11.10.2019 non designating the II Metropolitan

Magistrate Court in Chennai. To be noted, these two events happened

after the actual transfer (on 10.07.2019) of said criminal complaints from EO court, i.e., Economic Offences Court-II, Egmore, Chennai to Sessions Court, i.e., Special Court for trial of Criminal cases related to elected MPs/MLAs of Tamil Nadu, Singaravelan Maligai, Chennai. In other words, the actual transfer on 10.07.2019 took place when the II

Metropolitan Magistrate which was designated for trying magisterial

offences involving former / present M.Ps/M.L.As, was very much

functioning. As already alluded to supra, there will be more discussion

about this infra.

43. Third and fourth respondents have understood the orders of

Hon'ble Supreme Court as orders / directives to constitute / designate

certain courts as Special Courts for the purpose of fast tracking cases

involving former and present M.Ps / M.L.As. There are three very

significant aspects of these directions of Hon'ble Supreme Court which

have also been understood correctly (upto a point, i.e., upto proceedings of fourth respondent prior to 6.9.2019 proceedings, i.e., serial number(xxv) in adumbration supra) by third and fourth respondents. First significant aspect is, Hon'ble Supreme Court directed creation of two categories of Special Courts, i.e., Sessions Court and Magisterial Courts.

The second more significant aspect of the orders of Hon'ble Supreme

Court is, the directives were to create as many as Sessions Courts and as many as Magisterial Courts that are necessary (obviously depending on

number of cases involving M.Ps / M.L.As and existing work load of

courts). The third aspect is, all this was to fast track criminal cases

involving present and former M.Ps/M.L.As. It is because of this clear

understanding upto aforementioned point that courts were designated in

all the 32 judicial districts in Tamil Nadu, both at Sessions and

Magisterial levels (to be noted, Judicial Magistrate in other Districts and Metropolitan Magistrate in the city of Chennai).

44. In the considered view of this Court, last two events post

impugned transfer and after aforementioned point present some

difficulties. Those two proceedings are Roc No.5745/2018/G4, dated

6.9.2019 being letter from fourth respondent to third respondent, the

third respondent acting on the same and making Government Order being

G.O.Ms.No.535 on 11.10.2019 regarding non designating II

Metropolitan Magistrate's Court, which was the lone Special Court at

Magisterial level for Chennai District. Owing to this 6.9.2019

proceedings of fourth respondent and consequential 11.10.2019

Government Order of third respondent being crucial and critical qua

bone of contention in instant cases (first and second Crl.O.Ps), this Court deems it appropriate to scan and reproduce the same. Scanned

reproduction is as follows :

45. When there are directions with specificity from Hon'ble

Supreme Court to constitute / designate courts at both Sessions and

Magisterial levels (that too as many courts as required), after having

understood the same correctly and after having constituted / designated

courts also in the same manner, non designating the lone Metropolitan

Magistrate Court in Chennai alone particularly when Hon'ble Supreme

Court had made it clear that as many courts as necessary, deemed fit and

expedient have to be constituted / designated at both levels deserves a

closer examination. This court is constrained to make this observation as the lone reason for non designating the II Metropolitan Magistrate is

work load and the perception that said court may not be able to allocate

time to hear cases involving M.Ps / M.L.As on day to day basis. To be

noted, as noticed supra, according to fourth respondent, there were no

magisterial offences / cases in this category as of 05.03.2019. Be that as it may, a simple way out would have been to constitute / designate more courts at magisterial level, as Hon’ble Supreme Court has already given directives with specificity in this regard. To be noted, even today, it is submitted without any disputation that Courts of Judicial Magistrates which were designated / constituted in 31 judicial districts for trying cases involving M.Ps / M.L.As are still functioning. Therefore, 6.9.2019 letter / communication of fourth respondent, third respondent acting on the same and making G.O.Ms.No.535 dated 11.10.2019 are presenting some difficulty. Notwithstanding clear / specific directives from Hon’ble Supreme Court, if and if at all non designating lone Metropolitan Magistrate Court in Chennai alone had become imperative / inevitable,ideally, third and fourth respondents could have approached Hon’ble Supreme Court and sought suitable directives. Admittedly, this was not done. In this context, this Court deems it pertinent to mention that there is no submission / explanation, much less material regarding why more Metropolitan Magistrates in Chennai were not designated (as per directives of Hon'ble Supreme Court, i.e., as many as deemed necessary at Sessions and magisterial levels) though this Court is informed that there are more than 20 Metropolitan Magistrates courts in Chennai.

However, considering the scope of cases on hand, this court refrains

itself from dilating further into this aspect of the matter.

46. There is one other important aspect of the matter. That is, on

the date of actual transfer, i.e., 10.07.2019, vide Dis.No.174/2019 and

Dis.No.173/2019 by the office of the Additional Chief Metropolitan

Magistrate, E.O.II, Egmore, Chennai, i.e., EO Court, II Metropolitan

Magistrate in Chennai was very much available as a designated court for

trying the offences involving past and present M.Ps / M.L.As. To put it

differently, designation of II Metropolitan Magistrate vide G.O.

Ms.No.213, dated 26.04.2019 was in vogue and was operating on the

actual date of transfer. There is no explanation from fourth respondent as to why the case of the petitioners was not transferred to the file of II Metropolitan Magistrate on 10.7.2019. To be noted, the first step towards non designation itself was taken only thereafter, i.e., 06.09.2019 and actual non designation happened only on 11.10.2019 when

G.O.Ms.No.535 came to be passed by third respondent. Therefore, it is

clear that on the date of actual transfer, i.e., 10.7.2019, a designated court for trying the offences involving M.Ps / M.L.As at magisterial level,namely II Metropolitan Magistrate, Chennai was very much available,but the transfer was made to a Sessions Court. There is no explanation,much less even plausible explanation that is being put forth for not transferring the petitioners' cases to Court of II Metropolitan Magistrate.

In this regard, it is pertinent to notice that counter affidavit of fourth respondent also does not throw light and / or explain these three aspects,encapsulation of which is as follows:

(i)More Metropolitan Magistrate Courts could have

been constituted / designated as Special Courts instead of

seeking non designation of II Metropolitan Magistrate if it

was overworked, as Hon'ble Supreme Court itself directs

with specificity to create as many Courts as necessary at

both Sessions and Magisterial levels.

(ii)On the date of transfer, II Metropolitan Magistrate

was available, but transfer was not made to this court.

(iii)If II Metropolitan Magistrate was overburdened

and if fourth respondent had taken a decision to non

designate II Metropolitan Magistrate and not to designate

any other court in Chennai, it should not have been done

unilaterally, but ideally, Hon'ble Supreme Court should

have been approached, as Hon'ble Supreme Court has

directed creation of as many Special Courts as considered

fit, proper and expedient at both Sessions and Magistrates

levels.

47. Communication dated 06.09.2019 from 4th respondent to 3rd

respondent (which has already been scanned and reproduced supra) and

one of the two official memoranda dated 7.6.2019 bearing reference Roc

No.5745/2018/G4 of 4th respondent inter-alia to Principal Judge of City

Civil Court, Chennai brings to the fore another threefold flaws. One

pertains to hierarchy, second pertains to transfer and third pertains to

transferee court. This comes to light from the 3rd

, 4th and 5th paragraphs of the communication dated 6.9.2019 from 4th respondent to 3rd respondent.

This communication in sum and substance says that II Metropolitan

Magistrate Court is presided by a judicial officer in the cadre of Senior Civil Judge (like the Additional Special Court which is also presided by a judicial officer in the cadre of Senior Civil Judge). Cadre in service and hierarchy as in Cr.P.C are conceptually two separate aspects. In any event, without even going into this aspect, even if the matter is tested on a demurer the second flaw comes to fore. The transfer was ultimately made to Special Court No.1 presided by a Sessions Judge and not to Additional Special Court presided by a Senior Civil Judge. Third flaw is, this runs contrary to one of the aforementioned memoranda dated 7.6.2019 from fourth respondent.

Therefore, the three flaws are(a)overlooking the subtle but certain difference between the cadre of a judicial officer (in service) presiding a Court and hierarchy / classes of courts as in Cr.P.C., (b) on a demurer, the transfer was ultimately not made to a court presided by a Judge in the same cadre as that of EO Court (though available) as transfer was made to Special Court No.1 presided by a Sessions Judge and not to Additional Special Court presided by a judicial officer in the cadre of Senior Civil Judge and (c) in one of the two memoranda dated 7.6.2019 bearing reference Roc No.5745/2018/G4 addressed inter-alia to Principal Judge, City Civil Court, Chennai, 4th respondent has directed (in page Nos.2 and 3 of the memorandum) as follows:

'(4)The Principal Judge, City Civil Court, Chennai is further

directed to instruct the Sessions Judge, Special Court No.I for

trial of criminal cases against MPs/MLAs, Chennai;

(a)to transfer the cases pertaining to Chennai

jurisdiction triable by the Assistant Sessions Judge,

pending before the existing Special Court at Chennai

to the Additional Special Court at Chennai in the

cadre of Senior Civil Judge (on its constitution).'

Notwithstanding this, ultimately, said criminal complaints were

transferred to Special Court-1 and not to Additional Special Court. This

baffling and bewildering aspect of the matter remained unexplained

throughout the hearing and there was no enlightenment in this regard in

the hearing.

48 With regard to allocation of cases pan Tamil Nadu, learned

counsel for fourth respondent has placed before this court a statement in tabular form which is as follows :

49. The statement of fourth respondent in tabular form (scanned

and reproduced supra) makes it clear that if the complaint regarding the

same alleged offences, i.e., alleged offences under sections 276C(1), 277 of IT Act / said provisions read with section 278 of IT Act, are to be tried in the adjoining Chengalpet judicial District or for that matter in any one of the 31 judicial Districts in Tamil Nadu (other than Chennai District),the accused will stand trial before a Judicial Magistrate, whereas in Chennai alone, accused will stand trial in a Sessions Court. This is clearly a disparity / lack of parity, is learned petitioners' counsel's say, but this leads to the question as to what is the prejudice caused to petitioners.

50. This straightaway takes us to the aspect of the Court of

Sessions not being a court having original jurisdiction and committal

being imperative for a court of Sessions to take up the matter. The

answer of fourth respondent qua this aspect of the matter is predicated on Ranbir Yadav and Classic Credit principles laid down by Hon’ble

Supreme Court in Ranbir Yadav Vs. State of Bihar reported in (1995) 4

SCC 392 and Securities and Exchange Board of India Vs. Classic

Credit Limited reported in (2018) 13 SCC 1. Predicating and positing

submissions on these case laws, it was argued that in cases of transfer,

committal is not necessary. This court also notices that Classic Credit

case is an authority for the broad principle that a revision under section 397 Cr.P.C. cannot be claimed as legal right.

51. To be noted, with regard to committal, for Court of Sessions

taking cognizance of a case without committal by a Magistrate, there are

only two exceptions. One exception is an express provision in Cr.P.C in

this regard and the other is any express provision in this regard in any

other law. An express provision if any can at best be considered to be one under Section 280B(a) of IT Act, which talks about Special Court. The question of cases on hand being heard by a special court will arise only if so designated as mentioned in section 280A of IT Act. A perusal of section 280B of IT Act makes it clear that offences become triable by

Special Court ‘if so designated’, but, no such designation has been made

as far as Tamil Nadu is concerned. Therefore, lack of original jurisdiction for Sessions Court argument is saved by Ranbir Yadav principle though ideally, transfer could have been made to II Metropolitan Magistrate Court.

52. As already alluded to supra, a perusal of section 26 of

Cr.P.C makes it clear that offences on hand are triable by Magistrate

courts. Absent Special court under Section 280A of IT Act, section 26 of

Cr.P.C operates and section 26 of Cr.P.C more particularly, subsection

(b) of section 26 makes it clear that offences on hand which are ‘offences under any other law’ are triable in accordance with the First Schedule to Cr.P.C.

53. In this regard, this court deems it appropriate to deal with

arguments advanced regarding all determinants qua First Schedule to

Cr.P.C and exclusivity of jurisdiction. With regard to First Schedule to

Cr.P.C., a submission was made by pressing into service a decision of

Hon’ble Supreme Court in Kamlesh Kumar Vs. State of Jharkhand

reported in (2013) 15 SCC 460. This submission/ argument was to the

effect that with regard to First Schedule to Cr.P.C, the court by which

offences is triable will apply only if all the other columns remain

unaltered. Extending this argument, it was submitted that instant cases

which fall under Part-II of First Schedule of Cr.P.C is relatable to

cognizable offences in the second column, whereas Section 279A of IT

Act has made the offences on hand non cognizable offences.

54. This Court examined this argument. Kamlesh Kumar case

pertains to what is referred to as Fodder Scam case in Bihar. Children of former Director of Department of Animal Husbandry assailed trial of

FERA case against them by Sessions Court. Hon’ble Supreme Court held

that offences for which petitioners in Kamlesh Kumar case were tried

had been held to be non cognizable under section 56 of erstwhile FERA

and therefore, there is no exclusivity.

55. This takes us to yet another aspect of the submissions of

learned counsel for fourth respondent. That aspect of submission is that

transfer though made on administrative side is traceable to Article 227 of the Constitution and section 407 of Cr.P.C. This argument is also

predicated on Kamlesh Kumar principle, the case law being Kamlesh

Kumar Vs. State of Jharkhand reported in (2013) 15 SCC 460.

56. As the entire exercise we are concerned with in these

matters is solely owing to the directions of Hon'ble Supreme court (even

according to respondents), this Court deems it appropriate to set out an

interesting consequence of events, in England. This is pertinent to

matters on hand as it pertains to unwavering loyalty when it comes to

hierarchy of Courts. This trajectory pertains to Courts of Appeal and

House of Lords in England. In 1971, in a case which came to be known

as Cassell case (Broome Vs. Cassell Co. Ltd. {[1971] 2 QB 354}) , the

question as to whether exemplary damages could be awarded arose. It

was believed that answer to this question lay in an earlier judgment

rendered by House of Lords in Rookes Vs. Barnard {[1964] AC 1129}.

However, Lord Denning writing for the Courts of Appeal in Cassell case

held that Rookes case is per incuriam and therefore, is not binding.

Cassell case was carried to House of Lords which held in no uncertain

terms that Courts of Appeal cannot avoid an otherwise binding precedent

of House of Lords by merely declaring it as per incuriam. House of Lords

held that it is necessary for each tier in the hierarchy of Courts including the Court of Appeal to accept loyally the decisions of the higher tiers. In other words, unwavering hierarchical loyalty was considered to be more important than judicial individuality. To be noted, Cassell case penned by Lord Denning for the Courts of Appeal was in 1971 and after it was carried to House of Lord, the decision was rendered by House of Lords in 1972. Interestingly, three years later, i.e., 1975, in Schorsch Meier case (Schorsch Meier G.m.b.H Vs. Henning reported in [1975] 1 AB 416),the question as to whether an English Court can make an award qua a judgment in foreign currency arose. The answer to this question was readily available as it was blessed with a precedent in the form of a verdict of House of Lords in Re United Railways of the Havana and Regla Warehouses [1961] AC 1001, wherein House of Lords had held that English Court cannot make an award in a judgment in foreign currency. However, in Schorsch Meier case, Lord Denning applied cessante ratione principle and held that the rule laid down by House of Lords in United Railways case had become obsolete as the situation and circumstances which existed in 1961 when United Railways case was decided ceased to exist owing to changed dynamics and dimensions of economic condition. However, this Schorsch Meier case was not carried to House of Lords. Though Schorsch Meier case was not carried to House of Lords, a similar issue arose before House of Lords a year later,i.e., 1976 in Miliangos Vs. George Frank (Textiles) Ltd. reported in [1976] AC 443. This Miliangos case was before House of Lords presided over by five Lords, namely Lords Wilberforce, Simon, Cross, Edmund-Davies and Fraser. Interestingly, all the five in House of Lords unanimously held that the earlier rule in Re United Railways that English Court cannot award a judgment in foreign currency should be changed.

This means that the view taken by Lord Denning in Schorsch Meier case

that United Railways principle had become obsolete stood vindicated.

What is of utmost significance is, though House of Lords also held that

United Railways principle had become obsolete (in Miliangos case), it

held that Courts of Appeal which are bound by the rule of precedents are

not free to disregard the verdict of a higher Court. To put it differently, it was held that the changed position qua United Railways has to be made by House of Lords themselves and not by Courts of Appeal. Therefore,4th respondent / 3rd respondent non designating lone II Metropolitan Magistrate without approaching Hon'ble Supreme Court and now making an effort to take umbrage under Article 227 and section 407 of Cr.P.C does not impress this Court. This is more so, as option for designating more number of Metropolitan Magistrate Courts (if one designated court is overburdened) was always there. To put it otherwise, when Hon'ble Supreme Court has not directed magisterial offences to be transferred to Sessions Court, the same cannot be done by 3rd and 4th respondents by citing workload of one court, particularly when more courts are available for designation. To be noted, Hon'ble Supreme Court has directed as many Sessions and as many Magisterial courts to be constituted /designated.

57. Therefore, ideally, either more number of Magistrate Courts

should have been designated or Hon'ble Supreme Court should have been

approached for suitable directions. This turns on fundamental principle

of discipline in hierarchy of Courts. Therefore, the argument that transfer has the trappings / is traceable to Article 227 and Section 407 Cr.P.C is an argument which not only does not impress this Court, but it is an argument which cannot even be countenanced. However, all this takes us back to the question of what is the prejudice that has been caused to petitioners owing to all this.

58. With regard to the argument that petitioners were neither

M.Ps / M.L.As nor former M.Ps / M.L.As on the date of alleged offence

or on the date of launching complaints, as Hon'ble Supreme Court has

directed all pending cases to be transferred, this argument fails.

59. Likewise, the argument that only one of the petitioners has

become an M.P is of no avail to petitioners, as Hon'ble Supreme Court

has directed transfer of all cases involving sitting / former M.Ps /M.L.As.

60. In the light of the discussion thus far, in the considered view

of this Court, the clincher in this matter is absence of prejudice to

petitioners. I attempt to capture all salient aspects of

narrative/discussion/dispositive reasoning thus far, make a summation

and present it in a nutshell which is as follows :

(a) Ideally, 4th and 3rd respondents should have

designated more Metropolitan Magistrate Courts in

Chennai, if the already designated II Metropolitan

Magistrate Court is overburdened as Hon'ble Supreme

Court has made it clear that as many Courts as necessary,

fit and expedient can be designated at both Sessions and

Magisterial levels.

(b) The argument of petitioners that one tier,

namely, revision under section 397 of Cr.P.C is taken

away does not hold water as courts have repeatedly held

that revision under Section 397 Cr.P.C is not a legal right

as it is a discretionary relief.

(c) Notwithstanding the above, no prejudice has

been demonstrated by petitioners owing to being asked to

stand trial in a Sessions Court;

(d) With regard to standing trial in a Magistrate

Court and standing trial in a Sessions Court, the lone

difference projected before this Court pertains to further

revision under section 397 Cr.P.C post appeal against

conviction, if that be so. As the law is clear that revision

is not a right unlike an appeal, this lone difference being

canvassed as a ground by petitioners gets obliterated. The

result is, in the cases on hand, as far as petitioners are

concerned, there is no difference in standing trial in a

Magistrate Court and standing trial in Sessions Court.

(e) Whether Economic Offences Court in

Egmore is a Special Court within the meaning of section

280A of IT Act (absent notification from Central

Government as far as Tamil Nadu is concerned) becomes

an academic debate (as far as instant cases are concerned),

as Hon'ble Supreme Court has directed transfer from

Special court also.

(f) Lack of parity between accused in Chennai

and similarly placed accused in other 31 judicial Districts,

as there are designated Judicial Magistrates in all other

judicial districts is a larger issue and this court refrains

itself from entering into that arena as petitioners are

unable to demonstrate any prejudice to them owing to this

lack of parity.

(g) Though there was II Metropolitan Magistrate

as designated court on the date of actual transfer on

10.7.2019, the transfer to Sessions Court does not infarct

the rights of petitioners owing to section 292 of IT Act.

(h) Sessions Court lacks original jurisdiction

argument is neutralized by Ranbir Yadav principle which

says that committal is not necessary in a case of transfer.

(i) Therefore, petitioners' challenge to transfer

fails and Crl.O.P.Nos.22136 and 22137 of 2019 fails.

61. Before parting with the cases on hand, as instant cases are

Crl.O.Ps under section 482 Cr.P.C., this Court reminds itself of Govind

principle laid down by Hon'ble Delhi Court in Govind Vs. State (Govt. of

NCT of Delhi) reported in (2003) 68 DRJ 446 (DB) and Pepsi Foods

principle being law laid down by Hon'ble Supreme Court in Pepsi Foods

Ltd. Vs. Special Judicial Magistrate reported in (1998) 5 SCC 749.

These two principles, i.e., Govind principle and Pepsi Foods principle

pertain to scope of powers of a Court under Section 482 Cr.P.C qua

powers under Article 226 of the Constitution of India. Relevant

paragraphs in Govind case law rendered by Hon'ble Delhi High court are

paragraphs 61, 62 and 76. Relevant paragraphs in Pepsi Foods case law

rendered by Hon'ble Supreme Court are paragraphs 14, 21 to 26. These

relevant paragraphs read as follows:

Paragraphs 61, 62 and 76 in Govind case :

'61.The powers of the Courts under Article 226 are

extremely wide as laid down in Keshvanand Bharti's(supra)

case that these powers cannot be taken away even by

amendment of the Constitution. In Minerva Mills (supra) the

Court has characterised that the power of judicial review

conferred by Articles 32 and 226 as part of basic structure of

the Constitution. The Court observed that judicial review is

a vital principle of our Constitution and it cannot be

abrogated without effecting the basic structure of the

Constitution. Therefore, as far as the existence of the power

is concerned, it cannot be doubted and the power of the

court under Article 226 of the Constitution cannot be

abridged, abrogated or diluted even by the amendment of

the Constitution. Neither the power can be taken away by

judicial pronouncement, nor by legislative enactment or

even by the amendment of the Constitution.

62.All concerned may clearly appreciate this fact that the

learned Single Judge exercises the powers of the High

Court. In conclusion, it can be safely concluded that the

existence of the powers of the learned Single Judge under

Section 482 and Article 226 to quash the proceedings cannot

be disputed or questioned. However, those powers have to

be exercised in consonance with the well recognised

principles laid down in a catena of cases by the Supreme

Court.

76.When an aggrieved person approaches the court in a

petition under Article 226 read with Section 482 of the Code

of Criminal Procedure then the court is possessed with

enormous powers to do justice or remove injustice. The

Court's vast powers are meant to prevent any abuse of the

process or to secure the ends of justice, both under Section

482 Cr.P.C and Article 226 of the Constitution. These

powers must be exercised for the advancement of justice.

Ends of justice are always higher than the ends of mere law

and for accomplishing that noble goal the courts have

rightly been invested with adequate powers. '

Paragraphs 14, 21 to 26 in Pepsi Foods case :

'14.Under Article 227 of the Constitution of India the High

Court has power of superintendence over courts. Clause (1)

provides that every High Court shall have superintendence

over all courts and tribunals throughout the territories in

relation to which it exercises jurisdiction. The High Court

has power to issue certain writs, orders and directions under

Article 226 of the Constitution. Clause (1) of Article 226,

which is relevant, is as under:

“226. (1) Notwithstanding anything in Article 32,

every High Court shall have power, throughout the

territories in relation to which it exercises

jurisdiction, to issue to any person or authority,

including in appropriate cases, any Government,

within those territories directions, orders or writs,

including (writs in the nature of habeas corpus,

mandamus, prohibition, quo warranto and certiorari,

or any of them, for the enforcement of any of the

rights conferred by Part III and for any other

purpose).”

21.The questions which arise for consideration are if in the

circumstances of the case, the appellants rightly approached

the High Court under Articles 226 and 227 of the

Constitution and if so, was the High Court justified in

refusing to grant any relief to the appellants because of the

view which it took of the law and the facts of the case. We

have, thus, to examine the power of the High Court under

Articles 226 and 227 of the Constitution and Section 482 of

the Code.

22.It is settled that the High Court can exercise its power of

judicial review in criminal matters. In State of Haryana v.

Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 :

JT (1990) 4 SC 650] this Court examined the extraordinary

power under Article 226 of the Constitution and also the

inherent powers under Section 482 of the Code which it said

could be exercised by the High Court either to prevent abuse

of the process of any court or otherwise to secure the ends

of justice. While laying down certain guidelines where the

court will exercise jurisdiction under these provisions, it was

also stated that these guidelines could not be inflexible or

laying rigid formulae to be followed by the courts. Exercise

of such power would depend upon the facts and

circumstances of each case but with the sole purpose to

prevent abuse of the process of any court or otherwise to

secure the ends of justice. One of such guidelines is where

the allegations made in the first information report or the

complaint, even if they are taken at their face value and

accepted in their entirety do not prima facie constitute any

offence or make out a case against the accused. Under

Article 227 the power of superintendence by the High Court

is not only of administrative nature but is also of judicial

nature. This article confers vast powers on the High Court to

prevent the abuse of the process of law by the inferior courts

and to see that the stream of administration of justice

remains clean and pure. The power conferred on the High

Court under Articles 226 and 227 of the Constitution and

under Section 482 of the Code have no limits but more the

power more due care and caution is to be exercised while

invoking these powers. When the exercise of powers could

be under Article 227 or Section 482 of the Code it may not

always be necessary to invoke the provisions of Article 226.

Some of the decisions of this Court laying down principles

for the exercise of powers by the High Court under Articles

226 and 227 may be referred to.

23.In Waryam Singh v. Amarnath [AIR 1954 SC 215 : 1954

SCR 565] this Court considered the scope of Article 227. It

was held that the High Court has not only administrative

superintendence over the subordinate courts and tribunals

but it has also the power of judicial superintendence. The

Court approved the decision of the Calcutta High Court in

Dalmia Jain Airways Ltd. v. Sukumar Mukherjee [AIR 1951

Cal 193] where the High Court said that the power of

superintendence conferred by Article 227 was to be

exercised most sparingly and only in appropriate cases in

order to keep the subordinate courts within the bounds of

their authority and not for correcting their mere errors. The

Court said that it was, therefore, a case which called for an

interference by the Court of the Judicial Commissioner and

it acted quite properly in doing so.

24. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta

[(1975) 1 SCC 858 : AIR 1975 SC 1297] this Court again

reaffirmed that the power of superintendence of the High

Court under Article 227 being extraordinary was to be

exercised most sparingly and only in appropriate cases. It

said that the High Court could not, while exercising

jurisdiction under Article 227, interfere with the findings of

fact recorded by the subordinate court or tribunal and that its

function was limited to seeing that the subordinate court or

tribunal functioned within the limits of its authority and that

it could not correct mere errors of fact by examining the

evidence or reappreciating it. The Court further said that the

jurisdiction under Article 227 could not be exercised, “as

the cloak of an appeal in disguise. It does not lie in order to

bring up an order or decision for rehearing of the issues

raised in the proceedings”. The Court referred with approval

the dictum of Morris, L.J. In R. v. Northumberland

Compensation Appeal Tribunal [(1952) 1 All ER 122] .

25. In Nagendra Nath Bora v. Commr. of Hills Division

[AIR 1958 SC 398 : 1958 SCR 1240] this Court observed as

under:

“It is thus, clear that the powers of judicial

interference under Article 227 of the Constitution

with orders of judicial or quasi-judicial nature, are

not greater than the powers under Article 226 of

the Constitution. Under Article 226, the power of

interference may extend to quashing an impugned

order on the ground of a mistake apparent on the

face of the record. But under Article 227 of the

Constitution, the power of interference is limited

to seeing that the tribunal functions within the

limits of its authority.”

26.Nomenclature under which petition is filed is not quite

relevant and that does not debar the court from exercising its

jurisdiction which otherwise it possesses unless there is

special procedure prescribed which procedure is mandatory.

If in a case like the present one the court finds that the

appellants could not invoke its jurisdiction under Article

226, the court can certainly treat the petition as one under

Article 227 or Section 482 of the Code. It may not however,

be lost sight of that provisions exist in the Code of revision

and appeal but some time for immediate relief Section 482

of the Code or Article 227 may have to be resorted to for

correcting some grave errors that might be committed by the

subordinate courts. The present petition though filed in the

High Court as one under Articles 226 and 227 could well be

treated under Article 227 of the Constitution. '

62. In the light of the aforementioned Govind principle and

Pepsi Foods principle, this Court deems it appropriate to make a parting

observation that 4th and 3rd respondents in first and second Crl.O.Ps will do well to designate one or more Metropolitan Magistrate/s in Chennai for trying criminal cases related to elected M.Ps/M.L.As, in accordance with the directives of Hon'ble Supreme Court in Ashwini Kumar

Upadhyay case which is the basis for this entire matter. Though obvious,

it is made clear that this order will be an impetus to 4th and 3rd respondents for an exercise in this direction.

63. In the light of narrative, discussion and dispositive

reasoning thus far, all four Criminal Original Petitions, namely

Crl.O.P.Nos.22136 and 22137 of 2019, 1526 and 1527 of 2020 are

dismissed. There shall be no order as to costs. Consequently, connected

miscellaneous petitions are dismissed.

12.05.2020

Index : Yes/No