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Delhi High CourtIndian Cases

A.S. Impex Limited And Ors. vs Delhi High Court And Ors. on 13 November 2003

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Delhi High Court
A.S. Impex Limited And Ors. vs Delhi High Court And Ors. on 13 November, 2003
Equivalent citations: 107(2003)DLT734, 2004(72)DRJ1, 2003(3)JCC292, (2004)136PLR3
Author: O.P. Dwivedi
Bench: O.P. Dwivedi
JUDGMENT

Usha Mehra, J.

1. Chapter XVI was incorporated in the Negotiable Instruments Act, 1881 (hereinafter called the “Act”). The said chapter was inserted by the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988) with effect from April, 1989. The purpose of inserting this chapter under which Section 138 falls was to give power to the Court to impose punishment in case the cheque issued, in whole or in part, of any debt or liability is returned by the Bank unpaid either because of the amount of money standing to the credit of that account is insufficient or it exceeds the amount arranged to be paid. Such action amounts to an offence punishable with an imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque, or with both. Section 139 of the Act deals with the presumption in favor of holder. Section 140 of the Act indicates the defenses which may not be allowed in any prosecution under Section 138. Section 142 of the Act deals as to which Court can take cognizance of offences. Section 143 deals with the power of Court to try cases under Section 138 of the Act summarily. Sub-section [2] of Section 143 of the Act prescribes that the trial of a case as far as practicable be continued from day-today until its conclusion except for reason beyond control the Court adjourns the case. Sub-section (3) of Section 143 envisages that the trial under this section shall be conducted as expeditiously as possible and all endeavors should be made to conclude the trial within six months from the date of filing of the petition.

2. Keeping in view the intention and the mandate of the Legislature in mind that cases under the Act be concluded expeditiously, the High Court found that number of cases filed under Section 138 of the Act could not be disposed of expeditiously because of acute shortages of judicial officers at magisterial level. The High Court exercising its power on the administrative side transferred the cases under Section 138 of the Act which were pending as on 31st December, 2001 from the Court of Metropolitan Magistrates to the Court of Additional Sessions Judges. The impugned order was gazetted on 13th March, 2002. Pursuance to this Gazette Notification, the District Judge vide order dated 21st March, 2002 transferred the cases to be tried by Additional Sessions Judges.

3. It is this order of 21st March, 2002 which has been assailed by the petitioners, inter alia, on the grounds that, (i) the order passed by the High Court on the administrative side is wholly unconstitutional and illegal inasmuch as the same is violative of Article 14 and Article 21 of the Constitution of India; (ii) that no order under Section 407 of the Code could be passed. Moreover complaint under Section 138 of the Act can only be tried by the Court of Metropolitan Magistrate or Judicial Magistrate, First Class and by an other Court; (iii) that the complaint under Section 138 of the Act is a summon trial case as defined under Section 2(w) of the Code. Section 138 of the unamended Act provided for a maximum punishment of imprisonment of one year and after the amendment maximum punishment of imprisonment provided is two years, hence offence under Section 138 of the Act is not a warrant trial case but a summon trial case; (iv) that on combined reading of Sections 4 and 26 of the Code, read with Section 142(c) of the Act it is apparent that only the Metropolitan Magistrate or the Judicial Magistrate, First Class have exclusive jurisdiction to try the complaints under Section 138 of the Act. No jurisdiction vests in the Court of Additional Sessions Judge to try the complaint under Section 138 of the Act. In fact, the Legislature in its wisdom specifically provided that only the Court of Metropolitan Magistrate or the Judicial Magistrate, First Class would be competent to try cases under Section 138 of the Act. Complaints under Section 138 having been transferred to the Court of Additional Sessions Judge for being tried by them, the respondent No. 1 has committed violation of the provision of the Code. There is no provision under the Code which empowers the Court of Sessions Judges to try a summon case; (v) that speedy trial cannot form the basis of classification; (vi) that the impugned order has taken away the right of appeal of the petitioners to the Court of Session as envisaged under Section 374(3) of the Code and further the right of revision to the High Court under Section 397(1) of the Code from the judgment and order of the Court of Session; (vii) that there is violation of principle of natural justice and the order is liable to be struck down.

4. The above pleas raised by the petitioners have been controverter by the respondent primarily on the ground that the Legislature has not put any fetters on the powers of the High Court under Article 227of the Constitution. Moreover, only safeguard prescribed under the Act is that no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of First Class shall try an offence punishable under Section 138 of the Act. There is so bar under any provision of the Act that the trial of a complaint case under Section 138 cannot be conducted by the Court of Session. That the constitution sought to be given by the petitioners is without any basis. That non-obstante clause in Section 142 of the Act, the provisions of the Code in so far as inconsistent with those of Section 142 would not apply to the trial of cases under Section 138 of the Act.

5. That the amending Act came into effect w.e.f. 6th February, 2003, therefore complaint instituted under Section 138 of the Act prior to 6th February, 2003 can be tried by the Court of Session because it is only, after the amendment that a separate Forum of trial has been prescribed. Submission of the petitioners that summons case can only be tried by a Magistrate and not by Court of Session is misconceived. Because any Code governing the procedure is an enabling enactment and only bars or limits certain acts when specifically provided for. There is no bar specifically provided under the Code for the trial of summon cases by the Court of Session. The impugned order was passed under Article 227 of the Constitution upon the principle enunciated under Section 407 of the Code Section 142(c) of the Act does not provide that cases under Section 138 of the Act would be friable only by the Court of Metropolitan Magistrate or Judicial Magistrate First Class. No exclusive jurisdiction has been conferred under the Act on the Magistrate, 1st class. Only provision made is that the complaint under Section 138 would not be tried by any Court inferior to the Court of Metropolitan Magistrate or Judicial Magistrate, First Class. Tht the amendment and insertion of Section 143 makes it clear that it is not retrospective. It will apply prospectively. That no right of the petitioner has been affected by the transfer of cases nor the petitioner has been discriminated.

6. Before we appreciate the contentions raised by the respective parties, we would like to go through the relevant provision of the Act and of the Code, namely, Sections 138, 142 and 143 of the Act and Sections 2(w), 2(x), 4(2), 26(b) of the Code which are reproduced as under :

Section 138–
Dishonour of cheque for insufficiency, etc. of funds in the account–Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid form that account by an agreement made with that Bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or with both :
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, (within thirty days) of the receipt of information by him from the Bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
Section 142. Cognizance of offences–

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),–

(a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138:
[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;]
(c) No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138.
Section 143. Power of Court to try cases summarily–

(1) Notwithstanding any thing contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this chapter shall be tried by a Judicial Magistrate of the First Class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials :
Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees :
Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
(2) The trial of a case under this section shall, so far as practicable consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in Writing.
(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavor shall be made to conclude the trial within six months from the date of filing of the complaint.
Provision of the Code–

Section 2(w)–“summon-case” means a case relating to an offence, and not being a warrant-case;

Section 2(x)–“warrant case” means a case relating to offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.”

Section 4 :

(1) All offences under the Indian Penal Code shall be investigated, enquired into, tried, and otherwise dealt with according to the provision hereinafter contained.
(2) All offences under any other law shall be investigated, enquired 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/enquiring into, trying or otherwise dealing with such offences.
Section 26–subject to the other provisions of the 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 Court by which such of fence is shown in the First Schedule to be triable;
(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.
7. Classification of offences is dealt with in the First Schedule Part 11 of the Code. In classification of offences against other laws it is mentioned that if the offence is punishable with imprisonment for less than 3 years or with fine only such offence can be tried by “Any Magistrate.”

8. Admittedly complaint under Section 138 of the Act are “summon case” where maximum punishment provided is up to two years. Procedure for trial of summon case and warrants case has been provided separately under the Code. Section 4(2) of the Code deals with trial of offences under other laws whereas Section 26(b)(ii) read with First Schedule Part 11 of the Code prescribes that offences punishable with less than three years are friable by any Magistrate.

9. Contention of Mr. Neeraj Kaul, Senior Advocate is that under Section 142(c) of the Act, the legislative intent is that no Court inferior to the Court mentioned therein i.e. Metropolitan Magistrate or the Judicial Magistrate, First Class will try the cases under Section 138 of the Act but it does not mean that a Court superior to the same i.e. the Court of Session cannot try these cases. The embargo placed under Section 142(c) of the Act does not in any way bar the jurisdiction of the Court of Session from trying the case under Section 138 of the Act. The reliance by the petitioners on Section 4(2) and Section 26(b)(ii) of the Code is misplaced. In fact the non-obstante clause would prevail notwithstanding anything to the contrary contained in the Code of Criminal Procedure. Moreover Section 4(2) of the Code envisages that all other offences under law would be tried under the Code subject to any enactment regulating the manner of trial or otherwise dealing with such offences. That being so in view of the non-obstante clause in Section 142 of the Act provisions of the Code which are inconsistent with those of Section 142 of the Act would not apply to the case being tried under Section 138. Nor the petitioner can drive any aid from the provision of Section 143 of the Act which came into effect on 6.2.2003 i.e. after the impugned order was passed. The provision of Section 143, therefore, will have no retrospective effect. Reading of Section 143 of the Act makes it clear that earlier there was no bar for the cases being tried under Section 138 by any superior Court than the Court prescribed under Section 973 of the Act but with the amendment of the Act and bringing on Statute Book Section 143 a specific procedure has been prescribed for trial of cases under Section 138 of the Act. Therefore, no advantage can be taken of the amendment to the Act and in particular Section 143 by the petitioners.

10. We find this submission of Mr. Neeraj Kaul without substance for the obvious reason that provisions of Section 142 of the Act are explicit. The expression “any Magistrate” under the other laws, to our mind, would include the N.I. Act. The said Act under Section 142(c) prescribes the Court which will have jurisdiction. Section 142(c) of the Act prescribes that Metropolitan Magistrate or a Judicial Magistrate, First Class will try cases under Section 138 of the Act. By no stretch of imagination, it would mean any superior Court to the Court of Metropolitan Magistrate would also have jurisdiction to try those cases. In fact non-obstante clause in Section 142 excludes the jurisdiction of Magistrate inferior to the Metropolitan Magistrate or the Judicial Magistrate, First Class, but at the same time it does not widen the scope or the provision so as to include in its ambit the jurisdiction of Additional Sessions Judges. Jurisdiction to try offences under Section 138 of the Act have been specifically conferred on Metropolitan Magistrate or Judicial Magistrate, First Class. That jurisdiction the amendment of the Act and bringing on Statute Book Section 143 a specific procedure has been prescribed for trial of cases under Section 138 of the Act. Therefore, no advantage can be taken of the amendment to the Act and in particular Section 143 by the petitioners.

10. We find this submission of Mr. Neeraj Kaul without substance for the obvious reason that provisions of Section 142 of the Act are explicit. The expression “any Magistrate” under the other laws, to our mind, would include the N.I. Act. The said Act under Section 142(c) prescribe the Court which will have jurisdiction. Section 142(c) of the Act prescribe that Metropolitan Magistrate or a Judicial Magistrate, First Class will try cases under Section 138 of the Act. By no stretch of imagination, it would mean any superior Court to the Court of Metropolitan Magistrate would also have jurisdiction to try those cases. In fact non obstante clause in Section 142 excludes the jurisdiction of Magistrate inferior to the Metropolitan Magistrate or the Judicial Magistrate, First Class. But at the same time it does not widen the scope or the provision so as to include in its ambit the jurisdiction of Additional Sessions Judges. Jurisdiction to try offences under Section 138 of the Act have been specifically conferred on Metropolitan Magistrate or Judicial Magistrate, First Class. That jurisdiction cannot be taken away, to our mind, by invoking the provision of Article 127 of the Constitution. The High Court in its plenary jurisdiction cannot by-pass the special legislation which empowers the Metropolitan Magistrate or Judicial Magistrate, First Class to try the cases. To support our conclusion we are placing reliance on the decision of Supreme Court in the case of Pankajbhai Nagjibhai Patel v. State of Gujarat and Anr., 1 (2001) CCR 106 (SC)=2001 (1) JCC (SC) 82, where while interpreting Section 142 of the Act, Justice K.T. Thomas speaking for the Bench observed:

“That under the Code, Magistrate can take cognizance of an offence either upon receiving a complaint, or upon a police report, or upon receiving information from any person, or upon his own knowledge except in the cases differently indicated in Chapter XIV of the Code. But Section 142 of the N.I. Act says that insofar as the offence under Section 138 is concerned no Court shall take cognizance kept upon a complaint made by the payee of the holder in the due course of the cheque.
The second is this : Under the Code a complaint Court be made at any time subject to the provisions of the Chapter xxxvI. But so far as the offence under Section 138 of the N.I. Act is concerned such complaint shall be made within one month of the cause of action. The third is this : Under Article 511 of the First Schedule of the Code, if the offence is punishable with imprisonment for less than 3 years or with fine only under any enactment other than Indian Penal Code such offence can be tried by any Magistrate. Normally under Section 138 of the N.I. Act which is punishable with a maximum sentence of imprisonment for one year would have fallen within the scope of the said Article. But Section 142 of the N.I. Act says that for the of fence under Section 138, no Court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of First Class shall try the said offence.”
Thus, the non obstante limb provided in Section 142 of the N.I. Act is not intended to expand the powers of a Magistrate of First Class beyond which is fixed in Chapter III of the Code.”

11. We find force in the submission of Mr. Anil Kumar Sharma, Advocate for the petitioners that the High Court on the administrative side by invoking the provision of Article 227 of the Constitution or for that matter Section 497 of the Code could not have widen or expanded the powers beyond what is fixed under the Act. Section 142 of the Act in fact over-rides the powers vested under Section 407 of the Code. In view of the specific provision no case under Section 138 friable by Judicial Magistrate of First Class can be transferred nor this specific provision provided under the special Act can be circumvented by invoking the plenary jurisdiction of the High Court under Article 227 of the Constitution. In support reference can be made to the decision of our own High Court in the case of Jindal Photo Films Limited v. State, 91 (2001) DLT 34 (DB)=II (2001) CCR 207 (DB)=2001 II AD (Cr.) DHC 178. This Court while relying on the decision of Supreme Court in the case of Pankajbhai Nagjibhai Paid (supra), held that under Section 138 no Court inferior to that of Metropolitan Magistrate or Judicial Magistrate, First Class shall try the offences under Section 138 of the Act. But by inference it cannot be contended that if jurisdiction of Court inferior to Magistrate, First Class is barred the Court superior to Magistrate, First Class would get the jurisdiction. This sort of interpretation would not only be against the provisions of special statute i.e. N.I. Act but also the mandate given under Section 4(2) and Section 26(b)(ii) of the Code. Apex Court in the case of A.R. Autulay v. R.S. Nayak and Anr. , was called upon to reconsider and recall its directions given earlier on 16.2.1984 in the case reported as K.S. Nayak v. A.R. Autulay, Apex Court in A.R. Autulay’s case was considering the powers of the Court to transfer cases vis-a-vis the provisions of special legislation and came to the conclusion that it could not have transferred the case from the Court of Special Judge to the High Court of Bombay. The facts in R. S. Nayak’s case (supra), are that the Apex Court while holding that a Member of Legislative Assembly is not a public servant set aside the order of the Special Judge. Instead of remanding the case to the Special Judge for disposal the Apex Court of its own withdrew the case from Special Judge and transferred the same to the Bombay High Court with a request that those cases be assigned to a sitting Judge of the High Court for holding the trial on day-to-day basis. These directions were challenged by A.R. Autulay which came up before the Larger Bench. While interpreting the provision of the Criminal Law Amendment Act (46 of 1952) (hereinafter called 1952 Act) and in particular Section 7 of the 1952 Act which provides that notwithstanding anything contained in the Code of Criminal Procedure, or any other law the offences specified in Sub-section (1) of Section 6 shall be friable by Special Judge only, the Apex Court observed that the law provides for a trial by Special Judge and this is notwithstanding anything contained in Sections 406 and 407 of the Code of Criminal Procedure. While answering the reference Their Lordships observed that in view of provision of Section 7(2) of the 1952 Act and Articles 14 and 21 of the Constitution the directions given by them earlier were legally wrong. It was also observed that directions given on the ground of expeditious trial by transferring the cases to the High Court of Bombay was contrary to the statutory provisions of the 1952 Act and as such violative of Article 21 of the Constitution.

12. Mr. Anil Kumar Sharma, rightly contended that exclusive jurisdiction conferred on the Metropolitan Magistrate or Judicial Magistrate, First Class would preclude the exercise of power under Section 407 of the Code. Section 407 is subject to the overriding mandate given in Section 142 of the Act. If that be so then the contention of Mr. Neeraj Kaul has no force when he submitted that the High Court by invoking the plenary jurisdiction under Article 227 of the Constitution could transfer the cases under Section 138 of the Act to Courts of Sessions which Courts are not inferior to the Metropolitan Magistrate or Judicial Magistrate, First Class. Mr. Neeraj Kaul admitted that High Court has not transferred the cases by invoking the provision of Section 407 of the Code. If that be so it can safely be said that if the High Court cannot transfer the cases by invoking the provision of Section 407 of the Code it can also not transfer the same by invoking its power of superintendence. We are also not convinced with the arguments of Mr. Neeraj Kaul that the bar under Section 142 is only to the extent that Court inferior to the Magistrate, First Class will have no jurisdiction. In fact what the Legislature intended was not only Magistrate, First Class will try those cases and not any Magistrate as stipulated in First Schedule Part-II of the Code. By relying on Article 227 of the Constitution the respondent cannot be permitted to expand the jurisdiction or the scope of the special Act nor the jurisdiction as envisaged under Section 142 of the Act. We also find no merit in the contention of Neeraj Kaul that in A.R. Antulay’s case case unlike Section 7(2) of the 1952 Act, no specific bar is provided under Section 142(c) of the Act. No doubt under 1952 Act it was provided that the cases shall be friable by Special Judge only. But reading of the N.I. Act does not indicate that under Section 142(c) unlimited jurisdiction vests with various Courts to try cases under Section 138 of the Act. Even though the words “only has not been written in Section 142(c) but the intention of the Legislature can be inferred. When we say that cases under Section 138 would not be tried by any Court inferior to the Metropolitan Magistrate or Judicial Magistrate, First Class it does not automatically expand the jurisdiction to superior Courts. In fact the reading of Section 142(c) makes it clear that cases under Section 138 of the Act being summons cases are to be tried by Metropolitan Magistrate or Judicial Magistrate, First Class. First Schedule Part-11 of the Code provides that if the offence is punishable with imprisonment for less than 3 years or with fine only, then such an offence is friable by “Any Magistrate”. It is with a view to circumvent “Any Magistrate” that the Legislature in its wisdom incorporated in Section 142(c) of the N.I. Act which is special provision that only Magistrate of First Class will try offences under Section 138 of the Act and not any Magistrate. This does not mean that jurisdiction under Section 142(c) has been expanded and can vest with Courts superior to the Court of Magistrate, First Class. Reliance by Mr. Neeraj Kaul on the case of Ranbir Yadav v. State of Bihar, , is misplaced. In that case the Court transferred the case from the Court of one Magistrate to the Court of another Magistrate for the reason that there was shortage of accommodation in the first Court. That is not the case in hand. It was not a case where the jurisdiction was transferred from the Court of Magistrate to the Court of Sessions.

13. No doubt the provision of Section 143 came into existence after the impugned order was passed but the contention of Mr. Kaul that such an amendment would not have any retrospective effect because the concept of clarificatory legislation is alien to the constitutional scheme and that the petitioner’s reliance upon the amendment to try and establish that amended provisions existed even in the pre-amended Act is ex facie misconceived is contrary to the well established law for the reason that though clarification came by way of amendment but that by itself does not lead to the conclusion that prior to amendment power to try cases under Section 138 of the Act could vest with either the Magistrate, First Class or any superior Court i.e. the Court of Sessions. Offences under Section 138 being summons cases cannot be tried by the Court of Sessions. Section 4(2) of the Code as reproduced above makes it clear as to with whom the jurisdiction, will vest for trying such cases and that is with Magistrates. Similarly Section 26(b) makes it clear that offence under any law, when any Court is mentioned in this behalf, the case shall be tried by such Court. It is only when no Court is mentioned that the trial can be by any other Court by which such offence is shown, in the First Schedule to be triable. In the First Schedule Part-II special offences are shown to be friable by any Magistrate. By special provision in Section 142(c) of the Act it has been prescribed to be Magistrate of First Class. Therefore, the summons case which are friable by the Court of Magistrate, 1st Class cannot be tried by the Court of Sessions. The specific provision under Section 142(c) of the Act, to our mind, excludes the jurisdiction of the Court of Session and, therefore, the transfer of case from the Court of Metropolitan Magistrate to the Court of Sessions is in violation of the provision of special enactment i.e. N.I. Act. The Apex Court in the case of P.C. Gulati v. Lalya Ram and Ors., , was not dealing with transfer of case under the special legislation. Even otherwise no order under Section 407 of the Code could have been passed in view of judgment of Supreme Court in A.R. Antulay’s case (supra). The procedure prescribed under the special enactment i.e. N.I. Act cannot be circumvented by either invoking he provision of Section 407 of the Code or Article 227 of the Constitution. By doing so this High Court acted contrary to the relevant statutory provision as envisaged under Section 142(c) of the Act.

14. We also find force in the submission of Mr. Anil Kumar Sharma that there will be a discrimination between the persons accused of the offence under Section 138 whose cases were filed after 31.12.2001 and the petitioners against whom the cases were filed prior to 31.12.2001. The accused against whom cases are filed after 31.12.2001 would be used by Metropolitan Magistrate or the Judicial Magistrate First Class, whereas the cases of the petitioners are to be tried by the Additional Sessions Judge. It discriminates between persons accused of the same offence. In the case of petitioners their appeal will be filed from he order of the Additional Sessions Judge to the High Court and hereafter they will have no right of revision. Mr. Neeraj Kaul contended that right of revision is not a statutory right. There is no quarrel with this proposition but at the same time we cannot lose sight of the fact that these petitioners under Section 482, Cr.P.C. could have challenged the order of Additional Sessions Judge by way of revision. This right has definitely been taken away on account of transfer of cases from the Court of Magistrate, 1st Class to the Court of Sessions. In the case of State of West Bengal v. Anwar, , the Act which was passed by the West Bengal Government with the object to provide for speedy trial of certain cases was struck down as void being in violation of Article 14 of the Constitution. The Apex Court in paras 37 and 93 of the judgment observed as follows:

“37. Speedier trial of offences may be the reason and motive for the legislation but it does not amount either to a classification of offence or of cases. As pointed out by Chakravarti, J. the necessity of a speedier a criterion to form the basis of valid and reasonable classification. In the words of Das Gupta, J. it is too indefinite as there can hardly be any definite objective test to determine it. In my opinion, it is no classification at all in the real sense of the term… The mere fact of classification is not sufficient to relieve a Statute from the reach of the equality clause of Article 14…..
93. Whether it is an experiment in speedier trials made for the good of society at large. It matters now how lofty and laudable the motives are. The question with which I charge myself is, can fair-minded, reasonable, unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable; just and fair, regard it as that equal treatment and protection in the defense of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad.”
15. These observations squarely apply to the facts of this case. The object of transfer of cases filed up to 31.12.2001 cannot form the basis of any classification between the persons accused of the same offence. Therefore, to our mind, it amounts to hostile discrimination and as already pointed out above it has taken away their right of appeal to the Court of Sessions under Section 374(3) of the Code and the right of revision to the High Court under Section 397 of the Code from any judgment/order of the Court of Session. In A.R. Antulay’s case the Apex Court declared that the remedy of the revision is a right conferred under the Code. In the case of T. Ramachan Rao v. Karnataka, 2001 (II) AD (Cr.) SC 233, the Apex Court observed:

“No person shall be deprived of his life or personal liberty except according to the procedure established by law declares Article 21 of the Constitution. … persuaded the Constitutional Courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. Speedy trial, again, would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision and re-trial in short everything commencing with an accusation and expiring with the final verdict — the two being respectively the terminus a quo and terminus ad qua of the journey which an accused must necessarily undertake once faced with an implication.”
16. Therefore, the object of speedy trial would include the remedies as provided under the Code which also include the remedy of revision and denial of that remedy, to our mind, would hit Article 21 of the Constitution. We also find force in the submission of Mr. Anil Kumar Sharma that in case of petitioners two ladders of remedy have been taken away by the impugned order. The first is of filing an appeal to the Court of Sessions and second revision to the High Court. Whereas the persons against whom cases are filed after 31.12.2001 they would continue to avail two ladders of the remedy. This is not permissible under the law. Section 482 of the Code is a safeguard available by which the High Court exercises superintendence over the Courts below and prevents any miscarriage of justice. By taking away this right of the petitioners the safeguard provided under the Code has also been taken away which violates the right of the petitioners under Articles 21 and 41 of the Constitution. In the case of Krishnan and Ors. v. Krishnaveni and Anr., , the Apex Court observed:

“In view of the above discussion, we hold that though the the revision before the High Court under Sub-section (1) of Section 397 is prohibited by Sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the Courts below.”
17. Therefore, any curtailment of right of accused such as in the present case and any denial of safeguard to the accused could be unconstitutional.

18. For the reasons stated above we are of the view that the impugned order transferring the cases under the special legislation i.e. N.I. Act from the Court of Metropolitan Magistrate or a Judicial Magistrate 1st Class to the Court of Sessions has violated the right of the petitioner beside being discriminatory. Even otherwise under the special legislation, the power to try such offences vests with the Metropolitan Magistrate or the Judicial Magistrate of First Class as envisaged under Section 142(c) of the Act and by applying the provision of Article 227 of the Constitution or for that matter Section 407 of the Code, the powers of the Magistrate, First Class cannot be taken away and conferred on the Court of Sessions by misinterpreting the provision of Section 142(c) of the N.I. Act. The petitions are accordingly allowed. The impugned order is set aside. The cases transferred to the Additional Sessions Judges would be sent back to the Metropolitan Magistrate for being tried in accordance with law from the stage those would be received from the Court of Sessions. It may, however, be clarified that the cases already decided and the judgments delivered by the Additional Sessions Judges will not be treated as without jurisdiction.

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