JUDGMENT : 1. The present proceedings arise out of a complaint filed by one Ramadas Shrinivas Nayak in the Court of the learned Sessions Judge and Senior Special Judge in Bombay for offences under Sections 161, 165, 420 and 483 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act, 1947. The learned Special Judge His Honor Shri Bhutta took cognisance and issued process against the accused. The case was registered as Special Case No. 24/82. All the offences were alleged to have been committed by the accused during the time when he was the Chief Minister of Maharashtra. Prior to the filing of the complaint the Governor of Maharashtra had sanctioned the prosecution of the accused for some of the offences alleged in the complaint but in view of the fact that before 9th August, 1982 the accused has resigned his office the necessity for obtaining any sanction under the Prevention of Corruption Act did not arise. The complaint therefore included some offences for which the Governor had not granted a sanction. No sanction under the Prevention of Corruption Act was necessary for offences of cheating and extortion. 2. When the accused appeared before the learned Special Judge he objected to the jurisdiction of the learned Judge on the ground that the case had not been properly allocated to him by the State Government. His Honor Judge Bhutta after hearing the parties decided that the case was validly before him and he had properly taken cognizance. The order of the learned Judge was based upon a construction of the existing orders of allotment of work which were in force at that time. 3. Against the order of the learned Special Judge rejecting the accused’s contention the accused filed a revisional application in the High Court of Bombay being Criminal Revision Application No. 510 of 1982. During the pendency of the said revisional application the Government of Maharashtra issued a notification dated 16-1-1983 appointing His Honor Judge Shri R.B. Sule as Judge for Special Case No. 24/82. The accused thereafter did not raise any further objections in the High Court against cognizance by Shri Bhutta. His other objections were, however, dismissed by the High Court by its judgment and order dated 7th March, 1983. 4. The accused thereafter did not raise any further objections in the High Court against cognizance by Shri Bhutta. His other objections were, however, dismissed by the High Court by its judgment and order dated 7th March, 1983. 4. Against the order of the Bombay High Court the accused appealed by leave under Article 136 of the Constitution to this 'Honble Court. In that appeal only one point was argued, viz. that a private complaint in respect of offences covered by Section 6 of the Prevention of Corruption Act is not competent. No other point was argued. The said appeal being Criminal Appeal No. 247/83 was dismissed by this Honble Court by its judgment dated 16th February, 1984, reported in (1984) 2 S.C.R. 914 . The last paragraph of this judgment at page 954 reads as under : "Having examined the matter from all the different angles, we are satisfied that the conclusion reached both by the learned special Judge and Division Bench of the Bombay High Court that a private complaint filed by the complainant was clearly maintainable and that the cognisance was properly taken, is correct. Accordingly, this appeal fails and is dismissed." It is clear that only one point was urged and disposed of. 5. This judgment precludes any argument about the validity of the cognisance taken by His Honor Judge Bhutta on the 9th of August, 1982. The Supreme Court has affirmed the order of the learned Special Judge and it is not open to the accused to go behind that order. 6. The case proceeded further before His Honor Special Judge Sule, the successor Judge and the learned Judge passed an order of discharge on 25th July, 1983. That order itself had been set aside by the Constitution Bench of this Honble Court on 16th February, 1984. The order of taking cognisance has thus become final and cannot be reagitated. Moreover Section 460 (e) of the Code of Criminal Procedure expressly provides that if any Magistrate not empowered by law to take cognisance of an offence on a complaint under Section 190 of the Code erroneously in good faith does that thing his proceedings shall not be set aside merely on the ground of his not being so empowered. 7. Moreover Section 460 (e) of the Code of Criminal Procedure expressly provides that if any Magistrate not empowered by law to take cognisance of an offence on a complaint under Section 190 of the Code erroneously in good faith does that thing his proceedings shall not be set aside merely on the ground of his not being so empowered. 7. Against the order of discharge dated the 25th July, 1983, the complainant sought leave under Article 136 of the Constitution of India from this Hon'ble Court and he also filed a Criminal Revisional Application No. 354/83 in the High Court which was transferred to this Honble Court as Transferred Case No. 347/83. By its judgment dated 16th of February, 1984, the Constitution Bench set aside the discharge order. The said judgment is reported in (1984) 2 SCR 495 . The said judgment disposed of both the appeal by leave as well as the Criminal Revisional Application transferred from the High Court. 8. When the order of discharge is set aside it is incumbent upon the Court to make a consequential order in exercise of powers under Section 401 read with Section 386 (d) and (e). The order of the Court is not complete without such a consequential or incidental order. Clauses (d) and (e) of Section 386 Cr.P.C. read together make it clear that when an order of discharge is reversed the reversal itself is an order. The further consequential or incidental provision about what should take place on the discharge order being set aside is also an order. Any attempt therefore to draw a distinction between the judgment and an order or order and/or a direction is futile. The order of the Constitution Bench is an essential part of its judgment of 16th February, 1984. What applies to the reversal of the discharge order applies to the order that the case should stand withdrawn and be tried by the High Court Judge. It is one integrated order, but even if it consists of two parts it makes no difference to the issues arising in the present proceedings before this Honble Court. 9. The two judgments delivered by this Honble Court on 16th of February, 1984, have to be read together. Both arose out of the same case. It is one integrated order, but even if it consists of two parts it makes no difference to the issues arising in the present proceedings before this Honble Court. 9. The two judgments delivered by this Honble Court on 16th of February, 1984, have to be read together. Both arose out of the same case. Section 7 of the Criminal Law Amendment Act, 1952, came for detailed scrutiny and analysis in the judgment dealing with the appeal by the accused. (1984) 2 SCR p. 914. The Court has adverted to Section 7 (1) of the Criminal Law Amendment Act at more than one place. For example at page 931 occurs the following sentence : "Sec. 7 confers exclusive jurisdiction on the special Judge appointed under Section 6 to try the cases set out in Section 6(1) (a) and 6 (1) (b)." Again in the same paragraph the Court states : "Three things emerge from Section 7. The special Judge has exclusive jurisdiction to try offences enumerated in Section 6 (I) (a) and (b)...." (Emphasis added) Inspite of the Court adverting to Section 7 and the exclusive jurisdiction conferred upon the Special Judge, the Court proceeded to order that the further trial shall take place before the High Court. The Court, therefore, took the view that the exclusive jurisdiction created by Section 7 (1) of the Criminal Law Amendment Act did not prevent a transfer being ordered from the Special Judge to the High Court. Indeed the Constitution Bench itself explained this in the order which it made on April 5, 1984, reported in (1984) 3 S.C.R. p. 412. That order must be read in the context of the application made to this Honble Court leading to the making of that order. That petition is Crl. Misc. Petition No. 1740/84 at Page 105 of Vol. II (Compilation filed on behalf of Respondent No. 1). That order must be read in the context of the application made to this Honble Court leading to the making of that order. That petition is Crl. Misc. Petition No. 1740/84 at Page 105 of Vol. II (Compilation filed on behalf of Respondent No. 1). The prayers (A) and (B) of that application are to be found at page 121, which read as under : "(A) That this Honourable Court may direct that the procedure to be followed at the trial by the High Court would be the one which would have been followed by the Special Judge if the case had not been transferred ; (B) That it be declared that the Advocates engaged by the Complainant are and would be entitled to conduct the prosecution before the High Court; " Both these prayers were granted because the learned Judges declared that they had exercised the powers which the High Court could and would have exercised while disposing of the Criminal Revision Application No. 354/83 withdrawn from the High Court of Bombay. This Court decided that since the transfer had been made under Section 407 the procedure would be that under Section 407 (8) viz. that of the Special Judge from whom the case had been withdrawn. The relevant Section 474 and Section 407 (8) of the Criminal Procedure Code were re-produced at page 112 in that application. Now it is not arguable that when a Criminal Revision Application is withdrawn for disposal by this Honble Court this Court cannot exercise the powers which the High Court would have and could have exercised. In any event the Constitution Bench so held by its classificatory order of 5th of April, 1984. This order was made in presence of the accused and his counsel as well as the counsel for the Government of Maharashtra. The order expressly records that no submission was made in connection with the prayer for clarification and the grant of the said prayer. This order made after hearing all parties confirmed the original order of the 16th of February, 1984 and indicated the procedural modalities by which it has to be carried out by the High Court. The learned Judges further declared that what they were doing was clear from their earlier order and was implicit therein. 10. This order made after hearing all parties confirmed the original order of the 16th of February, 1984 and indicated the procedural modalities by which it has to be carried out by the High Court. The learned Judges further declared that what they were doing was clear from their earlier order and was implicit therein. 10. It is settled law that no Court is bound to follow the decision of its own if it is satisfied that the decision was given per incuriam. This settled rule requires to be understood as the Appellants argument has proceeded upon a total misconception. In his written submission the Appellant relies for the proposition on the Bengal Immunity Co. case reported in 1955 (2) SCR 603 at 623. The said judgment was not dealine with review or recall of a decision, judgment or order which had become conclusive between the parties. The Bengal Immunity Company Limited putting a certain construction on the Bihar Sales Tax Act, 1947, challenged the validity of a demand of tax under the said Statute. The view taken by the Company was, however, directly in the teeth of an earlier decision of the Constitution Bench of the Supreme Court in the case, State of Bombay v. United Motors Ltd., (1953) SCR 1069. The Court was examining only the doctrine of precedent and determining the extent to which it could depart from a view previously taken in a different case between different parties. The doctrine of incuriam has no application to orders made in the same case. At page 624 the learned Acting Chief Justice referred to the Australian Rule with approval which is as follows : "Changes in the number of appointed Justices can, I take it, never of themselves furnish a reason for review. That the prior decision was that of little more than half their number might be urged with greater fairness, but it cannot be urged against Whybrows case which was decided by the whole Court then in existence save the Justice who as President of the Arbitration Court, was a party respondent to the order NISI. That the prior decision was that of little more than half their number might be urged with greater fairness, but it cannot be urged against Whybrows case which was decided by the whole Court then in existence save the Justice who as President of the Arbitration Court, was a party respondent to the order NISI. But the Court can always listen to argument as to whether it ought to review a particular decision, and the strongest reason for an overruling is that a decision is manifestly wrong and its continuance is injurious to the public interest." The learned Judge then concluded at page 627-628 that : "There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public." 11. The doctrine of incuriam has no relevance to the present case. The Court deliberately with full consciousness of Section 7(1) of the Criminal Law Amendment Act, 1952, proceeded to act under Section 407 (1) (iv) Cr.P.C. It was manifest to the Bench that the exclusivity created by Section 7 (!) of the Criminal Law Amendment Act, 1952, did not preclude the exercise of power under Section 407 (1) (iv). It is monstrous to characterise such a decision as per incuriam. A decision is certainly not incuriam merely because a larger number of Judges come to feel that the previous Bench did not correctly construe the Statute. 12. The primary duty of every Court is to adjudicate cases arising between the parties. It is certainly open to a larger Bench in some other case to take the view that the view of the earlier Bench was manifestly erroneous and trial of a corrupt Chief Minister before the High Court instead of a Judge designated by the State Government is so injurious to public interest that it should be over ruled. 13. Two questions arise about the impugned order of the Constitution Bench: (1) Does the impugned order promote justice? (2) Is it technically valid? The answer to both these questions is only one, Yes. It is to these two aspects that I now advert. 14. 13. Two questions arise about the impugned order of the Constitution Bench: (1) Does the impugned order promote justice? (2) Is it technically valid? The answer to both these questions is only one, Yes. It is to these two aspects that I now advert. 14. A Special Judge is appointed by the State Government by notification under Section 6 of the Criminal Law Amendment Act, 1952, from persons who are or have been Sessions Judges, Additional Sessions Judges or Assistant Sessions Judges. The State Government can thus appoint not only sitting Judges but retired Judges to act as Special Judges. Judges thus appointed have incurred the disapproval of this Court. 15. Attention is drawn to In Re : Special Courts Bill, 1978, (1979) 2 SCR p. 476. The Special Courts Bill which became the subject matter of the Advisory opinion, contained a provision that the Special Court shall be presided over by either a sitting or a retired Judge of a High Court nominated by the Central Government in consultation with the Chief Justice of India. The Court held that in so far as the Judge was designated by the Government only in consultation with the Chief Justice of India the provision would be repugnant to Article 21. This is what the Court said at pages 550-551 : "Yet another infirmity from which the procedure prescribed by the Bill suffers is that the only obligation which clause 7 imposes on the Central Government while nominating a person to preside over the Special Court is to consult the Chief Justice of India. This is not a proper place and it is to some extent embarrassing to dwell upon the pitfalls of the consultative process though, by hearsay, one may say that as a matter of convention, it is in the rarest of rare cases that the advice tendered by the Chief Justice of India is not accepted by the Government. But the right of an accused to life and liberty cannot be made to depend upon pious expressions of hope, howsoever past experience may justify them. The assurance that conventions are seldom broken is a poor consolation to an accused whose life and honour are at stake. But the right of an accused to life and liberty cannot be made to depend upon pious expressions of hope, howsoever past experience may justify them. The assurance that conventions are seldom broken is a poor consolation to an accused whose life and honour are at stake. Indeed, one must look at the matter not so much from the point of view of the Chief Justice of India, nor indeed from the point of view of the Government, as from the point of view of the accused and the expectations and sensitivities of the society. It is of the greatest importance that in the name of fair and unpolluted justice, the procedure for appointing a Judge to the Special Court, who is to be nominated to try a special class of cases, should inspire the confidence not only of the accused but of the entire community. Administration of justice has a social dimension and the society at large has a stake in impartial and even-handed justice." 16. Now under the Criminal Law Amendment Act, 1952, one is not dealing with a High Court Judge but a Judge who may only be an Assistant Sessions Judge or at best an Additional Sessions Judge or a Sessions Judge. The appointment is not by the Central Government but by the State Government. There is not even the safeguard of a consultation with the Chief Justice of the High Court or with the Chief Justice of India. In the words of the Supreme Court itself the community at large cannot be blamed for not placing full confidence in Judges of that kind called upon to try charges of cheating and corruption against one who was a Chief Minister and who may any time return to power. This Court can take judicial notice of the fact that a Bill was introduced in the Maharashtra Legislature conferring immunity from prosecution on the present accused by the simple device of declaring that no prosecution on a private complaint is competent. Obviously the Government and the political party to which the accused belonged would ensure that there will be no State prosecution under any circumstances whatsoever. It is remarkable that there has not been one inspite of the fact that atleast on some of the charges sanction had been given by the Governor of the State. Obviously the Government and the political party to which the accused belonged would ensure that there will be no State prosecution under any circumstances whatsoever. It is remarkable that there has not been one inspite of the fact that atleast on some of the charges sanction had been given by the Governor of the State. What the Supreme Court had, therefore, done promotes public confidence without which justice can never seem to be done. 17. Secondly, the Courts of Special Judges are also congested. And thirdly, in the present case His Honor Judge Sule had been notified as a Special Judge for this case under circumstances which clearly were not calculated to enhance confidence in the Judge. The case had been instituted before the Senior most Judge who held that he had jurisdiction to try because the case had been validly assigned to him. Inspite of that order the State Government proceeded to issue a notification assigning the case to some other Judge who proceeded to discharge the accused by a judgment which quiet shocked the legal fraternity and many laymen as well. No wonder the judgment was with some amount of expedition set a side by this Honble Court by its order of the 16th of February, 1984. 18. By directing the trial to take place before a Judge of the High Court this Court gave effect to the very judgment of the 7 Judges in the Special Courts Bill case. Objections were raised to the Bill on the ground that an appeal to the High Court and then a 136 appeal to the Supreme Court were being taken away. The Court had no difficulty in holding that a trial before a High Court Judge and a final appeal to this Hon’ble Court obviates any such grievance. 19. In a latter case, (1980) 3 SCR 500 , (V.C. Shukla v. Delhi Administration), where similar objections were raised that the accused’s normal rights of appeal were being interfered with, the Court said : "The fact that under the Act the Special Court is presided over by no less a person who is a sitting Judge of the High Court and the possibility of miscarriage of justice is reduced to a bare minimum. It also quoted with approval the observation made in an earlier case : "That the Act makes a distinct departure from the trial of ordinary offences by criminal courts in that the trial of the offences is entrusted to a very high judicial dignitary who is a sitting Judge of the High Court to be appointed by the Chief Justice concerned on the recommendations of the Chief Justice of India. This contains a built-in safeguard and a safety valve for ensuring the independence of judiciary on the one hand and a complete fairness of trial on the other. In appointing the Special Judge, the Government has absolutely no hand or control so that the Special Judge is appointed on the recommendations of the highest judicial authority in the country, viz. the Chief Justice of India. This would naturally in still great confidence of the people in the Special Judge who is given a very elevated status." 20. It is obvious therefore that no prejudice of any kind was being caused by the order that the case be tried by the High Court. An honest accused should welcome it. An honest politician determined to have his innocence declared as early as possible should welcome it. It is quite clear that the law confers no vested right to any particular forum on any accused of any description whatsoever. The Constitution Bench declared that it was passing the order of transfer to ensure a speedy trial. This cannot be challenged and it is manifestly ridiculous that the accused has a right to complain why he is being more expeditiously tried than others. 21. It was suggested during the course of argument that the accused was being singled out. This argument is both extraordinarily unfair and manifestly untenable. The whole of the Criminal Procedure Code except provisions manifestly inconsistent are applicable to trials before the Special Judges. The power of transfer lodged in the High Court is a potentially exercisable power for every trial and every accused. Merely because the occasion for exercise of that power arises either rarely or in a single case the accused of that case cannot be said to be singled out. What singles him out is the fact that in the history of this country a Chief Minister of a State has been prima facie found to be guilty of corruption and cheating for the first time. What singles him out is the fact that in the history of this country a Chief Minister of a State has been prima facie found to be guilty of corruption and cheating for the first time. It is for the first time in the history of the Criminal Law Amendment Act that the State Government has divested a competent Special Judge of his jurisdiction and vested it in another Special Judge of its choice. It is for the first time that a Special Judge has arrived at a astounding conclusion that a Chief Minister cannot be prosecuted without the sanction of a majority of the members of the Assembly just because he happens to be an M.L.A. It is for the first time that a Chief Minister was found guilty of receiving quid-pro-quo for orders for allotment of cement to various builders by a Single Judge of the High Court confirmed by a Division Bench of the Court. It is for the first time that such a Chief Minister did not have the courage to prosecute his Special Leave Petition before this Hon’ble Court against the findings of three Judges of the High Court. It is for the first time that the Supreme Court found that a case instituted in 1982 had made no progress till 1984. Inspite of this Court having declared through 7 Judges : "To punish such super-offenders in top-positions, sealing off legalistic escape routes and dilatory strategies and bringing them to justice with high speed and early finality, is a desideratum voiced in vain by Commissions and Committees in the past and is a dimension of the dynamics of the Rule of Law," and "and in the name of democracy, there can be no doubt the trial of such persons must be concluded with the utmost dispatch in that interest of the functioning of democracy in our country and the institutions created by our Constitution. Longer these trials will tarry, assuming the charges to be justified, greater will be the impediments in fostering democracy, which is not a plant of easy growth. If prosecutions which the Bill envisages are allowed to have their normal, leisurely span of anything between 5 to 10 years, no fruitful purpose will be served by launching them. Speedy termination of prosecutions under the Bill is the heart and soul of the Bill. 22. If prosecutions which the Bill envisages are allowed to have their normal, leisurely span of anything between 5 to 10 years, no fruitful purpose will be served by launching them. Speedy termination of prosecutions under the Bill is the heart and soul of the Bill. 22. It is true that an order may be just, in fact one without which injustice cannot be avoided and yet it may be technically irregular or without jurisdiction. Fortunately it is not so. The order is perfectly within the terms of the Statute and completely regular and free from legal defect, jurisdictional or otherwise. The grave man of the Appellants arguments is that by reason Section 7 (1) of the Criminal Law Amendment Act, 1952, there can be no trial in any court other than that of the Government designated Special Judge. It is argued that just because Section 7 (1) of the Act says, "shall be triable by special Judges only", under no circumstances can the case be transferred to be tried by the High Court even in its Extraordinary Original Criminal Jurisdiction. 23. In so far as Section 407 (1) (e) purports to authorise such a transfer it is protanto repealed in respect of cases pending before a Special Judge. Now this line of argument is fallacious for more than one reason and has to be rejected. The first reason, of course, is that a Constitution Bench of this Court did not regard this as a correct view. It made the order of transfer with full knowledge of Section 7 (1) and the so-called exclusive jurisdiction that it vests in the Special Judges. That order is binding and is not incuriam or void. See page 128, Dias Jurisprudence, 5th Edition, citing 1975 (3) All. E.R. 801 at 821. The per incuriam rule does not apply where the previous authority is alluded to. Here it is not an authority but a statutory provision. It has been adverted to in the very judgment of the Constitution Bench delivered on the very same day. The second reason is that whenever a Special Court is created its jurisdiction becomes exclusive qua competing Courts of the same category or such of them as were till then habitually dealing with those offences. An illustration is provided by Section 11 of the Code of Criminal Procedure, 1973. The second reason is that whenever a Special Court is created its jurisdiction becomes exclusive qua competing Courts of the same category or such of them as were till then habitually dealing with those offences. An illustration is provided by Section 11 of the Code of Criminal Procedure, 1973. Under the proviso to this Section the State Government after consultation with the High Court can establish one or more Special Courts of Judicial Magistrates to try any particular case or any particular class of cases. Proviso then proceeds to state, "where any such Special Court is established, no other court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established." No one can make the absurd suggestion that the High Court has no power to transfer a case from such a Special Court. Now this is precisely what Section 7 (1) of the Criminal Law Amendment Act, 1952, does. When the Act was passed in 1952, the offences in question were triable under the Schedule to the old Code both by Magistrates and Sessions Judges. To ensure that the trial of such cases does not get bogged down in Courts whose original Criminal Jurisdiction was clogged with congested calendars it was provided that these cases shall be tried only by Specially marked Judges. There was no intention to effect any further change in law than this. 24. The following principles of interpretation of statutes are too well known to need support of authority. First : When an amending Statute changes the law, the change must be confined to the mischief perceived and intended to be dealt with. The Tekchand Committee Report did not envisage that an occasional case withdrawn from a Subordinate Court and tried in the High Court was a cause of delay in the disposal of corruption cases. Second : Interference with existing jurisdiction and powers of superior Courts can only be by express and clear language. It cannot be brought about by a side wind. Third : The Criminal Procedure Code and the Criminal Law Amendment Act, 1952, have to be read and construed together. The Court is never anxious to discover a repugnancy and infer a protanto repeal. Resort to the non-obstante clause is permissible only when it is impossible to harmonise the two provisions. It cannot be brought about by a side wind. Third : The Criminal Procedure Code and the Criminal Law Amendment Act, 1952, have to be read and construed together. The Court is never anxious to discover a repugnancy and infer a protanto repeal. Resort to the non-obstante clause is permissible only when it is impossible to harmonise the two provisions. The relevant extracts from G.P. Singhs Principles of Statutory Interpretation, 3rd Edition, and Francis Bennions Statutory Interpretation, 1984 Edition, are annexed hereto marked as Annx. "A" (Colly.) 25. Now the sheet anchor of the Appellants case has been Chadhas case reported in 1966 (2) SCR 678 . The accused of that case was being prosecuted in the Court of a Special Judge, Bharatpur in the State of Rajasthan. He asked for transfer of his case under Section 527 of the Code of Criminal Procedure, 1898, to any other Criminal Court of equal or superior jurisdiction subordinate to a High Court other than the High Court of Rajasthan. Section 527 of the old Code under which the application was made is reproduced at page 681 of the judgment. As soon as an argument was made that a Special Judge is a Court of exclusive jurisdiction Mr. Justice Hidayatullah said that this objection can be taken care of by transferring the case to another Special Judge in some other State. The Section under which the Supreme Court was acting contains no power at all to transfer the case from a Special Judge to the High Court. The power is only to transfer it from one criminal Court subordinate to one High Court to another criminal Court of equal or superior jurisdiction subordinate to another High Court. Now Section 527 of the old Code was held applicable to a Special Judge. Under the Section, since the transfer could only be made to a criminal Court of equal or superior jurisdiction subordinate to the High Court, the case could not be transferred to any Court other than a Special Judge. This case is not an authority of any kind for the construction of Section 526 corresponding to present Section 407 of the Code. The observation that a trial by a Special Judge is a sine qua non for the trial of certain offences is not the ratio of the case and the case is not an authority for anything relevant to the present case. The observation that a trial by a Special Judge is a sine qua non for the trial of certain offences is not the ratio of the case and the case is not an authority for anything relevant to the present case. On the other hand the case establishes one proposition firmly that both Sections 527 and 526 corresponding to Sections 406 and 407 of the new Code apply to a Special Judge. The second proposition which is a ratio of the case is about what inconsistency means in two provisions of law. At page 685 the Court observes that inconsistency can only be found if two provisions of law apply in identical circumstances and create contradictions. Such a situation does not arise when either this Court or the High Court exercise its powers of transfer. Now Section 526 unlike Section 527 (Section 407 unlike Section 406 of the new Code) expressly permits the High Court to transfer any case to the High Court to be tried before itself. The words of Section 407 are wide and do not admit of any limitations. Section 7 (1) of the Criminal Law Amendment Act is not inconsistent with this Section because the two operate in different fields. Section 7(1) deals with Ordinary Original Criminal Jurisdiction applicable to all corruption cases whereas Section 407 of the Code deals with the justice requirements of an individual case. The two provisions are not repugnant and are capable of being harmonised. 26. That the power of transfer can be exercised by the High Court in relation to corruption cases before a Special Judge is recognised in two earlier cases as well. See (1962) 2 SCR 50 and (1966) 1 SCR 560 . Now in this connection it may be mentioned that the High Court of Bombay had at one time both Ordinary Original Criminal Jurisdiction and Extra-ordinary Original Criminal Jurisdiction. The former was taken away in 1948 when the Sessions Court of Bombay was established. The new Code of Criminal Procedure has taken away the Ordinary Original Criminal Jurisdiction of all the three Chartered High Courts. These three Chartered High Courts in common with all other High Courts possess only Extraordinary Criminal Original Jurisdiction. The former was taken away in 1948 when the Sessions Court of Bombay was established. The new Code of Criminal Procedure has taken away the Ordinary Original Criminal Jurisdiction of all the three Chartered High Courts. These three Chartered High Courts in common with all other High Courts possess only Extraordinary Criminal Original Jurisdiction. The existence of this jurisdiction is expressly recognised in Section 374 (1) of the Code of Criminal Procedure which reads as under : "Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court." This law is one of the laws contemplated by Article 134 of the Constitution in Clause (2) thereof. The said Article is here below reproduced : "134. Appellate Jurisdiction of Supreme Court in regard to criminal matters. - (1) An appeal shall lie to Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court : (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or (b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or (c) certifies under Article 134-A that the case is a fit one for appeal to the Supreme Court : Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of Article 145 and to such conditions as the High Court may establish or require. (2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceedings of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law." Article 134 (1) (b) expressly recognises that every High Court has powers to withdraw for trial cases from any court subordinate to its authority. It gives a right of appeal only to those who have been sentenced to death. But by Clause (2) it permitted Parliament to expand the right of appeal. Section 374 of the Criminal Procedure Code is one such act of expansion. 27. It gives a right of appeal only to those who have been sentenced to death. But by Clause (2) it permitted Parliament to expand the right of appeal. Section 374 of the Criminal Procedure Code is one such act of expansion. 27. The Extraordinary Original Criminal Jurisdiction has its source in : (i) Section 407 of the Code of Criminal Procedure; (ii) Clause 29 of the Letters Patent of the Chartered High Courts; (iii) Clause 24 of the Letters Patent of the Chartered High Courts; and (iv) Article 228 of the Constitution of India. This extraordinary jurisdiction cannot be taken away by the so-called exclusivity created by Section 7 of the Criminal Law Amendment Act, 1952. 28. The same analogy is available on the civil side. The Bombay High Court has ordinary original civil jurisdiction as well as extraordinary original civil jurisdiction. Now Section 28 of the Bombay Rent Control Act vested the trial of rent matters in the Court of Small Causes, Bombay and expressly provided that no other court shall have jurisdiction to try such a suit The words of Section 28 excluding jurisdiction of other Courts are clearer and stronger than the words of Section 7 (1) of the Criminal Law Amendment Act, 1952. Nevertheless the High Court of Bombay had no difficulty in holding that the extraordinary original civil jurisdiction of the High Court was not by these words excluded. See the judgment of Chagla, C.J. and Tendulkar, J. in AIR 1949 Bombay p. 42. The text of the Section is reproduced in paragraph 31 at page 53 of the judgment. Both the learned Judges had no difficulty in rejecting the argument that the High Court could not try the suit by transferring it from the Court of Small Causes to itself. Incidentally Justice Tendulkar said that, "It is a well known cannon of construction that in dealing with a Statute which affects the jurisdiction of superior courts the jurisdiction of such courts shall not be excluded except by clear words to that effect." Section 7 (1) of the Criminal Law Amendment Act does not meet this requirement. 29. Incidentally Justice Tendulkar said that, "It is a well known cannon of construction that in dealing with a Statute which affects the jurisdiction of superior courts the jurisdiction of such courts shall not be excluded except by clear words to that effect." Section 7 (1) of the Criminal Law Amendment Act does not meet this requirement. 29. If the Constitution Bench of this Court acted on the same view of the law as found favour with two eminent Judges of the Bombay High Court, it is not open to a Bench of this Court whether of 7 or 9 Judges to regard that view as a nullity or without jurisdiction or per incuriam. 30. It is then argued that the order of the Constitution Bench is void or non-est because the Constitution Bench of the Supreme Court proceeded to make the impugned part of the order without hearing the accused. Now this submission is factually incorrect. It is true that there were no long arguments on the legality or propriety of making that part of the order. But it is now conceded or at any rate not denied that what really happened was has been accurately described under Point No. 1 in the written submissions filed on behalf of this Respondent on the second day of the hearing of this matter. The relevant passage is hereunder reproduced for the sake of convenience : "(a) The argument under this head proceeds on a misconception. The judgment of the Constitution Bench was delivered in open Court on the 16th of February, 84. Counsel for both sides were present. Mr. V.M. Tarkunde was present on behalf of the Complainant, then Petitioner. He made a prayer that in the interests of justice the case should be ordered to be tried by the High Court. The learned Judges said that they had already considered that matter and given the necessary direction. Counsel for the accused, then Respondent and now Petitioner/Appellant neither objected nor stated that he wanted to be heard. No complaint was made about any denial of hearing or consulting his wishes in that regard either then or thereafter except as hereinafter mentioned." 31. Now so far as judicial orders are concerned they cannot be impugned for violation of the Audi Alteram Partem principle if the order is made not behind the back of a party but in his presence. Now so far as judicial orders are concerned they cannot be impugned for violation of the Audi Alteram Partem principle if the order is made not behind the back of a party but in his presence. A hearing is not said to be denied merely because the Judges had thought of making that consequential order after setting aside the discharge order. Strictly speaking it was the duty of the Appellant to anticipate that some consequential order will have to be made. If he expected that the case will be sent back to the same Special Judge who had discharged him it must have dawned on him that that expectation was being frustrated. Having realised that what the Judges were doing was contrary to his expectations he should have asserted his right to be heard there and then or if he was not ready on some adjourned date. Counsel for the accused kept quiet and this amounts to his having been heard. The Audi Alteram Partem principle does not require that the Judges should make a declaration of their intention to pass such an order and then issue a formal notice or some kind of a notice to the accused to show cause why the said order should not be made. 32. On the 13th and 16th of March, 1984, the accused having put aside his legal advisers addressed the Court of His Lordship Mr. Justice Khatri at great length. Attention is drawn to the two orders made by the learned Judge. One on the 13th of March, 1984 and the other on the 16th of March, 1984. During his prolonged submission couched in disrespectful and offensive language the accused never submitted that the order had been passed without hearing him. If that was his grievance he himself as a Barrister and certainly the battery of lawyers representing him should have realised that the easier thing to do is to go back to the Court and claim a hearing on that part of the order which he had so violently attacked before Mr. Justice Khatri. The plea that he was not heard is, therefore, an after-thought. What transpired in Court on the 16th of February, 1984 was considered by the accused as well as his legal advisors as adequate hearing on the facts of the case. Justice Khatri. The plea that he was not heard is, therefore, an after-thought. What transpired in Court on the 16th of February, 1984 was considered by the accused as well as his legal advisors as adequate hearing on the facts of the case. The two orders of his Lordship Justice Khatri are at pages 77 and 82 of Volume II of the Paper Book (Compilation of Record filed on behalf of Respdt. No. 1). 33. Thereafter a Writ Petition and two Special Leave Petitions were filed by the accused before the Supreme Court. These were heard on the 17th of April, 1984. On behalf of the accused his counsel submitted to the Court a resume of his arguments in writing. These are to be found at pages 94 to 104 of Vol. II. It is significant that there is not one word in these long submissions that the accused had not been heard when the order was made. The Writ Petition and the Special Leave Petitions were disposed of by orders dated 17th April, 1984 which are printed at 1984 (3) S.C.R p. 482. It is quite clear from what transpired before this Honble Court on the 17th of April, 1984, that the Judges repeated to him what Mr. Justice Khatri had pointed out to him earlier that his proper remedy was by way of review. Though technically a review application was barred by the 30 days limitation rule yet the delay could have easily been condoned at that stage since the accused had resorted to wrong remedies perhaps bona fide. In fact it was open to his counsel to tell the learned Judges to treat his Special Leave Petition and the Writ Petition as a review petition and have it circulated for disposal as a review petition. The accused and his legal advisors were determined not to have a review petition for reasons which are pretty obvious. The accused, however, not told us what his reasons were. It is somewhat strange that the accused now complains that the learned Judges should have suo moto treated it as a review petition. There was no such obligation on the learned Judges. The accused was not an illiterate litigant without the benefit of legal advice or representation. The learned Judges were entitled to assume that for some reason the accused had decided not to invoke the review jurisdiction of the Court. 34. There was no such obligation on the learned Judges. The accused was not an illiterate litigant without the benefit of legal advice or representation. The learned Judges were entitled to assume that for some reason the accused had decided not to invoke the review jurisdiction of the Court. 34. It is significant that by his written application of the 28.1.1988 the accused has invited this Honble Court to treat his present petition as one for review under Article 137. There is no explanation as to why even on that date regular review application as required by Order 40 with a proper prayer for extension of time was not filed. The proper application will under the Rules have to go in the first instance to 5 Judges which will include the present learned Chief Justice and Honble Mr. Justice A.P. Sen. 35. At this stage it may be proper to deal with this written application of the accused a little more elaborately. In this connection reference may be made to the counter affidavit of one A.N. Kothandan filed on behalf of the Respondent No. 1. Paragraphs 3 to 17 of the said affidavit clearly establish that the present prayer is a gross abuse of process and a mala fide evasion of the review rules. 36. Apart from any technical rules of estoppel, res-judicata etc. every Court must see to it that there is no abuse of process. The following authorities were cited at the hearing : (1979) 1 All. E.R. 981 at 987 (1984) 1 All. E.R. 1009 at 1014 Reference may also be made to Seervai on Constitutional Law, Vol. I pages 260 to 265. (Copy already supplied). 37. The accused has been playing hide and seek with the Court and causing inordinate delay in the disposal of the case. When an ex-Chief Minister, who must be presumed to be anxious to clear his character as early as possible, after 9/10th of his trial is over wants a denovo trial before a inferior court, his devious motivation requires no further proof. In a wider sense the present proceedings themselves are abuse of process and the slightest hospitality to the accused’s pleas will lead to a grave miscarriage of justice and set up a precedent perilous to public interest. 38. In a wider sense the present proceedings themselves are abuse of process and the slightest hospitality to the accused’s pleas will lead to a grave miscarriage of justice and set up a precedent perilous to public interest. 38. As pointed out above the accused was heard and at any rate would have been heard if he wanted to be heard. The Audi Alteram Partem cannot therefore be invoked by such an accused. However, this plea of the accused can be looked at from another point of view. 39. The basis of the Audi Alteram Partem is that no man should be condemned without a hearing. In other words no order shall be passed to the prejudice of anyone without giving him an opportunity of being heard. This principle is clear from Section 403 of the Code which reads as under : "403. Option of Court to hear parties. - Save as otherwise expressly provided by this Code, no party has any right to be heard either personally or by the pleader before any Court exercising its powers of revision; but the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader." The setting aside of a discharge order is revisional jurisdiction of the High Court and the impugned order was made in exercise of the High Courts revisional jurisdiction. Section 401 (2) of the Code which is an exception to 403 provides. "No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence." The key words which attract a right to be heard are prejudice of the accused' and in his own defence.' 40. Now a person who is to be tried before an inferior court is ordered to be tried by a superior Court has no right to be heard because nothing is being done to his prejudice and no question arises of his making a defence. Defence assumes aggression. None is involved in giving him the benefit of trial before a superior forum. 41. Article 134 (1) (b) is a Constitutional repudiation of any possible argument of prejudice arising from cases being transferred to the High Court. Defence assumes aggression. None is involved in giving him the benefit of trial before a superior forum. 41. Article 134 (1) (b) is a Constitutional repudiation of any possible argument of prejudice arising from cases being transferred to the High Court. Moreover, the following authorities have clearly taken this view : AIR 1936 Madras 55 AIR 1961 Punjab 87 1960 (1) SCR 924 at 927. In the last mentioned case the accused convicted by a Magistrate had appealed to the Court of Sessions. The High Court having issued a notice of enhancement transferred the appeal pending in the Sessions Court to itself. This order of transfer was challenged inter alia, on the following grounds, (i) It was improper because there was no hearing: and (ii) it was unfair because he had been deprived of his rights to a decision from the Court of Appeal and also from the High Court in Revision. Both these arguments were rejected. On page 934 the Court disposed of both the objections and the relevant extracts are hereunder reproduced : "...It is true that the record does not disclose that any notice was issued to the appellant before the order of transfer was made. It was open to the High Court to act on its own initiative and the appellant can make no grievance of the order of transfer on the ground of prejudice, because the appellant was fully heard both as to the correctness of his conviction and the propriety of the sentence originally passed against him by the learned Magistrate. As to the last point that the procedure adopted had deprived the appellant of his right of getting first a decision from the court of appeal and then another from the High Court in the exercise of its revisional jurisdiction, we do not think that there is any substance in it. The High Court had validly before it both the appeal and the rule for enhancement of sentence. It heard the appellant fully with regard to both. Therefore, no question arises of depriving the appellant of any of his rights under the Code of Criminal Procedure." 42 The Appellants argument that he has been singled out for discriminatory treatment, has been briefly dealt with in Paragraph 21 above. What remains of that fanciful argument is the occasional reference which has been made to Anwar Alt Sarkars case. Therefore, no question arises of depriving the appellant of any of his rights under the Code of Criminal Procedure." 42 The Appellants argument that he has been singled out for discriminatory treatment, has been briefly dealt with in Paragraph 21 above. What remains of that fanciful argument is the occasional reference which has been made to Anwar Alt Sarkars case. The principle of that case is thoroughly irrelevant to the controversy in hand. That principle can be invoked only in those cases where two parallel procedures for the trial of criminal cases are available under two or more Statutes and power to decide which accused shall be tried according to the one or the other is a matter of executive discretion uncontrolled by guidelines. Every accused before a Special Judge under the Criminal Law Amendment Act is liable to have his case transferred to the High Court for trial on special circumstances favouring such a transfer being pointed out to the High Court. Even when the case is transferred to the High Court the actual procedure for the trial of the case remains the same under Section 407 (8) read with Section 474 of the Code. The result is brought about by judicial perception and not executive whim. Cases pending before the Magistrates have been transferred for trial to the Court of Sessions, See 1966 (1) SCR 560 . Cases before Sessions Judges have been transferred to the High Court and cases from ordinary Magistrates to Special Magistrates. In all these cases there has been interference with the so called vested rights of appeals and revisions and arguments founded thereon have been uniformly rejected. An instructive example is difficult to hold that this amounts to any discrimination. Apart from the fact that the trial by a special Magistrate and an appeal directly to the High Court against the order of the Magistrate may be regarded normally as more advantageous to the accused persons, the distinction between Courts to which the appeal may lie arises out of the constitution of the Special Magistrate and not any special procedure evolved by the Notification.'" ". ....The difference of the venue results from the nature of the jurisdiction exercised by the Magistrate trying the case, and not from any unequal dealing by the executive constituting the Courts of the Magistrates. ....The difference of the venue results from the nature of the jurisdiction exercised by the Magistrate trying the case, and not from any unequal dealing by the executive constituting the Courts of the Magistrates. It is because powers exercisable by a Presidency Magistrate are conferred upon the Special Magistrate, as they may lawfully be conferred, that the incidental right of appeal which is prescribed by the statute is exercisable in the High Court, and not in the Court of Session. We do not think that there is any discrimination practised by the Notification constituting a Special Magistrate for the trial of the case against the petitioners and others." Jagannath Sonu Sarkar v. State of Maharashtra, (1963) Supp. (1) SCR 573. In that case a smuggling offence would normally have been tried before a Judicial Magistrate at Deogad in Ratnagiri District of Maharashtra. The State Government under Section 14 of the old Criminal Procedure Code appointed a Special Judicial Magistrate having jurisdiction both over Greater Bombay and Ratnagiri District and conferred upon him powers of a Presidency Magistrate. It was argued by the accused that it was a discrimination. The argument was negatived by the Constitution Bench. Shah, J. speaking for the Court said : "...It is true that if the complaint was filed in the Court of Magistrate having jurisdiction over Deogad alone, as it could lawfully be filed, an appeal would, against an order of conviction, lie to the Court of Session, Ratnagiri and an application in the exercise of revisional jurisdiction to the High Court from the order of the Court of Session. 43. Anwar Ali Sarkars case on the other hand dealt with a situation totally dissimilar both in fact and law. The Bengal Legislature passed an Act enacting the provisions of an Ordinance which had earlier been issued and contained a provision enabling the State Government by Notification to have certain cases tried by Special Courts instead of by the regular Courts. These Special Courts followed procedure which was substantially disadvantageous to the accused as compared with the normal procedure applicable in the normal Courts. The special procedure certainly curtailed the accuseds rights and privileges. The Act did not contain any guidelines. It only contained the vague provision that in the interests of speedy trial of any particular case or cases the Government could direct the special procedure to be applicable. The special procedure certainly curtailed the accuseds rights and privileges. The Act did not contain any guidelines. It only contained the vague provision that in the interests of speedy trial of any particular case or cases the Government could direct the special procedure to be applicable. The Statute was declared unconstitutional on the ground that it did not lay down any policy or guidelines. Virtually it was the whim and pleasure of the State Government to decide in what cases it will apply speedier trial procedure. Vice of the Bengal Act was clothing the Executive with arbitrary power to pick and choose between two kinds of procedure which existed side by side. In the same year in a case from Saurashtra, Kathi Raning Rawat v. The State of Saurashtra, (1952) SCR 435, the same 7 Judges upheld the Saurashtra Statute which also created Special Courts for speedy trial. Anwar Ali Sarkars case was distinguished on the ground that the power of the State Government was not completely arbitrary but there were some guidelines for making the selection. These two cases and a host of others were all reviewed in 1978 by a Bench of 7 Judges in Re : Special Courts Bill, 1978, (1979) 2 SCR 476 . It was held in that case that purity in public life is a desired goal at all times and in all situations and ordinary criminal courts due to congestion of work cannot reasonably be expected to bring the prosecutions to speedy termination. It is imperative that persons holding high public or political office must be speedily tried in the interests of democracy. Longer these trials will carry, assuming the charges to be justified, greater will be the impediments in fostering democracy, which is not a plant of easy growth. The Supreme Court transferred the case of this accused as indeed it would have done in the case of any other accused placed in similar circumstances. There are no separate parallel procedures and it is not the naked power of the executive which decides what procedure shall be applicable. The normal Code of Criminal Procedure which applies to all the accused contains provision under which the High Court can transfer a case from a Special Judge to another Special Judge or to itself. There are no separate parallel procedures and it is not the naked power of the executive which decides what procedure shall be applicable. The normal Code of Criminal Procedure which applies to all the accused contains provision under which the High Court can transfer a case from a Special Judge to another Special Judge or to itself. The meaning of Anwar Ali Sarkar's case has been pointed out in 1980 (3) SCR 500 at pages 556 to 561. The very passage from Anwar Alis case relied upon by the Division Bench of their Lordships Mr. Justice E.S. Venkataramiah and Mr. Justice Sabyasachi Mukharjee in the referring order is cited there. The final conclusion is expressed thus : "All these observations have however, to be read in the light of the peculiar provisions of the West Bengal Act which contained no guidelines, no conditions, no safeguards but conferred uncontrolled and arbitrary powers on the Government to make the classification as it liked. This, however, is not the case here. We are, therefore, unable to agree with learned counsel that the observations of the Judges constituting the Bench in Anwar Ali Sarkars case (supra) can be called into aid for the purpose of striking down the Act in the present case." 44. If the above submissions are accepted it is not necessary for this Court to go into any further complicated submissions that have been made on behalf of the Appellant. With respect they do not arise in this case at all. This Court has no jurisdiction to entertain them and even if it has, the jurisdiction is not properly invoked. 45. The later part of this submission has been briefly dealt with earlier. To understand its full implication reference may be made to Article 137 of the Constitution of India dealing with the power of review. The Article reads thus : "137. Review of judgments or orders by the Supreme Court. Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it." A plain reading of the Article yields four conclusions : (i) The very express conferral of power of review is an acceptance of the theory that judgments cannot be reviewed unless the power is expressly conferred by Statute. See (1891) 1 Q B.D. 450 at 452. See (1891) 1 Q B.D. 450 at 452. (ii) The power of review is subject to the rules made under Article 145 (e) by the Supreme, Court. It is the Rule which is Supreme Court and not the Article, (iii) The principle of finality on which the Article proceeds applies to both judgments and orders made by the Supreme Court. There is no room for a further fanciful distinction between judgments and orders on one side and directions on the other as was faintly suggested during the course of the arguments, (iv) The maxim "Expressio Unius Est Exclusio Alterius" precludes any power of review outside Article 137, at any rate in respect of such submissions as could easily have been made and entertained in the review jurisdiction created by Order 40 of the Rules of this Honble Court. It is well known that one cannot resort to inherent power when there is a express power of the same kind and character. As pointed out above the existence of the review power was pointed out to the accused by the High Court as well as the Supreme Court if it was not already known to the accused and his legal advisors. Failure to avail of that jurisdiction cannot create any new jurisdiction outside the existing procedures which were never invoked and which have not been properly invoked till today. 46. The Privy Council decision in Issacs v. Robertson, (1984) 3 All ER 140, does not assist the case of the Appellant. In express terms Lord Diplock rejects the argument that any orders of a superior court of unlimited jurisdiction can ever be void in the sense that they can be ignored with impunity. Their Lordships then proceeded to indicate that those erroneous dicta which did recognise that some judicial orders could be theoretically void did not refer to courts of unlimited jurisdiction. However, their Lordships noticed that those erroneous dicta did support the proposition that in some cases a person may be entitled to apply to have some of the orders set aside Ex Debito Justicia in the exercise of inherent jurisdiction of the Court without his needing to have recourse to rules expressly providing for review of irregular orders. However, their Lordships noticed that those erroneous dicta did support the proposition that in some cases a person may be entitled to apply to have some of the orders set aside Ex Debito Justicia in the exercise of inherent jurisdiction of the Court without his needing to have recourse to rules expressly providing for review of irregular orders. This Obiter dictum of the Privy Council has nothing to do with a situation where an Article of the fundamental law like Article 137 of the Indian Constitution creates a limited review jurisdiction and makes it subject to the rules framed by the Court. These dicta do not exist in Indian cases much less post Constitutional Indian cases. It is quite possible that in some Commonwealth Jurisdictions there maybe no express provision for limited review or their concept of inherent power might be different than ours. In any event that some orders could be recalled Ex Debito Justicia is itself a principle which proceeds on the theory of nullity. It is now settled by this very Privy Council judgment that the doctrine has no application to judgments and orders of courts of unlimited jurisdictions. It can certainly have no application to the court of the last resort like the Supreme Court of India. It is interesting to recall that the judgment of the Privy Council has been delivered by Lord Diplock. Another Judge who sat in the Privy Council with him was Lord Keith of Kinkel. Both these Law Lords were parties to the House of Lords judgment in Re Racals case (1980) 2 All ER 634. At page 639-640 Lord Diplock held : "The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to construe the words of the statute by which the question submitted to his decision was defined. There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. Lord Scarman refused to extend the Anisminic principle to superior courts by the felicitous statement that this amounts to "comparison of incomparables." 47. There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. Lord Scarman refused to extend the Anisminic principle to superior courts by the felicitous statement that this amounts to "comparison of incomparables." 47. It was argued on behalf of the Appellant that our Supreme Court has applied the Anisminic principle to judicial orders. Reliance was placed on some cases to which a brief reference may now be made. Nawabkhan Abbaskhans case, (1974) 3 SCR 427 , dealt with an extern-ment order made by a Police Commissioner. The case, therefore, is not relevant. M.L. Sethi v. R.P. Kapur, (1973) 1 SCR 697 , contains a reference to the Anisminic cas but it is only by way of an academic discussion by the learned Judges without in any sense being the ratio of the case. The High Court had set aside the decision of the Civil Judge, Saharanpur in exercise of its revisional powers under Section 115 of the C.P.C. and the Supreme Court set aside the order of the High Court after coming to the conclusion that the Civil Judge had acted within jurisdiction and neither illegally nor irregularly. No occasion therefore arose for applying the Anisminic principle. In any event the Civil Judge of Saharanpur is not a court of unlimited jurisdiction. At page 707 referring to the Anisminic case the court observed : "The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error." After that the Court profounded a number of theoretical conondrums without resolving any. It finally deplored that there is no yard stick to determine the magnitude of the error other than the opinion of the Court. In fact this last observation seems to suggest the Court s disapproval of the Anisminic principle. 48. It seems that in this country the traditional concept of jurisdiction still remains viz. if there is entitlement to enter upon an enquiry any subsequent error is regarded as error within jurisdiction. Even if this concept is modified qua Tribunals and inferior Courts it remains applicable to superior Courts particularly the Supreme Court. The Constitution Bench of the Supreme Court was entitled to make consequential orders after it set aside the discharge order passed by the Special Judge. Even if this concept is modified qua Tribunals and inferior Courts it remains applicable to superior Courts particularly the Supreme Court. The Constitution Bench of the Supreme Court was entitled to make consequential orders after it set aside the discharge order passed by the Special Judge. Even if it transferred the case to a court not competent to try it it would still be an error within jurisdiction. 49. A reference was made to Premchand Gargs case (1963) Suppl. (1) SCR 885. Now this case has been explained in Naresh Mirajkars case, (1966) 3 SCR 744 . The last mentioned case precludes the kind of arguments which have been urged on behalf of the Appellant. The majority of the Court came to the conclusion that a judicial decision adjudicates upon the existence of the fundamental right and the adjudication itself cannot be nullified on the ground that it conflicts with the very fundamental right which it negates. Of course, a particular judicial decision may be wrong and may be set aside either by a superior court in the very same matter or as a precedent in some different case when it might be departed from in accordance with the well known principles of review of precedents. Referring to Premchand Gargs case the Court said that the case could not be pressed into service in support of the proposition that a judicial order of the Supreme Court was subject to the writ jurisdiction of the Supreme Court itself. The Court had invalidated a rule made in its non judicial capacity. 50. Now this judgment also conclusively supports the submission made in the earlier paragraph about Article 137 being the only available remedy. At page 767 the Court pointed out that whenever orders passed have been reviewed, that has taken place under Article 137 and not under Article 32. The Court also put its imprimatur on the concession made by Mr. Setalvad that " If a Court of competent jurisdiction makes an order in a proceeding before it and the order is inter-parties its validity cannot be challenged by invoking the jurisdiction of this Court under Article 32 though the said order may affect the aggrieved party's fundamental rights". In fact the Court went further and held that even if the order affects fundamental rights of strangers he cannot move under Article 32 but only under Article 136 of the Constitution. 51. In fact the Court went further and held that even if the order affects fundamental rights of strangers he cannot move under Article 32 but only under Article 136 of the Constitution. 51. This Court further approved of the principle of res-judicata being applied to petitions under Article 32 of the Constitution. Res-Judicata is based on high public policy and is not a mere technical rule of procedure. 52. It is not open to this Bench to review Mirajkars case. So long as that case stands orders of a Court can only be challenged by appeal, revision or review but not by collateral proceedings and the doctrine of res-judicata is clearly applicable. 53. After Mirajkars case the principle stated in Mathura Prasad v. Dossibai, (1970) 3 SCR p. 830, cannot stand in the wide wmrds in which it has been formulated. The correct proposition is not that decisions on fundamental rights can never be res-judicata. They clearly can be, as held by Mirajkar and earlier cases which it approves and affirms. However, the actual decision in Mathura Prassad case is unexceptionable. At page 835 the Court itself referred to Broken Hill Proprietary Company Ltd. v. Municipal Council of Broken Hill, (1926) AC 94, which lays down the principle : "In a case relating to levy of tax a decision valuing property or determining liability to tax in a different taxable period or event is binding only in that period or event, and is not binding in the subsequent years, and therefore the rule of res judicata has no application." 54. If in a previous rent suit the Court held that it had no jurisdiction, in a subsequent rent suit for a different period if the law has been changed that law will have to be applied. In fact the Court laid down the correct rule at page 833 : "A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different." 55. Questions of pure legal construction even if erroneously decided affect only the cause of action in hand. It is true that the judgment contains some inaccurate expressions which are clearly contradictory. Questions of pure legal construction even if erroneously decided affect only the cause of action in hand. It is true that the judgment contains some inaccurate expressions which are clearly contradictory. The decision, however, is irrelevant for the simple reason that the view taken by the Constitution Bench on the 16th of February, 1984, has not been altered either by statutory amendment or by a binding precedent coming into existence thereafter. Even if that was the situation it will not affect the present proceedings between the parties. 56. The Appellants submissions res judicata are not only directly in the teeth of Mirajkars case as pointed out above, but specifically in the teeth of authorities which have recognised the application of res judicata to criminal proceedings. 57. In the State of Orissa v. Ram Chander Agarwala, (1979) 1 SCR 1114 , on a reference made by the Sessions Judge the High Court of Orissa enhanced the sentence of the accused from fine to imprisonment. The accused then approached the Court in its inherent jurisdiction to recall its previous judgment on the ground that the notice issued to them was not adequate. The Supreme Court on an appeal by the State of Orissa came to the conclusion that the High Court had no power to review its own judgment on the ground on which it had actually done or on any other ground whatsoever. Now the Supreme Court therefore, accepted the proposition that even in an order in which there is no proper hearing cannot be recalled or reviewed in the exercise of any inherent power. Clearly this principle must apply to the Supreme Court. More so, in view of Article 137. 58. Another instructive case is State of Rajasthan v. Gurucharandas Chadha, (1980) 1 SCC 250 . In that case the High Court first dismissed a revisional application and sustained the order of the Special Judge framing charges. Thereafter the Supreme Court declared the law about the use of certain statements which the Special Judge had used. The Special Judge was requested to quash the charges but he did not. The second revisional application was filed in the High Court which allowed the same. The Supreme Court held that the second judgment in revision was clearly not maintainable as it amounted to a review of the previous judgment. The Special Judge was requested to quash the charges but he did not. The second revisional application was filed in the High Court which allowed the same. The Supreme Court held that the second judgment in revision was clearly not maintainable as it amounted to a review of the previous judgment. It is interesting that the Supreme Court inspite of this refused to set aside the second judgment stating "the order of the High Court may be wrong or even without jurisdiction but there can be no doubt that it had passed a correct and just order which is in consonance with the decision of this Court and is calculated to promote the ends of justice. ' There is no doubt at all that the order of the Constitution Bench in this case is just and promotes justice. There is no reason why a trial should be interfered with at this stage when doubtless 90% of it is over and the accused has a full right of appeal under Section 374 of the Code. 59. The view of the Indian Supreme Court that even jurisdictional issue become res-judicata is fully endorsed by the Supreme Court of the United States. See Davis Administrative Law, Article 18.01 and 18.07 at page 359 and 366 (Extracts supplied already). See also the following decision of the U.S. Supreme Court: 305 U.S. 195 308 U.S. 371 310 U.S. 381 311 U.S. 494 60. The Appellant has been continuously harping upon fundamental rights under Articles 14 and 21. Nothing has been arbitrarily done and the accused has not been discriminated against. He is being dealt with by the procedure prescribed by the Code of Criminal Procedure read with the Criminal Law Amendment Act. His trial before the High Court is in accordance with the directions of the highest judicial authority. That orders of this Hon’ble Court bind the parties unless reviewed and set aside under Article 137 is part of the procedure established by law. It is monstrous to suggest that the trial by a Judge of a High Court in accordance with the lawful order of the Supreme Court is not in accordance with procedure established by law. Even res-judicata is part of procedure established by law. So is the principle of finality of judgments. It is monstrous to suggest that the trial by a Judge of a High Court in accordance with the lawful order of the Supreme Court is not in accordance with procedure established by law. Even res-judicata is part of procedure established by law. So is the principle of finality of judgments. So also is the Rule that no one can play hide and seek with judicial process and abuse the Courts process. 61. In substance what the accused is inviting 7 Judges to do is to sit in appeal over the decision of 5 Judges at a late stage of the case. This cannot be done. A precedent of this kind will cut asunder the institutional Integrity and unity of this Court. It will give rise to endless manipulations by litigants who will keep their legal weapons concealed until Judges more hospitable to their pleas can be discovered. The whole judicial process will be brought into contempt and public ridicule. This sacrifice is not worth while for bringing about the result that an influential politician should be tried by an inferior criminal court selected by a sympathetic Government of the party to which he once belonged and which he is now feverishly trying to get into. 62. The last feature of this case which deserves mention is that primarily this Court is dealing with an appeal from the order of the trial Court refusing to join some alleged conspirators as co-accused with him in the present trial. That plea itself is mala fide and only intended to circumvent the charges which have been framed against the accused in consequence of the judgment of a Bench of this Hon’ble Court consisting of the then Chief Justice and Mr. Justice Ranganath Mishra. That judgment was delivered on 17-4-1986 and reported in (1986) 2 SCC p. 716. The prosecution is entitled not to prosecute some conspirators if it needs their evidence to convict a main conspirator. This is the settled practice in England. See Archbold on Criminal Law, 35th Edition - Extract annexed hereto marked as Annexure "B"). See also the judgment of the Supreme Court in (1968) 2 S.C.R. 624 . This judgment which has been relied upon by the trial Court is conclusive of the matter. The trial Court has also referred to other judgments in Paragrah 14 of the order at page 22 of Vol. See also the judgment of the Supreme Court in (1968) 2 S.C.R. 624 . This judgment which has been relied upon by the trial Court is conclusive of the matter. The trial Court has also referred to other judgments in Paragrah 14 of the order at page 22 of Vol. I and in subsequent paragraphs and pages. Those judgments are totally conclusive. A separate trial of each accused is the Rule. The joinder provisions are only enabling. No accused has the right to insist that some others should be prosecuted along with him in the same trial. (1967) 2 S.C.R. 423 , a judgment cited by him was cited to the Court in the Choradias case (1968) 2 SCR 624 . The 1967 judgment has nothing to do with a joint trial. It only deals with the duty of the court to find the real culprits and bring them to book if the evidence which has escaped the attention of the prosecution authority so warrants. It has nothing to do with a situation where evidence of one accomplice is necessary to convict the other.