A.R. ANTULAY V/S R.S NAYAK & ANR

Nunc pro tunc – “now for then”.

The maxim nunc-pro-tunc was held to mean that if owing to the delay in what the court should, otherwise, have done earlier but did later, a party suffers owing to events occurring in the interrugnum, the court has the power to remedy it. The area of operation of the maxim was, generally, held to be procedural. Errors in judicial findings, either of facts or law or operative decisions consciously arrived at as a part of the judicial-exercise cannot be interfered with by resort to this maxim.

A.R. ANTULAY V/S R.S NAYAK & ANR.

Section 21 of Criminal Procedure, 1973 and Article 21 and 142 Constitution of India, 1950

BRIEF FACTS:

1. A. R. Antulay became Chief Minister of the State of Maharashtra on 9th June 1980. On 1st September 1981, R. S. Naik a member of opposition applied to the Governor of the State under sec 197 of the Criminal Procedure Code, 1973 and sec 6 of the Prevention of Corruption Act, 1947 for sanction to prosecute the C.M.

2. On 11th of September, 1981, Naik filed a complaint before the Additional Metropolitan Magistrate, Bombay against the C.M. and other known and unknown persons for alleged offence under sections 161 and 165 of the Indian Penal Code and section 5 of the Act as also under sections 384 and 420 read with sections 109 and 120B of the Indian Penal Code and his character and integrity came under a cloud. But the magistrate due to absence of sanction refused to take cognizance.

3. The said order was appealed before the Bombay High Court, which held that sanction was necessary for the prosecution of the appellant and also an order in a writ petition all wired against A.R. Antulay which resulted in his resignation from the post of C.M. on 12th January, 1982. But continued as the member of legislative assembly.

4. On 28th of July, 1982, the Governor of Maharashtra granted sanction under section 197 of the Code and section 6 of the Act in respect of five items relating to three subjects only and refused sanction in respect of all other items.

5. Finally, On 9th August, 1982 a fresh case was instituted by R.S. Naik against A.R. Antulay before the learned Special Judge bringing in many more allegations including those for which sanction was refused by the Governor reasoning it that the person is seized to be a C.M.

6. The State Government on 15th of January, 1983 notified the appointment of Shri R.B. Sule as the Special Judge to try the offence.

PROCEDURAL HISTORY:

1. On 25th of July 1983, Shri R.B. Sule, Special Judge discharged A.R. Antulay holding that a member of the Legislative Assembly is a public servant and there was no valid sanction for prosecuting the appellant.

2. An appeal filed by complainant under Article 136, the Constitution Bench held that a member of the Legislative Assembly is not a public servant and set aside the order of Special Judge Sule. The court also ordered that the cases against A.R. Antulay and others be transferred to the High Court Bombay withdrawing from the special judge and request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court for holding the trial from day to day, for expeditious disposal in accordance with law.

3. A Special leave petition was filed by A.R. Antulay for S.C. Questioning the jurisdiction of the special judge to try the case in violating his Fundmental Right under Article 21 and 14 and provision of Criminal law. And also another SLP was filed against the order of special judge stating that the 79 charges against the Appellant need no sanction and a writ petition was filed questioning the validity of sec 197(1) CRPC.

ISSUE BEFORE THE COURT:

1. Whether the directions of this court in the last order were legally proper?

2. Whether the action and the trial proceedings pursuant to those directions, are legal and valid?

3. Can those directions be recalled or set aside or annulled in those proceedings and trial be proceeded according to CRPC?

RATIO OF THE COURT:

1. The jurisdiction to try a case could only be conferred by law enacted by the legislature and this Court could not confer jurisdiction if it does not exist in law. The SC held that the Apex Court were without jurisdiction and as such void. There was no jurisdiction or power to transfer a case from the Court of the Special Judge to any High Court.

2. The bench pointed that the directions of the Court were given per incuriam, that is to say without awareness of or advertence to the exclusive nature of the jurisdiction of the Special Court and without reference to the possibility of the violation of the fundamental rights in a case of this nature as observed by a seven Judges Bench decision in The State of West Bengal v. Anwar Ali Sarkar <1952>.

3. The court observed that following rights of the appellant have been taken away by the impugned directions;

4. The right to be tried by a Special Judge in accordance with the procedure established by law and enacted by Parliament.

5. The right of revision to the High Court under sec 9 of the Criminal Law Amendment Act.

6. The right of first appeal to the High Court under the same section.

7. The right to move the Supreme Court under sec 136 thereafter by way of a second appeal, if necessary.

8. The appellant has also a right not to be singled out for special treatment by a Special Court created for him alone. This right is implicit in the right to equality stated by the bench. Also he has also a right not to suffer any order passed behind his back by a Court in violation of the basic principles of natural justice, violating Article 21.

9. The court held that the learned Special Judge was clearly in error in holding that M.L.A. is a public servant within the meaning of the expression in Section 12(a) and further erred in holding that a sanction of the Legislative Assembly of Maharashtra or majority of the members was a condition precedent to taking cognizance of offences committed by the accused.

10. The Court infringed the Constitutional safeguards granted to a citizen or to an accused and injustice results therefrom. It is just and proper for the Court to rectify and recall that in justice, in the peculiar facts and circumstances of this case This case has caused us considerable anxiety. The appellant accused has held an important position in this country, being the Chief Minister of a premier State of the country. He has been charged with serious criminal offences. His trial must be in accordance with law and the procedure established by law would have to be in accordance with the 1952 Act. 

11. The apex court observed that the legal wrong that has been caused to the appellant should be remedied. Let that wrong be therefore remedied. Let right be done and in doing so let no more further injury be caused to public purpose

DECISION HELD BY COURT:

1. In this case the judgement was given by JUSTICE SABYASACHI MUKHARJEE that the appeal was Allowed by the majority among the 7 judges bench.

2. And all proceedings to this matter subsequent to the directions of this Court on 16th February, 1984 are set aside and quashed. The trial shall proceed in accordance with law, that is to say, under the Act of 1952.