CONSTITUTIONAL LAW PROJECT

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

1988 AIR 1531

Submitted to: Submitted By:

Prof. Rattan Singh Akash Chaudhary
122/19
BALLB(HONS.)
Section C

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 ACKNOWLEDGEMENT

In preparation of my assignment, I had to take the help and guidance

of some respected people, who deserve my deepest gratitude. As the
completion of this assignment gave me much pleasure, I would like to
show my gratitude to my teacher Dr. RATTAN SINGH for giving
me good guidelines for assignment through numerous consultations. I
would also like to expand my gratitude to all those who directly or
indirectly guided me in writing this assignment. Many people
especially my classmates have made valuable comment suggestions
on my paper which gave me an inspiration to improve the quality of
the assignment.

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 INDEX

TOPIC PAGE NO

1. CASE INTRODUCTION 4
2. FACTS OF THE CASE 5-6
3. ISSUES 6
4. ARGUEMENTS ADVANCED 6-9
5. JUDGEMENT 9-10
6. CRITICAL ANALYSIS 10

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Bench: K.N. Singh , P.B. Sawant, N.M. Kasliwal, B.P. Jeevan Reddy, G.N

Sections Involved: Article 21 and 142 Constitution of India, 1950

FACTS OF THE CASE

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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.
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 learned magistrate due to absence of
sanction refused to take cognizance.
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.
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.
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.
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

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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.
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.
An Special leave petition was filed by A.K. 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

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

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

III. Can those directions be recalled or set aside or annulled in those

proceedings and trial be proceeded according to CRPC?

ARGUMENTS ADVANCED

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Mr. P.P. Rao, counsel appearing for the petitioner ( A.R. Antulay)
Right to speedy trial flows from Article 21, as held by several decisions of this
Court;
To make the right to speedy trial meaningful, enforceable and effective, there
ought to be an outer limit beyond which continuance of the proceedings will be
violative of Article 21. This court has prescribed such an outer limit in the case
of children below the age of 16 years; a similar rule must also be evolved for
general application as has been done by the Full Bench of Patna High Court.
Section 468 of CrPC furnishes a guidance in the matter of drawing an outer line
beyond which criminal trials should not be allowed to go. Though Section 468
applies only to minor offences its principle must be extended to major offences
as well.
Having regard to prevailing circumstances, a delay of more than seven years
ought to be considered as unreasonable and unfair. The time taken by the
investigation should be counted towards this seven years. In any event, a
criminal proceeding, with alt its stages, should not be allowed to go beyond ten
years from the date of registration of crime. In the absence of an outer limit,
right to speedy trial becomes an illusion.
Even de hors Article 21, Courts in India have been holding that a trial ought not
to be allowed to go beyond a certain period. In many cases, this Court has
refused to direct re-trial or continuance of trial, where the proceedings have
been pending for a long time, even where it was satisfied that order of acquittal
was not sustainable in law. A re-trial ought to proceed with greater urgency.
The delay which may not vitiate in the case of a trial would yet vitiate a retrial.
In this case, though a period of about ten years has elapsed, the trial according
to law is yet to begin. Particularly, after the decision of the Seven-Judge Bench
of this Court in 1988, the complainant has been sleeping over the matter. He
took no steps whatsoever to go on with the trial. After a period of three years
and only when this writ petition was posted for hearing, did the complainant
wake up and re-start the proceedings. The accused-petitioner is being harassed
in this matter.
The respondent-complainant is pursuing the petitioner out of political
animosity. He belongs to B.J.P., whereas the petitioner belongs to Congress (I).
Since the respondent's party is not in a position to face the petitioner politically,
it is pursuing and persecuting him through court proceedings. In the recent
general elections the petitioner has been elected to Parliament. His political

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career and future prospects are being marred by this litigation which is nothing
but political vendetta.
In all the circumstances of the case, the Criminal Case against the petitioner
ought to be quashed and the petitioner be set free to pursue his vocation.
While not disputing the proposition that Right to speedy trial is implicit in
Article 21 of the Constitution, submitted that the conduct of the accused in this
case disentitles him to any relief. According to him, it was the duty of the High
Court of Bombay to have sent the record to the appropriate Special Judge
pursuant to the judgment of the Seven-Judge Bench in April, 1988.
The High Court took no such step. No notice was also received by the
complainant from the Special Court Ordinarily, he pointed out, when a case is
remanded from a higher court to the trial court, the latter issues notices to the
parties to appear before it on a date specified. In this case, however, no such
notices were issued. He also submitted that in view of Sri Sule ceasing to be the
Special Judge, the Government was bound to notify one of the Special Judges at
Bombay as the Judge competent to try this case; this was not done and,
therefore, no Special Judge was seized of the matter.
In such a situation the complainant could not be found fault with for not
proceeding with the trial. He submitted that until Sri More filed a writ petition
and the Bombay High Court gave a direction, the Government did not issue a
notification specifying the Special Judge for trying the said case.
He also brought to our notice that the Bombay High Court had, in the said writ
petition, asked the complainant whether he was willing to proceed with the
prosecution and that he had made it expressly clear that he was willing to
proceed with the case. He submitted that after the Special Judge was designated,
the complainant moved him and the proceedings have now commenced.
He also brings to our notice the fact that the complainant has filed an
application as far back as 31.5.1989 for treating the evidence recorded in the
High Court as the evidence before the Special Judge. In the circumstances, he
submitted, it cannot be said that the complainant was remiss in proceeding with
the prosecution or that he was sleeping over the matter.
He emphasised the conduct of the accused- petitioner in trying to delay and
protract the proceedings throughout, for which purpose he invited our attention
to certain passages in the decisions of this Court referred to hereinbefore. He
submitted that at no time had the complainant tried to prolong the matter and
that he has always been ready and anxious to go on with the matter. He opposed

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the idea of prescribing a general time limit for conducting criminal proceedings.
No counter-affidavit has been filed by the complainant in the writ petition.
The learned Counsel for the State of Maharashtra also did not dispute the
proposition that the right to speedy trial flows from Article 21, though he
submitted that there ought not to be any outer limit prescribed by this Court. He
submitted that the State was in no way responsible for the delay, if any, in
proceeding with the case. The counsel, however, submitted that after the
decision of Seven-Judge Bench of this Court, the complainant ought to have
moved either the High Court of Bombay or the Government for appropriate
directions or for designating the Special Judge as the case may be, and that his
inaction has remain unexplained.

JUDGEMENT

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.
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
Sarkar1 The court observed that following rights of the appellant have been
taken away by the impugned directions;
The right to be tried by a Special Judge in accordance with the procedure
established by law and enacted by Parliament.
The right of revision to the High Court under sec 9 of the Criminal Law
Amendment Act.
The right to move the Supreme Court under sec 136 thereafter by way of a
second appeal, if necessary.
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
1
AIR 1952 Cal 150

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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 Art. 21.
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.
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.
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.

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