KAMLESH KUMAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Petitioners have invoked writ jurisdiction of this Court under Article 226 of the Constitution of India assailing the Notification dated 17.05.2002, Memo No. 1-A/Court. Setup-103/2001-1111/J, whereby Court of Special Judge, C.B.I. (A.H.D.)/Additional Judicial Commissioner was authorised to try the cases under Foreign Exchange Management Act (FEMA). To understand the controversy, few facts are required to be narrated. A complaint case being FERA Case No. 02 of 2002 was filed initially in the Court of Chief Judicial Magistrate, Ranchi. Director of Enforcement vide letter dated 25th January 2002 requested the State Government to authorise the Special Courts of Ranchi hearing the fodder Scam cases to hear the cases under FERA Act also. State Government has sought opinion of this Court vide letter dated 2nd March 2002 as to whether Special Court hearing the Fodder Scam cases can be empowered to hear the cases under FERA/FEMA. Full Court, on 25.04.2002, has resolved that Court of Special Judge hearing A.H.D. Fodder Scam Scam cases be empowered to try the cases under the FERA/FEMA. Pursuant to the resolution passed by this Court, Registrar General of this Court vide letter dated 06.05.2002 conveyed resolution to the State Government with the request to issue notification to this effect immediately. Pursuant to the letter dated 06.05.2002, written by the Registrar General of this Court, conveying the decision of the Full Court, State Government has issued impugned notice dated 17.05.2002 authorising the Special Judge, C.B.I. hearing the Fodder Scam cases to try the cases under FEMA/FERA. Thereafter, complaint stood transferred from the Court of C.J.M. to the Special Judge, C.B.I. Learned Special Judge has taken cognizance vide order dated 31.05.2002. Order taking cognizance was challenged before this Court by one of the accused namely Vijay Kumar Malik in W.P. (Cr.) No. 208 of 2002, which was dismissed by this Court vide Judgment dated 18.12.2002 2003 1 JLJR 319 and present petitioners have also challenged the order dated 31.05.2002, whereby the Special Judge has taken cognizance on the complaint, in Criminal Misc. Petition No. 290 of 2003, Dr. K.M. Prasad & ors. Vs. Union of India. Learned Single Judge of this Court has dismissed the petition filed by the petitioners vide Judgment dated 6th May 2003 (Reported in 2003 (3) JCR 452). Judgments, upholding the cognizance order dated 31.05.2002 were not challenged before the Supreme Court and have attained finality. Thereafter, petitioners have approached this Court by way of present writ petition challenging the notification dated 17.05.2002 issued by the State Government on the ground that State Government has absolutely no jurisdiction to autharise Special Judge to try cases under FERA Act 1973.

(2.) I have heard learned counsel for the parties and carefully perused the records.

(3.) Mr. Anil Kumar, learned counsel for the petitioner has vehemently argued that cognizance on the Criminal Cases under FERA Act 1973 could be taken by the Competent Area Judicial Magistrate. He has further argued that there was no necessity to transfer the case, filed under FERA before C.J.M., to the Special Judge. Mr. Anil Kumar has further argued that there is no provision either in the Cr.P.C. or under FEMA or in the FERA Act authorising the State Government to confer jurisdiction to the Special Court to hear cases under the FERA/FEMA, therefore the notification is without jurisdiction. He has further argued that by transferring the criminal complaint to the Special Judge, right to appeal before Session Court has been taken away.