Case Analysis: A.R. Antulay v. R.S. Nayak

CitationAIR 1988 SC 1531
                Judges/BenchSabyasachi Mukherjee, G.L. Oza, M.N. Venkatachaliah, Ranganath Misra, JJ., B.C. Ray, S. Natarajan, S. Ranganathan
  Court Supreme Court of India
  PetitionerA.R Antulay
         Respondent R.S Nayak
  Date of the    judgment 29th April 1988
        Referencence The Constitution of India, The Indian Penal Code, Criminal Amendment Act 1963, Criminal Procedure Code 1973 & Criminal Law Amendment Act 1952
              Legislation & Rules 1. Sections 6 & 7- offences Criminal Law (Amendment) 1952
2. Sections 374, 406 & 407 Criminal Procedure Code, 1973
3. Articles 13, 14, 21, 32, 134, 136, 139, 141, 142 of the Constitution of India


This is a case between a Chief Minister whose fundamental right has been violated, and a person with political affiliation, where the Supreme court gave the landmark judgment stating that the directions given by the court breached Section 7(1) of the Criminal Law (Amendment) Act, 1952 and was violative of Fundamental Rights of the appellant under Article 14 and 21 of the constitution.

Background of the case

Before the landmark judgment of A.R Antulay v. R.S Nayak[i], the court did not have the awareness on the nature of the jurisdiction of the Special court and gave directions. But after the judgment in 1988, it was specified that the Supreme Court cannot transfer corruption case to a High court judge. Later, in 2014 in Sahara’s case[ii], Supreme Court found that Antalya’s case to be an irrelevant precedent for that case and the 1988 judgment should be used as a precedent, confined to the facts and circumstance of the cases.


  • The appellant was the Chief Minister of Maharashtra from June 1980. On 1st September 1981, a person from Bharatiya Janata Party applied to the Governor of the state under Section 197 of the Criminal Procedure Code of, 1973 and Section 6 of the Prevention of Corruption Act, 1947 for the sanction to bring the suit against the appellant. Subsequently, the respondent filed a complaint in the Additional Metropolitan Magistrate, Bombay opposing the appellant and others for offences under Section 161,165 and also 384 and 420 read with Sections 109 and 120 B of the Indian Penal Code and Section 5 of the Prevention of the Corruption Act. The Magistrate refused to take the judicial notice for the offences without the sanction for prosecution. After this, a revision was filed in the High Court of Bombay. Thereafter the appellant on 12th January 1982 resigned the position of Chief Minister with respect to the judgment given by the Bombay High Court.
  • Then in July 1982 the Governor Sanctioned 3 subject out of five items and refused to sanction all other items. Then a fresh complaint was lodged before the Special judge with many more allegations including the allegation rejected by the Governor. The Special Judge, Shri P.S. Bhutta issued processed to the appellant without depending on the sanction order gave by the Governor. On 28th October 1982, Shri P.S. Bhutta rejected the appellant’s objection regarding the jurisdiction and specified 3 Special Judges of that area to try such cases. The State Government appointed R.B.sule as a Special Judge. The Special judge discharged the appellant stating that a member of the Legislative Assembly is a Public Servant and there was no valid sanction to bring legal proceedings against him.
  • On 16th February 1984, an appeal was filed under Article 136 and the constitution bench of the Supreme Court held that the member of the legislative assembly is not a public servant and revoked the order of the Special judge. Instead of returning the case to a Special judge for disposal in accordance with the law, the Supreme Court suo moto withdrew the special case from the court of a Special judge and the transferred to the Bombay high court.


  1. Whether the directions given by the court in February 1984, breach Section 7(1) of the act of 1952?
  2. Whether the decision is violative of Articles 14 and 21 of the Constitution?

Contentions of the parties

Arguments on behalf of the appellant

  • It was argued that the appellant was treated differently without giving him the opportunity for any pleadings or arguments to submit before the court of law which was violative of his Fundamental Right under Article 14 of the constitution.
  • It was further argued that the appellant’s Fundamental Right under Article 21 of the Constitution which is a right to trial by a special judge under
  • Section 7(1) of the Criminal Law Amendment Act, 1952.
  • It was argued that the Fundamentals of the administration of justice i.e., no man should suffer because of court, no man should suffer a wrong by the technical procedure of irregularity was violated.
  • It was further contended that the appellant has lost two major Rights which were the right of revision to the High Court under Section 9 Criminal Law Amendment Act and the right to move the Supreme Court under Article 136 of the constitution.

Arguments on behalf of Respondent

  • It was contended that the arguments for the withdrawal of the case from Special Judge under the Criminal Law Amendment Act by the High Court under Section 407 of the Criminal Procedure Code was possible in appropriate situations
  • It was argued that the transfer of the case was issued without giving an opportunity for the appellant to present his arguments or his pleadings is not acceptable. The appellant before the order was signed or after the directions were given could have submitted his allegations through his counsel. Thus it is not illegal or improper and the appellant is the one who did not use the opportunity.
  • It was contended that the superior court has jurisdiction to determine its jurisdiction. The superior court cannot be made liable for such allegations unless it has acted coram non judice.

Related Provisions

  • Indian Penal Code Section 161 and 165- Prevention of Corruption Act which states that the public servant should not take remuneration more than the government provides or obtain any valuable thing without consideration becomes a Cognizable Non-bailable offence.
  • Constitution of India Article 13, 14 21, 31- violates the Fundamental right to be treated equally in the court of law, Right to trial by a Special Judge under Section 7(1) of the Criminal Law (Amendment) Act, 1952.
  • Criminal Law (Amendment) Act, 1952 Section 6 and 7- the State Government has the power to appoint as many Special Judges as required and for all offences specified under sub-section of Section 6 can make the  Special Judge liable to try such cases.
  • Criminal Procedure Code Section 374,406,407- any person convicted on a trial has a right to appeal to the Supreme Court, Supreme Court and High court has the power to transfer the case under certain circumstances.



  • The judgment, in this case, was by a seven-judge bench in the Supreme Court. The judgment was given in the ration of 4:3 favoring the appellant. The court stated that the transfer of criminal cases and the Supreme Court to transfer cases and appeals are given under Section 406 of the Criminal Procedure Code. The law provides that the court may direct any particular case or appeal from one High court to another High court or from a subordinate Criminal court to a High court or a subordinate Criminal court to one High court to another Criminal court of equal or upper-level jurisdiction to another High court. Similarly, Section 407 of the Criminal Procedure Code deals with the power of the High court to transfer cases.
  • Section 6 of the Criminal Law (Amendment) Act, 1952 allows the State Government to appoint as many as Special Judges needed for a particular area for a specified offence. Section 7 of the Criminal Law (Amendment)Act, 1952 emphasizes on the triable by Special Judges. The issue here is whether the transfer made by the court is valid or not. Section 7(1) of the Criminal Law (Amendment) Act, 1952 provides a condition for the trial of offenders under Section 6(1) of the Criminal Law (Amendment) Act, 1952. Thus, the offences under Section 6(1) of the Act are punishable under the Indian Penal Code and Prevention of Corruption Act, 1947. Therefore the order of the court transfer cases to the high court was not permitted by law. The Supreme Court through its directions cannot advise the High Court to take cases that are not in its jurisdictions.
  • In direct, the Supreme Court clearly does not have jurisdiction to transfer cases to itself. Only the parliament by law has the power to create or increase the jurisdiction and no other Court superior or inferior has that power. In this case, the appellant has been treated differently from other offenders. The appellant has the right not to be separated to use the special court for his purpose all these are included in Article 14 of the constitution – Right to Equality. Further, the appellant has the right under Article 21 of the Constitution to take a trial by a Special Judge under Section 7(1) of the Criminal Law (Amendment) Act, 1952 which is established by law and the appellant has the right not to suffer due to any order passed by the Court in violation of natural justice. Section 374 of the Criminal Procedure Code gives a right to appeal.
  • A specific clause of a specific regulation is given for trial by a special judge alone and transfer of such cases can be done by once a judge to another special judge.  The High Court does not have the power to transfer such cases under Section 6 of the Criminal Law (Amendment) Act, 1952. Thus it is very clear that the provision under Section 7(2) Criminal Law (Amendment) Act, 1952, and Article 14 and 21 of the constitution is been violated and legally wrong due to the directions given by the court.


Any person can claim his or her remedy when his or her right has been violated.  Any direction or mistake made by the court should not affect the common man of the country. As everybody is equal before the law, everybody should be treated equally before the law. Any decision taken by the court should be for the good. It must ensure that neither of the parties should be biased due to some action or omission made by the court. The Supreme Court also highlighted “Finality is a good thing, but justice is better”. In every case, justice should be rendered than giving a decision.


[i]   A.R Antulay v. R.S Nayak, AIR 1988 SC 1531

[ii]  Subrata Roy Sahara v. Union of India, 2014 8 SCC 470

[iii] Kailash Nath  v. the State of U.P,AIR 1957  (SC) 790

[iv] Sastri Yagnapurushadji and others v. Muldas Bhudardas Vaishya and another, [1966]3 S.C.R.242

[v]  Gurcharan Das Chadha v.  the State of Rajasthan, [1966] 2 S.C.R. 678

[vi]  Kiran Singh and others v.  Chaman  Paswan  &  Others, [1955] 1 SCR 117

[vii]  Murtaza v. Yasin, AIR 191 PC 857
[viii] Kiran Singh and others v.  Chaman  Paswan  &  Others,    [1955] 1 SCR 117
[ix] Romesh Chandra Arora v. The State, [1960] 1 SCR 924

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