Hon'ble Saurabh Lavania,J.
Heard Sri Rohit Tripathi, learned counsel for the petitioners, Sri Gaurav Mehrotra, learned counsel for opposite party no.1 and Surya Bhan Pandey, learned Assistant Solicitor General of India for opposite parties no.2 and 3.
Learned counsel for the petitioners submits that petitioners are proprietors of a business firms,namely, Siddhi Traders,M/S Guru Kripa Enterprises and Saumya Prakashan. In connection with irregularities in the implementation of the National Rural Health Mission( NRHM), petitioners were named in three FIRs, namely, F.I.R.no.3A of 2012 under section 120-B I.P.C. read with sections 409,420,468 and 471 I.P.C. and sections 13(2) read with 13(1) (d) of the Prevention of Corruption Act,1988, F.I.R. No.2A of 2012, under Sections 409,420,468 & 471 I.P.C. and section 13(2) read with 13(1) (d) of the Prevention of Corruption Act, 1988 and F.I.R. No. E0003 of 2012 under sections 409,420,468 & 471 I.P.C. and Sections 13(2) read with 13(1) (d) of Prevention of Corruption Act,1988.
It is further submitted by learned counsel for the petitioners that in due course charge-sheet was submitted by CBI before Special Judge (CBI) in the aforesaid cases. The F.I.R. in RC No.2A of 2012 was registered as Case no.03 of 2012, F.I.R. in RC No.3A of 2012 was registered as case no.04 of 2013 and the F.I.R. No.E0003 of 2012 was registered as Case no.04 of 2012. The petitioners being named in the charge-sheet were summoned by the Special Court (CBI) at Ghazibad. The petitioners put in appearance and were enlarged on bail.
It is also submitted by learned counsel for the petitioners that Enforcement Directorate, on the basis of the FIRs, registered three PMLA cases i.e. case no. 25 of 2018 (Directorate of Enforcement Vs. Saurabh Jain and others), case no.26 of 2018 (Directorate of Enforcement Vs. Saurabh Jain and others) and case no.13 of 2019 (State Vs. Babu Singh Kushwaha and others). The PMLA cases are pending in the court of Sessions Judge, Lucknow. The cases under the I.P.C. and Prevention of Corruption Act and the PMLA cases are pending and are proceeding simultaneously at two different places. All the PMLA cases have been registered on the basis of scheduled offences which are being tried before the Special Court (CBI) Ghaziabad.
Learned counsel for the petitioners submits that all the cases against the petitioners are pending at Lucknow and Ghaziabad, so in view of the provisions of section 44 (1) (a) and 44 (1)(c) of the Prevention of Money-Laundering Act,2002 ( herein after referred to as the 'Act,2002'), which is on reproduction reads as under, the cases pending against the petitioners be clubbed and be heard and decided together "44. Offence triable by Special Courts: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) An offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed.
Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence, or
(b)----------
(c) If the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money laundering under sub-clause(b), it shall, on an application by the authority authorized to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed.
(d) -----------------"
In consonance with Section 220 sub clause (3) of the Code of Criminal Procedure, 1973 reads as under:-
"220. Trial for more than one offence:
(1)------
(2)------------
(3) If the act alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offence are defined or published, the person accused of them may be charged with, and tried at one trial for, each of such offences."
In view of the facts of the present case, as narrated in brief hereinabove and mentioned in the writ petition, the petitioners have approached this Court by filing the present writ petition with the prayer to the effect that a direction may be issued that all the cases which are pending against them at Lucknow and Ghaziabad shall be clubbed together and may be heard at one particular places either at Lucknow or at Ghaziabad. The main relief sought in the writ petition is quoted below for ready reference.
"(i) To issue a writ, order or direction of or in the nature of mandamus commanding the opposite parties to issue appropriate orders for joint trial of special case no.03 of 2012,pending in the court of Special Judge (CBI), Ghaziabad with PMLA case No.25 of 2018 pending in the court of Session Judge, Lucknow; special case no. 04 of 2013 pending in the court of Special Judge(CBI) Ghazibad with PMLA case no.26 of 2018, pending in the court of Session Judge, Lucknow and special case No.04 of 2012, pending in the Court of Special Judge (CBI), Ghaziabad with PMLA Case No.13 of 2019 pending in the court of Session Judge, Lucknow or;
(ii) to transfer/ consolidate the above noted cases in exercise of supervisory jurisdiction of this Hon'ble Court."
Learned counsel for the respondents, while opposing the prayer of the learned counsel for the petitioners, submits that for consolidation of aforesaid cases which are being tried and adjudicated against the petitioners at Lucknow and Ghaziabad, applications were moved by the Directorate of Enforcement for transfer of cases relating to scheduled offence to Lucknow, however the Special Court (CBI) rejected the applications by means of orders dated 7.3.2019 and 8.3.2019.
It is further submitted by learned counsel for the respondents that once the prayer for transferring the cases has been rejected by competent authority/ Special Judge (CBI) then in view of the said facts the prayer as made by petitioners cannot be granted and if the petitioners have any grievance, they have a right to file an appeal or revision against the orders dated 7.3.2019 and 8.3.2019 passed by Special Court (CBI) in view of the provisions as provided under sections 399 and 401 Cr.P.C., as such the present writ petition filed by the petitioners is not maintainable and the same is liable to be dismissed.
We have heard learned counsel for the parties and gone through the record.
Needless to mention herein that Act,2002 is a special Act, which is enacted for particular type of offence mentioned therein.
So far as Section 44 of the Act, 2002 on which reliance has been placed by learned counsel for the petitioners for consolidations of aforesaid cases pending against the petitioners at Lucknow and Ghaziabad is concerned, petitioners cannot derive any benefit from the said section because from the bare reading of the said section the position which emerge out is to the effect that it does not give power to consolidate the cases registered against the petitioners, which are proceeding and trial is in process at different places rather section 44 of the Act, 2002 provides that where the offence has been committed, the same shall be triable by the Special Court of the area.
It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. An opt quoted adage "one who holds the procedural sword must perish with the sword". A century ago, in Taylor V. Taylor, (1875)} 1 Ch D 426 Jassell M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time It was applied by the Privy Council, in Nazir Ahmed V. Emperor, 63 Ind App 372 = (AIR 1936 PC 253 (2)} and later the Hon'ble Apex Court in several cases viz. Shiv Bahadur Singh v. State of V.P., (1954) SCR 1098- (AIR 1954 SC 322= 1954 Cri LJ 910): Deep Chand v. State of Rajasthan. (1962) SCR 662= (AIR 1961 SC 1527= 1961 (2) Cri LJ 705) approved the same principle of law. A Constitution Bench of the Hon'ble Apex Court in Commissioner of Income Tax, Mumbai v. Anjum M. H. Ghaswala and others, AIR 2001 SC 3868 reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the same itself.
In another case in Subhash Chandra Gupta v. State of U.P., 2012 (1) UPLBEC 166 the Division Bench of this Court after survey of law on this issue observed as under:
"It is well settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgement of the Apex Court in State of U.P. & another Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541."
It is also settled proposition of law that the duty of the court is to interpret the law and the court cannot legislate the law nor issue direction to enact the law. The function of the court is only to expound the law and not to legislate.
The supreme Court in Pravasi Bhalai Sangathan Vs. Union of India, AIR 2014 SC 1591: 2014 AIR SCW 1713: (2014) 3 SCALE 552 observed that the Court has persistently held that our Constitution clearly provides for separation of powers and the court merely applies the law that it gets from the legislature. Consequently, the Anglo-Saxon legal tradition has insisted that the Judges should only reflect the law regardless of the anticipated consequences, considerations of fairness or public policy and the judge is simply not authorised to legislate law. " If there is a law, judges can certainly enforce it, but Judges cannot create a law and seek to enforce it" The court cannot re-write, re-cast or re-frame the legislation for the very good reason that it has no power to legislate. The very power to legislate has not been conferred on the courts.
The Court has no competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of statutory provisions. In State of Punjab Vs. Renuka Singla, AIR 1994 SC 595: 1994 AIR SCW 330:(1994) 1 SCC 175,the Supreme Court observed as under:-
"We fail to appreciate as to how the High Court or Supreme Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations....."
Similarly, in Karnataka State Road Transport Corporation Vs. Ashrafulla Khan, AIR 2002 SC 629: 2002 AIR SCW 231: (2002) 2 SCC 560, Supreme Court held as under:-
"The High Court under Article 226 of the Constitution is required to enforce rule of law and not pass order or direction which is contrary to what has been injected by law."
It is settled legal proposition that neither the Court nor any tribunal has the competence to issue a direction contrary to law and to act in contravention of a statutory provision (Vide: Maharshi Dayanand University Vs. Surjeet Kaur, (2010) 11 SCC 159: 2010 AIR SCW 6001).
The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law.
Once the legislature under section 44 has not provided the power for consolidation of the cases triable at two different places, the court, in our view cannot direct the authorities to consolidate the case or by itself consolidate the cases triable at different places as the same would be in contravention to the statutory provision or it would amount to judicial legislation.
In view of above, the submission of learned counsel for the petitioners and the prayer sought by the petitioners in the writ petition for consolidating and transferring the cases which are pending at Lucknow and Ghazibad, arising out of the same cause of action based on section 44 of the Act read with section 220 Cr.P.C., has got no force.
In view of the above, the writ petition is dismissed.
.
(Saurabh Lavania,J.) (Anil Kumar,J.) Order Date :- 30.7.2019 dk/