Delhi High Court Dismisses Challenge To Notification Conferring Powers Of Special Courts Under Prevention Of Corruption Act To Officers Of DHJS

The Delhi High Court has dismissed a plea challenging the notification conferring powers of Presiding Officer of the Designated Court and Special Court constituted under the Prevention of Corruption Act, 1988, to each and every Officer of the Delhi Higher Judicial Service (DHJS) in pursuance of the transfer or posting orders made by the Chief Justice of the Delhi High Court.

The impugned notification dated September 15, 2010 issued by the Lieutenant Governor of Delhi conferred the said power to be exercisable by each of such officer of the DHJS with effect from the date of assumption of charge of the post of Presiding Officer or Judge of the Designated Court or Special Court.

A bench comprising of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla observed that it is entirely for the High Court, headed by the Chief Justice to decide on the aspect of transfer and posting of the Officers of the Judicial Service of the State.

"It is for the High Court to decide as to who should be posted, inter alia, to Courts dealing with cases under the Act and, consequently, who should be designated as a Special Judge to deal with cases under the Act. Of course, all such postings/ designations would have to comply with the requirements of Section 3(2) of the Act," the Bench observed.

It added "Thus, whenever the Chief Justice of the Delhi High Court transfers and posts a member of the Delhi Higher Judicial Service, who has been, or is, a Sessions Judge, Additional Sessions Judge, or Assistant Sessions Judge to preside over a Designated Court or Special Court – specially designated or created to deal with cases under the Act, by virtue of the impugned completely notification dated 15.09.2010, the Presiding Officer of such Designated or Special Court stands appointed under Section 3(1) of the Act."

It was submitted by the petitioner that there was no "appointment" made by the impugned Notification in terms of sec. 3(1) of the Act and that the "conferment" of powers cannot be equated with "appointment" as a special judge under the Act.

It was further submitted that the power is exercisable by the Central Government or the State Government by issuance of Notification in the Official Gazette. However, the purport of the impugned Notification was that it has been left to the Chief Justice of the Delhi High Court to confer the power of a Designated Court or Special Court, by resort to issuance of transfer or posting orders of the officers of the Delhi Higher Judicial Service.

This, according to the petitioner, was excessive delegation of the statutory functions which the Central Government or the State Government are obliged to discharge under sec. 3(1) of the Act, upon the Chief Justice of the Delhi High Court and was not permissible.

The Court found no merit in the submission put forth by the petitioner that sec. 3(1) of the Act uses the expression "Appoint" which cannot be equated to the conferment of powers of Presiding Officer of the Designated Court and Special Court constituted under the Act.

"The appointment of the Special Judge has to be from amongst those who are, or have been Session Judges/Additional Session Judges/ or Assistant Session Judges under the Code of Criminal Procedure. The appointment as a Special Judge in the Designated Courts/ Special Court, in respect of a sitting or former Session Judge, Additional Session Judge, or Assistant Session Judge can only mean the conferment of the power to act as a Special Judge under the Act," the Court said.

It added "The submission of the petitioner, if accepted, would destroy the independence of the judiciary, as the Central and State Governments would get the right to pick and choose the judicial officers – by name, who should man the Designated/ Special Courts."

Accordingly, the plea was dismissed.

Case Title: SUSHIL ARORA v. GOVERNMENT OF NCT OF DELHI AND ORS.

Citation: 2022 LiveLaw (Del) 363

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