Tamil Nadu Chief Minister Jayalalithaa and the other accused in the disproportionate assets case on Saturday made a plea to the Special Court hearing the case, to refer to the Karnataka High Court their petitions challenging the process of appointment of the judge to the Special Court.
In their petitions, the accused said that as they had raised the question about the process of appointment of B.M. Mallikarjunaiah, the present judge of the 36th Additional City Civil and Sessions Court and Special Court for disproportionate assets case against Ms. Jayalalithaa and others, he would not have the jurisdiction to decide on an issue pertaining to his own appointment.
Hence they sought transfer of the petitions to the High Court under Section 395 (2) of the Code of Criminal Procedure. It was the contention of the accused that appointment of Mr. Mallikarjunaiah made in 2009 was without issuing a gazette notification as prescribed in the Section 3 (1) of the Prevention of Corruption Act, 1988, unlike in the case of appointment of the first judge to this Special Court in December 2003.
Further, their argument was that a judge to the Special Court cannot be appointed by way of routine transfer of judicial officers by the High Court.
Instead, the State or Union governments were authorised to appoint Special Judges under Section 3(1) of the Act by way of gazette notifications.
Meanwhile, in its objection to the plea of the accused over the process of the appointment of the judge, the prosecution contended: “It is settled law that appointment of a Special Judge under Section 3 of the Act need not be by name only. It could only by designation and it is the procedure followed in the State and other States.
“Generally Special Judge is designated with reference to the office he holds. The total effect of the notification issued in December 2003 is presiding officer [judge] posted to the 36th Additional City Civil and Sessions Court is a Special Judge within the meaning of the Act. “The notification states that the very court is established to try the particular [disproportionate case against Ms. Jayalalithaa and others]… case and hence the presiding officer [judge] of that court undoubtedly assumes the post of a Special Judge.”
The prosecution has also described the challenge to the process of appointment raised three years after the appointment as “frivolous, speculative and vexatious, and a clear case of roving enquiry only to protract the proceedings.”
The arguments on behalf of the accused on these issues, which commenced on Friday, was completed on Saturday, and the case adjourned till July 10 to hear the arguments of the Special Public Prosecutor.