Nirmal
Singh Vs. State of Haryana [1996] INSC 969 (19 August 1996)
A.S.Anand,
S.B.Majmudar
ACT:
HEAD NOTE:
THE
19TH DAY OF AUGUST, 1996.
Present:
Hon'ble
Dr.Justice A.S.Anand Hon'ble Mr.Justice S.B.Majmudar V.R.Reddy, Additional
Solicitor General, Vikram Mahajan, Sushil Kumar, Sr.Advs. B.S.Mor, S.P. Lalar,
Ms. Kusum Singh, M.S. Dahiya, C.S. Ashri, Goodwill Indeevar, A.Meriarputham,
Ms. Aruna Math-ur, Arco Methotra and Balraj Dewan, Advs. with them for the
appearing parties
O R D
E R
The
following Order of the Court was delivered:
NIRMAL SINGH ETC. V. STATE OF HARYANA WITH CRIMINAL APPEAL
NOS. 874 OF 1996 (ARISING OUT OF SLP (CRL.) NO. 1742/1996) NAIR SINGH V. STATE
OF HARYANA CRIMINAL APPEAL NOS. 875 OF 1996 (ARISING OUT OF SLP (CRL.) NO.
1743/96 GULJAR SINGH V. STATE OF HARYANA
O R D
E R
Leave
granted.
We
have heard learned counsel for the parties.
The
investigation in connection with the murder case arising out of FIR No. 89
dated 16th July, 1994, was entrusted to the C.B.I. which
filed a challan against fourteen persons, including the appellants herein.
Appellant,
Nirmal Singh, was denied the concession of bail by the Trial Court, the High
Court and by this Court on various occasions. However, on a fresh bail petition
filed on his behalf on 9th
May, 1996, the learned
Sessions Judge, Ambala, granted interim bail to him on 11th May, 1996 till 20th May, 1996. This order was made when neither the District Attorney
representing the State nor the Public Prosecutor representing the C.B.I. were
present. The High Court on being moved by the C.B.I. against the order of grant
of interim bail on 14th May, 1994 stayed the operation of the order dated 11th
May, 1996. After appellant Nirmal Singh surrendered on 16th May, 1996, the High
Court vide its order dated 28th May, 1996 set aside the order dated 11.5.1996
granting interim bail to him and at the same time transferred the trial of the
case from the Court of Shri A.S. Garg, Sessions Judge, Ambala, to the Court of
Sessions Judge, Chandigarh. The case was at the stage of recording the
statements of the accused under Section 313 Cr.P.C.
On
10th July, 1996 we dismissed the special leave petition of appellant Nirmal
Singh against the cancellation of bail but issued notices to the respondents in
the matter of directions of the High Court transferring the sessions trial from
Ambala to Chandigarh.
Counters
have been filed on behalf of the C.B.I.
It is
not disputed that the learned Single Judge of the High Court transferred the
case from the Court of Shri A.S. Garg, Sessions Judge, Ambala, to the Court of
the Sessions Judge, Chandigarh, suo moto, without any application having been
made before him by any of the parties for the said purpose without hearing the
accused in the case. Indeed the learned Single Judge of the High Court had the
jurisdiction under Section 407 Cr.P.C. to make such an order suo moto, on its
own initiative, on being satisfied that a fair and impartial trial could not be
held in any criminal court subordinate to it but in fairness to the accused it
should have been done only after issuing notice to the accused and granting
them an opportunity to have their say in the matter. That was not done. Fair
play in action has been respected in its breach.
The
accused (appellant Naib Singh) has, in the Memorandum of his Appeal in this
court challenging the directions of the High Court stated that the order of
transfer had been made behind his back and without any notice to him or
affording him any opportunity to oppose it.
It is
also stated that while ordering the transfer the learned Single Judge of the
High Court did not take into consideration the financial constraints and the
inconvenience which would be caused to the accused, who may have to engage new
counsel at Chandigarh. The objections raised by the other accused in their
appeals are of a similar nature. These objections cannot be said to be devoid
of force or merits. Even if the learned Single Judge was of the opinion that
the case should be transferred in the interest of justice, it should not have
been done without notice to the parties. This we say on the plainest
consideration of fair play and justice. We are, therefore, of the opinion that
the suo moto directions given by the learned Single Judges for transfer of the
case to the Court of Sessions Judge, Chandigarh cannot be sustained more
particularly in view of the difficulties expressed by some of the appellants to
face the trial at Chandigarh, where they may have to engage other counsel at
fresh fee etc.
However,
with a view to ensure a fair trial of the case, we consider it appropriate,
while setting aside the directions dated 28.5.1996 to direct that the case
arising out of FIR No. 89 dated 16th July, 1994 shall be tried by the senior
most Additional Sessions Judge, Ambala, and not by Shri A.S. Garg, Sessions
Judge from whose court it was ordered to be transferred by the learned Single
Judge. The case shall be tried by the transferee court from the stage, in which
it was when the same was ordered to be transferred by the High Court. The
learned Sessions Judge, Chandigarh shall send the record of the case back to
the Court of Sessions Judge, Ambala without any delay. The learned Sessions
Judge, Ambala shall then forward the record to transferee Court (senior-most
Additional Sessions Judges, Ambala) and transferee court shall dispose of the
trial of the case expeditiously and as far as possible within three months from
the date of receipt of the case file.
With
the aforesaid directions the appeals are allowed and disposed of.
We
clarify that nothing stated hereinabove shall be construed as any expression of
opinion on the merits of the case or be treated as a reflection on the Court of
the Sessions Judge, Ambala.
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