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PETITIONER: SUKHBIR SINGH & ORS.

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       01/10/1997

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                 THE 1ST DAY OF OCTOBER, 1997 Present:                 Hon’ble Mr. Justice G.N. Ray                 Hon’ble Mr. Justice G.B. Pattanaik K.T.S. Tulsi, Som Raj Dutta, Sr. Advs., Uma Dutta, M.S. Dahiya, Advs. with them for the appellants Ajay Siwach, Adv, for Prem Malhotra, Adv. for the Respondent                          O R D E R      The following Order of the Court was delivered:                          O R D E R      In this  appeal  the  conviction  and  sentence  passed against  the  appellant  by  the  learned  Designated  Court Bhiwani at  Hissar on 6.2.88 in Sessions Trial No. 49.87 are under challenge.      Mrs. KTS Tulsi, learned senior counsel has appeared for appellant No.  1 Sukhbir Singh and Mr. Som Raj Dutt, learned senior counsel  has appeared  for the  remaining appellants. The appellant  Sukhbir  Singh  has  been  convicted  by  the learned Designated  Court under  Section 302 and Section 307 read  with   Section  149   Indian  Penal  Code.  The  other appellants have  also been  convicted under  Section 302 and Section 307  read with  Section 149  IPC. Although  the said appellants have  been convicted  under the  Arms Act. but no separate sentence has been passed for such offence.      Mr. Tulsi  has submitted  that initially the appellants were also  charged  for  the  offence  under  Terrorist  and Disruptive  Activities  Prevention  Act,  1985  (hereinafter referred  to   as  TADA).   The  learned   Designated  Court thereafter  assumed  jurisdiction  and  proceeded  with  the trial. Considering  he  materials  on  record,  the  learned Designated Judge inter alia came to the finding that no case for an  offence under  TADA had been made out. Therefore, an order was passed by the learned Designated Judge on 19.12.87 that the  case should  be  transferred  to  the  appropriate criminal court  for the  trial of the said criminal case. In basing the  said order  of 19th  December, 1987, the learned Judge, Designated  Court had relied on a Full Bench decision of the  Punjab and Haryana High Court in Bimal Kaur Khalsa’s case (AIR  1988 Punjab  and Haryana page 95) It appears that an appeal  was taken  to this  Court against  the said  Full

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Bench Decisions  of the  Punjab and  Haryana High  Court  in Bimal Khalsa’s  case and it appears that an interim order of stay was granted by this Court. In view of the said order of stay, the  case was  again referred  back before the learned Designated Judge for trial on merits.      Mr. Tulsi  has submitted  that the principles indicated by the Full Bench of the Punjab and Haryana High Court as to what constitutes  offence under  TADA in Bimal Khalsa’s case has been  considered by the Constitution Bench of this Court in Kartar Singh’s case (1994 (3) SCC page 569. Mr. Tulsi has submitted that  in Hitendra Vishnu Thakur and Ors. (1994 (4) SCC 602)  this court  also considered what are the terrorist and disruptive  activities under  TADA. The decision of this Court in  the said  Constitution Bench decision approves the principle indicated  in Bimal  Khal’a case.  Therefore,  the order passed  by the  learned Designated  Judge that no case under TADA  had been  made out  must be  held  to  be  fully justified. Therefore,  on merits also, there was no occasion for the  Designated Court  to  proceed  with  the  trial  of because an  appeal was pending before this Court against the judgment in Bimal Khalsa’s case and an interim order of stay was passed  in the  said appeal,  there  was  no  reason  to retransfer the  case before  the learned Designated Court in the absence  of any  order passed  by  any  competent  court setting aside  the order dated 19th December, 1987 passed by the learned Designated Judge by which it was decided that no case under  TADA was  made out an therefore, the case should be transferred before the regular criminal court.      Mr. Tulsi  has, therefore,  submitted that  the learned Designated Judge,  has no  jurisdiction to  proceed with the trial of  the criminal  case and  pass the impugned order of conviction and  sentence against  the appellant for offences under Indian  Penal Code  and Arms  Act. Mr.  Tulsi has also submitted that in Rambhai Nathubai Gadhvi and Ors. Vs. State of Gujarat  (1977 (5)  Scale page  388) this  Court has held that where  for want of appropriate sanction, the Designated Court did  not have jurisdiction to try the case, the entire trial was  vitiated. It was submitted before this court that in view  of detention  in prison  for a long time during the pendency of  the  trial  before  the  Designated  Court,  no further trial  of the  said criminal  case  by  the  regular criminal court  should be  allowed. It  has been observed by this Court  that the  question of  proceeding further of the said criminal case before the regular criminal court will be taken into  consideration by the State on being alive to the said fact  of suffering long detention by the accused during the pendency  of the  trial before the Designated Court. Mr. Tulsi has  submitted that  in the instant case long time has elapsed  since  the  institution  of  the  case  before  the Designated Court  The case  can only be tried by the regular court and  such trial  is likely  to consume  long time. The delay in  proceeding with  the trial  before the  designated court is  not attributable  to the  accused. Therefore,  the said criminal  trial deemed to be pending before the regular criminal bench  should be  quashed by  this Court because of the long  delay involved  in completing  the  trial  thereby creating serious  prejudice against  the appellants.  In the facts of  the case, Mr. Tulsi has rightly contended that the order of the designated judge dated 19.12.1987 releasing the case for  being tried  by regular  criminal Bench  was fully justified. There  was no  occasion to  retransfer  the  said criminal before  the designated  court when  the order dared 19.12.1987 was  not set  aside by  any competent  authority. Such subsequent retransfer of the case before the designated court  and   decision  rendered   by  the  designated  court

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therefore cannot be sustained and the same therefore are set aside by  allowing this  appeal. We are however not inclined to quash  the criminal  case which  must  be  deemed  to  be pending before  regular criminal  Bench. It  will be open to the accused to make appropriate application for quashing the criminal trial  before the  appropriate  court  if  they  so desire. We  make it  clear that  we have  not expressed  any opinion in this regard. The interim order of bail granted by this Court  will continue  for a  period of  six weeks  from today so  that appropriate  application for interim bail may be made  before the Court where the trial will commence. The appeal is disposed of accordingly.