19 August 1996
Supreme Court
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NIRMAL SINGH Vs STATE OF HARYANA

Bench: A.S.ANAND,S.B.MAJMUDAR
Case number: Crl.A. No.-000118-000119 / 1998
Diary number: 20342 / 1997
Advocates: R. N. KESWANI Vs


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PETITIONER: NIRMAL SINGH ETC.

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       19/08/1996

BENCH: A.S.ANAND, S.B.MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                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

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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

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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.