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PETITIONER: VIJAY PAL & ORS.

       Vs.

RESPONDENT: STATE OF HARYANA & ANR.

DATE OF JUDGMENT:       03/11/1998

BENCH: G.T.NANAVATI, S.P.KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT NANAVATI. J. Leave granted. Heard leaned counsel for the parties. What  is  called  in  question in this appeal is the propriety and legality of the judgment and order  passed  by the  Punjab  &  Haryana High Court in Criminal miscellaneous No.  11034 of 1998, whereby the Sessions Case arising out of Case FIR No.  53 dated 28.1.1997, pending in  the  Court  of Sessions  Judge  Sonepat  is transferred to the Court of the Sessions Judge Chandigarh. On 28.1.1997, Mukesh daughter  of  Karam  Singh  and wife of appellant  No.    1  Vijay  Pal  died.    It  was an unnatural death.  On the basis of the information lodged  by Karam Singh  an offence was registered by the Police.  After investigation the police chargesheeted Vijay Pal, his  elder brother  Ved  Pal  and  his  mother  Ankaur  Devi for having committed offences publishable under Sections 498 A and  304 B IPC.    On  the case being committed the Sessions Court at Sonepat framed the charge on 26.9.97.  It appears  from  the impugned interim order that the case was fixed for recording evidence on 19.11.97, 15.1.98 and 21.4.98.  On 21.4.98 Karam Singh,  his  daughter Sunila and other prosecution witnesses approached Mr.  Justice Singhal, who was  on  an  inspection tour  and  happened  to  be  at  Gohana on that day, with an application for getting the said case transferred  from  the Sessions Court,  Sonepat.  It was alleged in the application that as party of the  accused  was  terrorising  prosecution witnesses  they will not be able to depose freely before the Sessions Court at Sonepat.  It was alleged that on 19.11.97, 5.1.98 and 21.4.98 also the accused had  brought  with  them their  musclemen  for terrorising the prosecution witnesses. Singhal, J.received that application and a notice was issued to the accused/appellants.  They  were  directed  to  appear before Singhal, J.    on  23.4.98.    The appellants did not appear before him on 23.4.1998.  On 27.4.1998,  Singhal,  J. while camping  at  Sonepat  passed  the impugned order.  The relevant part of it reads as under :  IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH  CR.M.NO.11034 OF 1998

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State Vs. vajay Pal and Others Present:  Lal Singh.  grandfather of Smt.  Mukesh- deceased,   wife of Vijay Pal in person. Vijay Pal, Ved Pal and Ankur Devi- Accused with Shri Raj Kumar, Advocate. Shri Shatrughan, Public Prosecutor for the State at Sonepat XXXXXXXXXXXXXXXXXX On  21.4.1998,  while  I  was  camping  at Gohana in connection with the annual inspection of the  Courts  there, Karam Singh, his daughter Sunila and several others appeared before  me  at  PWD  Rest  House,  Gohana  and  produced  an application before me  praying  that  this  case  should  be transferred to Chandigarh as P.Ws will not be able to depose in  the case with full freedom. They are being terrorised by accused party who hails from village  Rattangarh,  P.S.Sadar Sonipat.  Karam  Singh  has  alleged  that the accused party brings with them armed  musclemen  death.  On  19.11.97  and 15.1.98  on which dates evidence was to be recorded they had brought witnesses, accused party began threatening P.Ws with death.  On  those  dates,  they  had  brought  a  number  of musclemen  with  them.  They  repeated  the same exercise on 21.4.98, when they had brought P.Ws with them. XXXXXXXXXXXXXXXX Without  going  into  the  merits  of  the  transfer application, suffice it to say that the accused and the P.Ws should  have  an atmosphere where there can be a fair trial. Fair trial is possible when there is no such apprehension of danger  to  either  party  at  the  hands  of  other  party. Interests  of  justice  and  fair play demand that the trial should not be held either in Sonipat Sessions Division or in Karnal Sessions Division. Son that both the parties are away from  tension.  It   is   desirable   that   this   Sessions case/Session trial be withdrawn from the file of the learned Sessions  Judge,  Sonipat  and  transferred  to  the file of learned  Sessions   Judge,   Chandigarh.   It   is   ordered accordingly..........................." Mr.  Dahiya, learned counsel for the  appellant  has challenged  this  order  on  the ground that it is improper, unjust and illegal as the learned Judge while at Sonepat had no jurisdiction to  deal  with  an  application  made  under Section 407  Cr.P.C.    It was also submitted that the order was passed without giving proper opportunity of  hearing  to the appellants.      Learned  counsel  for  the  State  also contended that the procedure adopted by  the  learned  Judge was  irregular  and  unjust  and, therefore, the order under challenge is illegal.  Learned  counsel  appearing  for  the contesting  respondent was not able to justify the manner in which the order was passed by the learned Judge. On 21.4.98 Singhal.J.  was camping at  Gohana  while on an  annual  inspection of the Courts there.  While he was at the PWD Rest House, Karam Singh, his daughter Sunila  and other  witnesses had approached him and given an application for transferring the said sessions case.  The learned  Judge should have either directed them to file that application in the  registry  of  the  High  Court  at Chandigarh or if the learned Judge was of the opinion that it was required to  be dealt  with  by  the  High Court in exercise of its suo motu revisional power, he should have himself forward it  to  the Registry  of  the  High  Court  with a direction to place it before a Bench competent to deal with  it.    There  was  no valid  reason  for  the  learned  Judge  to  entertain  that application at Gohana and pass the final order  at  Sonepat, even  if  he  was  otherwise  entitled  to entertain such an application under the Rules framed by  the  High  Court  and

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allocation  of  work by the Chief Justice of the High Court. The learned Judge should  not  have  entertained  it  as  an application made  under Section 407 Cr.P.C.  when it was not presented in the prescribed manner and was not supported  by an affidavit. The procedure followed in deciding that  application was  strange.  Notice  was  issued  to the appellants by the Sessions Court, probably  under  direction  of  Singhal.  J. Notice issued to Ankur Devi reads as under :-  IN THE COURT OF SHRI V.P. CHAUDHARY  SESSIONS JUDGE : SONIPATH. State Vs. Vajay Pal and Others. FIR No. 53 dated 28.2.97 P.S.Sadar, Sonepat Under Section - 304-B IPC 498-A IPC To, Smt. Ankur Devi, wife of Shri Mahabir Singh, Caste Jat, Resident of Rattangarh, P.S., Sadar, Sonipat. In  the  above noted case you are directed to appear before His Lordship Hon’ble Mr.  Justice M.L.Singhal, Punjab and Haryana at Camp Officer Sonepat on 23.4.98 at  PWD  Rest House,  Sonepat,  positively  in  connection with a Transfer Application. Sd/- Superintendent District and Sessions Judge Sonipat 21.4.98 It called  upon  the  appellants  to  appear  before Hon’ble  Mr.  Justice  M.L.Singhal,  in  the  Sessions  Case arising out of FIR No. 53 dated 28.2.97 of PS Sadar, Sonepat in connection with a Transfer  Application.  The  appellants were  directed  to  appear  at Camp Office at PWD Rest House Sonepat. The notice did not  refer  to  any  other  judicial proceeding  except  the  proceedings pending in the Sessions Court.  It  did  not  state  who  had  filed  the   Transfer Application.  No copy of the application was sent along with it. It was not  stated  therein  that  the  High  Court  has initiated  a  judicial  proceeding  on  the  basis  of  that application and hearing of that judicial proceeding is fixed before Hon. Singhal, J. With  such  a  vague  and  confusing notice,   it   is   not  possible  to  say  that  sufficient opportunity of hearing was given to  the  appellants  before deciding  the  Transfer  Application  which was subsequently numbered as Crl. Miscellaneous No. 11034 of 1998. The learned Judge did not pass any order  on  it  on 23.4.98. No other date was fixed for its hearing. On 27.4.98 he  passed  the  order mentioning therein that the following persons were present : "Lal Singh, grandfather of Smt. Mukesh Deceased, wife of Vijal Pal in person Vijay, Pal, Ved Pal and Ankur Deviaccused with Shri Raj Kumar, Advocate. Shri Shatrughan, Public Prosecutor for the State at Sonepat." It is categorically  stated  by  the  appellants  in their  special leave petition that neither on 23.4.98 nor on 27.4.98 they had appeared before the learned Judge.  It  was submitted  that they could not have known, in absence of any intimation in that behalf  that  the  next  hearing  of  the Transfer Application was to take place at Sonipat on 27.4.98 then   they   would   have  made  submissions  opposing  the application. The judgment does not refer to  any  submission

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made on behalf of the appellants. It is also doubtful if the public  prosecutor  Shri Shatrughan had also appeared before the learned Judge and was heard before that order came to be passed. It he was heard then at least  it  would  have  been stated  in the judgment that he had supported or opposed the application. Learned counsel for the  contesting  respondent was  not  able  to  say  that  the  appellants were heard on 27.4.98 before the Transfer Application came to be decided.  What is more disturbing is the fact that the learned Judge disposed of that application without  considering  the merits of the  application. We have quoted earlier that part of  the  judgment which states so. It was not consent order. No finding was recorded to the effect that  the  prosecution witnesses were terrorised or were likely to be terrorised or influenced  in any other manner. The learned Judge failed to appreciate that in absence of any justifiable reason it  was not proper and legal to exercise the power under Section 407 Cr. P.C. and transfer the sessions case.         For  the aforesaid reasons, we allow this appeal and set aside the order passed by the  High  Court  in  Criminal Miscellaneous No. 11034 of 1998.