Full Judgment Text
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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.