NIRMAL SINGH ETCversusSTATE OF HARYANA

                            NIRMAL SINGH ETC.                                           A
                                         v.
                            STATE OF HARYANA

                               AUGUST 19, 1996

             [DR. AS. ANAND AND S.B. MAJMUDAR, JJ.)                                     B

       Code of Criminal Procedure, 1973 : Section 407.

       High Court-Power to transfer cases and appeal~ercise of suo moto
powei-Murder trial-Accused-Case suo moto transferred by High Court                      C
from one Dist1ict to another-High Court not taking into account financial
constraints and inconvellience caused to accused-No opportunity afforded
to accused--Clwllenge to directions of High Court transferrillg the case-Held
High Court Oil its ow11 illitiative call order transfer of a case ill the interest of
justic~But it should have been done only after issui11g notice to the accused
a11d granting them an opportunity to have their say ill the matte~eld suo               D
moto directiolls given by High Court for transfer of the case cannot be
sustained more particularly in view of the difficulties expressed by the appel-
lants.

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                                 E
Nos. 872-73 of 1996 Etc.

     From the Judgment and Order dated 28.5.96 of the Punjab &
Haryana High Court in Crl Misc. No. 8182-M/96 and 8666 of 1996.

     V.R. Reddy, Additional Solicitor General, Vikram Mahajan, Sushi!                   F
Kumar, B.S. Mor, S.P. Lalar, Ms. Kusum Singh, M.S. Dahiya, C.S. Ashri,
Goodwill Indeevar, A. Mariarputham, Ms. Aruna Mathur, Prem Malhotra
and Balraj Devan for the appearing parties.

      The following Order of the Court was delivered :
                                                                                        G
       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 H
                                  745
    746                   SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A   a challan against fourteen persons, including the appellants herein. Appel-
    lant, 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
B
    representing the State nor the Public Prosecutor representing tbe 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, 1996, 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
c   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.
D         On 10th July, 1996 we dismissed the special leave petition of appel-
    lant 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.

E         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
F   said purpose and 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 an impartial trial could not be held in any criminal court
    subordinate to it but in fairness to the accused it should have been done
G   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
H   that the o'rder of transfer had been made behind his back and without any
                        NIRMAL SINGH v. STATE                             747

notice to him or affording him any opportunity to oppose it. It is also stated   A
that while ordering the transfer the learned Single Judge of the High Court
did not take into consideration the financial constraints and the incon-
venience 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
                                                                                 B
devoid of force or merits. Even jf 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 Judge for
transfer of the case to the Court of Sessions Judge, Chandigarh cannot be        c
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     D
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 Singh Judge. The case shall be tried by the transferee court
from the stage, in which it was when the same was ordered tu be trans-           E
ferred by the High Court. The learned S.essions 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 the transferee Court (senior-most Additional Sessions Judge,
Ambala) and the transferee court shall dispose of the trial of the case
expeditiously and as far as possible within three months from the date of        F
receipt of the case file.

      With the aforesaid directions the appeals are allowed and disposed
of.
                                                                                 G
      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.

T.N.A.                                    Appeals allowed and disposed of.