Case Note & Summary
The Supreme Court dealt with appeals arising from a CBI-investigated murder case. The dispute concerned the High Court's suo motu order transferring the criminal trial from the Court of the Sessions Judge, Ambala, to the Court of the Sessions Judge, Chandigarh, without giving notice or opportunity of hearing to the accused. The case had been at the stage of recording statements under Section 313 of the Code of Criminal Procedure, 1973, when the transfer order was passed. The factual background involved FIR No. 89 dated 16th July, 1994, which was investigated by the CBI and led to a challan against fourteen persons, including the appellants. Appellant Nirmal Singh was denied bail by the trial court, the High Court, and the Supreme Court on various occasions. On 9th May, 1996, a fresh bail petition was filed, and the Sessions Judge, Ambala, granted interim bail to Nirmal Singh on 11th May, 1996, until 20th May, 1996, in the absence of the District Attorney and Public Prosecutor. The High Court, on being moved by the CBI, stayed the order granting interim bail. Nirmal Singh surrendered on 16th May, 1996. On 28th May, 1996, the High Court set aside the interim bail and simultaneously transferred the trial from Ambala to Chandigarh. The Supreme Court on 10th July, 1996, dismissed the special leave petition against the cancellation of bail but issued notice on the transfer directions. The legal issue before the Supreme Court was whether the High Court's suo motu transfer of the case without hearing the accused was sustainable. The Court noted that the learned Single Judge had jurisdiction under Section 407 Cr.P.C. to transfer a case suo motu, but such power must be exercised in accordance with fair play and natural justice. The accused had raised objections regarding financial constraints and inconvenience, as they might have to engage new counsel at Chandigarh. The Court held that even if transfer was considered necessary in the interest of justice, it should not have been done without notice to the parties. The ex parte transfer order was set aside as it violated fair play in action. The Court allowed the appeals and directed that the case arising out of FIR No. 89 dated 16th July, 1994, be tried by the senior-most Additional Sessions Judge, Ambala, and not by the original Sessions Judge, Shri A.S. Garg. The transferee court was to proceed from the stage at which the case was when it was ordered to be transferred. The Sessions Judge, Chandigarh, was directed to send the record back to the Sessions Judge, Ambala, who would then forward it to the transferee court. The transferee court was to dispose of the trial expeditiously, preferably within three months from the date of receipt of the case file. The Court clarified that nothing in its order should be construed as an expression on the merits of the case or as a reflection on the Court of the Sessions Judge, Ambala.
Headnote
A) Criminal Procedure - Transfer of Cases - Suo Motu Transfer - Code of Criminal Procedure, 1973, Section 407 - The High Court had jurisdiction to transfer a criminal case suo motu under Section 407 Cr.P.C. if satisfied that a fair and impartial trial could not be held in any subordinate criminal court, but such power must be exercised in accordance with fair play and natural justice. The High Court transferred the case without any application and without issuing notice to the accused or granting them an opportunity to be heard. Held that the ex parte suo motu transfer order was unsustainable and violated fair play in action. B) Constitutional Law - Natural Justice - Audi Alteram Partem in Judicial Orders - Code of Criminal Procedure, 1973, Section 407 - The accused were not given notice or opportunity to oppose the transfer, which caused financial constraints and inconvenience, potentially requiring engagement of new counsel at Chandigarh. The Court held that even if the learned Single Judge was of opinion that transfer was in the interest of justice, it should not have been done without notice to parties on the plainest consideration of fair play and justice. C) Criminal Procedure - Fair Trial - Directions for Expeditious Trial - Code of Criminal Procedure, 1973, Sections 313 and 407 - Upon setting aside the transfer order, the Supreme Court directed that the case be tried by the senior-most Additional Sessions Judge, Ambala, not by the original Sessions Judge, and that the trial proceed from the stage at which it was transferred. The transferee court was directed to dispose of the trial expeditiously, preferably within three months of receipt of the record.
Issue of Consideration
Whether the High Court's suo motu order transferring a murder case trial under Section 407 Cr.P.C. without notice to the accused violated principles of natural justice and fair play, and what appropriate directions are necessary for fair trial.
Final Decision
Supreme Court allowed the appeals, set aside the High Court's directions dated 28 May 1996 transferring the case, and directed that the trial arising out of FIR No. 89 dated 16 July 1994 be conducted by the senior-most Additional Sessions Judge, Ambala, not by Shri A.S. Garg; the transferee court to take up the case from the stage it had reached when transferred; records to be sent back from Chandigarh to Ambala and then to transferee court; trial to be disposed of expeditiously within three months of receipt of file. Clarified no opinion on merits or reflection on Sessions Judge Ambala.
Law Points
- High Court's power under Section 407 Cr.P.C. to transfer cases suo motu
- requirement of notice and hearing to accused before transfer
- principles of natural justice and fair play in judicial orders
- inconvenience and financial burden of accused as relevant consideration
- appellate court can direct trial by alternate court
