SUKHBIR SINGH AND ORS.versusSTATE OF HARYANA

                        SUKHBIR SINGH AND ORS.                                  A
                                      V.

                           STATE OF HARYANA

                             OCTOBER 1, 1997

                  [G.N. RAY ANDG.B. PATTANAIK, JJ.]                             B


        Terrorists and Disruptive Activities (Prevention) Act, 1987 : Section
18. .

       Designated Court-TADA Trial-Transfer of case to regular criminal C
Court-Retransfer to designated Court-Validity of-Appellants accused tried
by designated Court-Designated Court came to the finding that no case for
offence under TADA had been made out-Consequently case transferred to
appropriate Criminal Court for trial-Order passed relying upon a full
Bench decision of the Punjab and Haryana High Court-Appeal filed in D
Supreme Court against the said decision of Punjab & Haryana High Court
wherein interim stay was granted by Supreme Court-Jn view of said stay
order case retransferred to Designate Court-Appeal by appellants accused
before Supreme Court-Held the order of the designated judge releasing the
case for being tried by regular criminal Bench was fully justified-There was
no occasion to retransfer the said criminal case before the designated court E
when that order was not set aside by any competent authority-Subsequent·
retransfer of the case before the designated court and decision rendered by
the designated court therefore held not sustainable and therefore are set
aside.
                                                                                F
     *Bimal Kaur Khalsa v. Union ofIndia, AIR (1988) Punjab and Haryana
page 95; Kartar Singh v. State ofPunjab. [1994) 3 SCC 569; Hitendra Vishnu
Thakur and Ors. v. State of Maharashtra, (1994) 4 SCC 602 and Rambhai
Nathubai Gadhvi and Ors. v. State of Gujarat, (1977) 5 Scale 388, referred
to.
                                                                                G
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 169
of 1988.

    From the Judgment and Order dated 6.2.88 of the Designated Court,
Bhiwani at Hisar in T.S.C. No. 9/86 S.T. No. 49of1987.
                                                                                H
                                    401
    402                       SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A        K.T.S. Tulsi, Som Raj Dutta, Uma Dutta and M.S. Dahiya for the .
    Appellants.

          Ajay Siwach for Prem Malhotra for the Respondent.

          The following Order of the Court was delivered :
B
          In this appeal the conviction and sentence passed against the appellant
    by the learned Designated Court Bhiwani at Hissar on 6.2.88 in Sessions Trial
    No. 49/87 are under challenge.

          Mr. KTS Tulsi, learned senior counsel has appeared for appellant No.
C   I Sukhbir Singh and Mr. Som Raj Dutta, learned senior counsel has appeared
    for the remaining appellants. The appellant Sukhbir Singh has been convicted
    by the learned Designated Court under Section 302 read and Section 307 read
    with Section 149 India Penal Code. The other appellants have also been
    convicted under Section 302 and Section 307 read with Section 149 iPC.
D   Although the said appellants have been convicted under the Arms Act, but
    no separate sentence has been passed for such offence.

           Mr. Tulsi has submitted that initially the appellants were also charged
    for the offence under Terrorist and Disruptive Activities (Prevention) Act,
     1985 (hereinafter referred to as TADA). The learned Designated Court thereafter
E   assumed jurisdiction and proceeded with the trial. Considering the materials
    on record, the learned Designated Judge inter alia came to the finding that
    no case for an offence under TADA had been made out. Therefore, an order
    was passed by the learned Designated Judge on 19.12.87 that the case should
    be transferred to the appropriate criminal court for the trial of the said criminal
    case. Jn basing the said order of 19th December, 1987, the learned Judge,
F   Designated Court had relied on a full Bench decision of the Punjab and
    Haryana High Court in Bimal Kaur Kha/sa's case AIR (1988) Punjab and
    Haryana page 9 5. It appears that an appeal was taken to this Court against
    the said full Bench Decision of the Punjab and Haryana High Court in Bimal
    Khalsa's case and it appears that an interim order of stay was granted by this
G   Court. In view of the said order of stay, the case was again referred back
    before the learned Designated Judge for trial on merits:

          Mr. Tulsi has submitted that the principles indicated by the Full Bench
    of the Punjab and Haryana High Court as to what constitutes offence under
    TADA in Bimal Khalsa 's case has been considered by the Constitution
H   Bench of this Court in Kartar Singh's case, [1994] 3 SCC page 569. Mr. Tulsi
                      SUKHBIR SINGH v. STATE OF HARYANA                          403
    has submitted that in Hitendra Vishnu Thakur and Ors., [1994] 4 SCC 602 this        A
     Court also considered ~hat are the terrorist and disruptive activities under
    TADA. The decision of this Court in the said Constitution Bench decision
    approves the principle indicated in Bimal Khalsa's case. Therefore, the order
    passed by the learned Designated Judge that no case under TADA had been
    made out must be held to be fully justified. Therefore, on merits also, there       B
    was no occasion for the Designated Court to proceed with the trial of the said
    case when no offence under TADA was made out. Mr. Tulsi has further
    submitted that only beca·1se an appeal was pending before this Court against
    the judgment in Bimal Khalsa's case and an interim order of stay was passed
    in the said appeal, there was no reason to retransfer the case before the
    learned Designated Court in the absence of any order passed by any ·competent       C
    court setting aside the order dated 19th December, 1987 passed by the learned
    Designated Judge by which it was decided that no case under TADA was
    made out and therefore, the case should be transfered before the regular
    criminal court.

           Mr. Tulsi has, therefore, submitted that the learned Designated Judge,       D
•   had no jurisdiction to proceed with the trial of the criminal case and pass the
     impugned order or conviction and sentence against the appellant for offence
    under Indian Penal Code and Arms Act. Mr. Tutsi has also submitted that in
    Rambhai Nathubai Gadhvi and Ors., v. State of Gujarat, (1977) 5 Scale page
    388 this Court has held that where for want of appropriate sanction, the            E
    Designated Court did not have jurisdiction to try the case, the entire trial was
    vitiated. It was submitted before this court that in view of detention in prison
    for a long time during the pendency of the trial before the Designated Court,
    no further trial of the said criminal case by the regular criminal court should
    be allowed. It has been observed by this Court that the question of proceeding
    further of the said criminal case before the regular criminal court will be taken   F
    into consideration by the State on being alive to the said fact of suffering
    long detention by the accused during the pendency of the trial before the
    Designated Court. Mr. Tutsi has submitted that in the instant case long time

                          --·
    has elapsed since the institution of the case before the Designated Court the
    case can only be tried by the regular court and such trial is likely to consume     G
    long time. The delay in proceeding with the trial before the designated court
    is not attributable to the accused. Therefore, the said criminal trial deemed to
    be pending before the regular criminal bench should be quashed by this Court
    because of the Jong delay involved in completing the trial thereby creating
    serious prejudice against the appellants. In the facts of the case, Mr. Tulsi
    has rightly contended that the order of the designate judge dated 19.12.1987        H
    404                      SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A   releasing the case for being tried by regular criminal Bench was fully justified.
    There was no occasion to retransfer the said criminal case before the designated
    court when the order date 19.12.1987 was not set aside by any competent
    authority. Such s.ubsequent retransfer of the case before the designated court
    and decision rendered by the designated court therefore cannot be sustained
    and the same therefore are set aside by allowing this appeal. We are however
B   not inclined to quash the criminal case which must be deemed to be pending
    before regular criminal Bench. It will be open to the accused to make appropriate
    application for quashing the criminal trial before the appropriate court if they
    so desi.re. We make it clear that we have not expressed any opinion in this
    regard. The interim order of bail granted by this Court will continue for a
c   period of six weeks from today so that arpropriate application for interim bail
    may be made before the Court where the trial will commence. The appeal is
    disposed of accordingly.

    T.N.A.                                                     Appeal disposed of.


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