Jammu & Kashmir High Court
Javid Ahmad Zargar And Ors. vs Attorney General Of India And Ors. on 4 May, 1996
Equivalent citations: 1996CRILJ3006
JUDGMENT V.K. Gupta, J.
1. By this common Judgment, we propose to dispose of all the five petitions together.
2. A learned single Judge of this Court (Hon'ble) Mir, J.) while entertaining these petitions, issued notices of show cause and passing ad-interim directions vide order dated 2nd August, 1995, referred the cases for disposal to a Division Bench in terms of Rule 14(9) of the Jammu and Kashmir High Court Rules, 1975. It is because of this reference that the cases have come up before the Division Bench for hearing and disposal.
3. Notification issued vide S.O. 551 (E) dated 17th June, 1995 by the Ministry of Home Affairs, Govt. of India, has been challenged in these five petitions. Vide this Notification, in exercise of the powers conferred upon the Central Government by Section 11(2) of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (hereinafter to be referred as an Act for the sake of brevity) transferred some cases involving the petitioners herein pending before the Designated Court under the Act at Jammu to the Designated Court under the Act at Ajmer in the State of Rajasthan. In all these five cases, relating to various FIRs, offences under various Sections of the Act and other Penal Laws including Ranbir Penal Code and the Indian Arms Act were involved. It shall be advantageous to reproduce the relevant text of the Notification which reads as under:-
MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi The 17th June, 1995.
S.O.551 (E): Whereas the Central Government is of the opinion that the situation prevailing in the State of Jammu & Kashmir is not conductive to a fair, impartial, or speedy trial, as there exists a grave risk to the safety of the accused, witnesses, public prosecutor and the Judge of the Designated Court; Whereas the Attorney General of India moved motion for transfer of cases specified in the table below.
The concurrence of the Chief Justice of India for such transfer, vide orders dated 4-1-1994 in Motion numbers 305 and 307 of 1991 and order dated 6-1 -1994 in Motion numbers 308, 309 and 310 of 1991.
Now, therefore, in exercise of the powers conferred by Sub-section (2) of Section 11 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987) the Central Government with the concurrence of the Chief Justice of India hereby transfers the cases specified in the said Table pending before the Designated Court at Jammu & Kashmir to the Designated Court at Ajmer in the State of Rajasthan....
4. As is evident, the impugned Notification was issued after obtaining the previous concurrence of the Hon'ble Chief Justice of India which was granted on 4lh January. 1994. The relevant extract from the Concurrence Order passed by the Hon'ble Chief Justice of India, agreeing for the transfer of the cases reads as under:-
I am satisfied that in the facts and circumstances set out in the motion and in the Home Secretary's affidavit, the Government's opinion appears informed by the considerations relevant under Sub-section (2) of Section 11 of the Act. I am of the view that the concurrence sought should be accorded for the transfer of case No. R. C. 1 (S)/90-SIU. V, now pending on the file of the Designated Court, Jammu in the State of Jammu & Kashmir. It is ordered accordingly.
5. Mr. Z.A. Shah, learned counsel appearing for some of the petitioners during the course of his elaborate arguments submitted that the impugned Notification transferring the cases from Designated Court at Jammu to the Designated Court at Ajmer was un-constitutional and illegal, primarily and basically on the ground that the Central Government did not have any jurisdiction, authority and power to issue the Notification, transferring the cases because of the fact that the Transfer Order was passed on 17th June', 1995, whereas the Act itself elapsed on 23rd May, 1995. According to Mr. Shah, the elapsing of the Act on 23rd May, 1995 took away from the Central Government the power, authority and the jurisdiction to transfer the cases from one Court to another in terms of Section 11 (2) of the Act. The force of Mr. Shah's submission was that whereas certain subjects were no doubt saved in terms of Section 1(4) of the Act, the said Saving provision did not include within its ambit and scope the power to transfer the cases after the Act itself elapsed on 23rd May. 1995.
6. His other ground of attack against the impugned Notification was that the Hon'ble Chief Justice of India did not follow the Rules of natural Justice by not affording the opportunity of being heard to the petitioners before he gave his concurrence for the transfer of the cases. According to Mr. Shah, the Hon'ble Chief Justice of India should have allowed the petitioners, herein accused in all these cases, to represent their view point before him and to place the relevant material for his consideration to enable the Hon'ble Chief Justice of India to consider all the factual and legal aspects of the case before passing the Concurrence Order. Since the Hon'ble Chief Justice of India did not hear the petitioners, Mr. Shah submitted, the Order granting concurrence was bad in Law and because the concurrence itself was legally not given, the impugned Notification based on this concurrence was un-constitutional and illegal. Mr. Shah also submitted that the impugned Notification was violative of Article 14 of the Constitution of India inasmuch as whereas certain cases in which the Central Bureau of Investigations (CB1) was a party were transferred, a large number of other cases in which the State Government was a party (as a prosecutor) were not transferred from Designated Court at Jammu. The petitioners in all the five petitions were involved not only in those cases which were transferred under the impugned Notification but were also involved in many other cases which were not transferred. Mr. Shah submitted that the transfer of only few cases to Ajmer would involve the petitioners in unnecessary movement from one place to another because they will have to defend the cases both at Jammu and Ajmer.
7. Mr. Z.A. Shah further argued that the Notification was also bad because it suffered from total non-application of mind and was a mechanical exercise of power by the Central Government. Elaborating on this submission, Mr. Shah contended that the motion by the Attorney General was made before the Hon'ble Chief Justice of India in the year 1991 and the concurrence was granted by the Hon'ble CJI on 4th January, 1994, whereas the Notification was issued on 17th June, 1995. According to Mr. Shah, the ground realities and the situation under-went a lot of change during this intervening period and there was a strong likelihood of the factors relevant for seeking transfer of the cases having themselves either disappeared or undergone a change and, in view of the new situation as could be available in June 1995, it was obligatory upon the Central Government to have re-assessed the situation and by a fresh application of mind to have re-processed the matter by affording a fresh opportunity of hearing the petitioners.
8. Mr. R.A. Jan, L/C appearing for some of the petitioners, submitted that the impugned Notification suffered from a legal vice and infirmity inasmuch as the same was issued in purported exercise of the power vested in the Central Government under Sub-section (2) of Section 11 of the Act whereas actually it ought to have been issued under Sub-section (3) of Section 11 of the Act. According to Mr. Jan, the only provision which enabled the Central Government to exercise the power of transfer was the one to be found in Sub-section (3), and not Sub-section (2) of Section 11 of the Act and because the conditions prescribed in Sub-section (3) did not exist and admittedly because, according to Mr. Jan, power under Sub-section (3) was not exercised, the issuance of the Notification under Sub-section (2) was un-constitutional and illegal and on that ground liable to be struck-down and set aside.
9. Mr. S.T. Hussain, L/C appearing for respondents No. 5 to 11 supported the arguments and submissions of the learned counsel for the petitioners and, while assailing the impugned Notification submitted that the Notification was bad in Law and liable to be struck down since the Designated Court at Ajmer did not have any jurisdiction to try cases involving the petitioners for offences under various Sections of the Ranbir Penal Code inasmuch as Ranbir Penal Code was not applicable outside the territorial limits of Jammu and Kashmir State and because, it was a State Law, the Court at Ajmer in the State of Rajasthan had no jurisdiction to try the accused for offences under the Ranbir Penal Code. According to Mr. Hussain, extra territorial exercise of jurisdiction by the Court at Ajmer was against the provisions of the Constitution of India and the principles of natural justice. The thrust of the argument of Mr. Hussain was that the Designated Court at Ajmer had the jurisdiction, in respect of persons belonging to J & K. State, to try offences only arising under the Act and that it had no jurisdiction to try these persons for another offence, for which the Court in J & K State had the exclusive jurisdiction, particularly since such Penal Laws had no application outside J & K State.
10. Mr. Z.A. Qureshi, also appearing for some of the petitioners broadly supported the arguments of the other learned counsel for the petitioners and submitted that sending the petitioners for trial to Ajmer would result in great inconvenience to them. The petitioners will be deprived of their right of being defended by the counsel of their choice.
11. Mr. R. Pant, learned Govt. Advocate, who appeared for the contesting respondents took us through various documents filed in the case and the pleadings of the parties. He in particular drew our attention to the factual averments made in the objections filed by him on behalf of the respondents. The main thrust of the arguments of Mr. Pant made during the course of hearing of the cases was that the Notification impugned in these petitions was issued by the Central Government after obtaining the concurrence by the Hon'ble Chief Justice of India, on a Motion made before him by the Attorney General of India in terms of Sub-section (2) of Section 11 of the Act. Mr. Pant by his lucid elaboration minutely dwelled upon the true import of Sec-lion 11 of the Act and took pains in analysing the correct perspective regarding the power of the Central Government, in the light of Sections 11, 1(4) of the Act and other related provisions to canvass the point that the impugned Notification was truly in bona fide exercise of the power of the Central Government, legitimately vesting in it under the Act and that the power was exercised after duly observing all legal requirements, including the obtaining of the prior concurrence of the Hon'ble Chief Justice of India. Mr. Pant highlighted the extent and scope of the Saving provision in the Act, namely Section 1(4). The burden of Mr. Pant's argument was that the legislature by enacting the Saving provision in the Act clearly intended that certain subjects which were mentioned in four clauses of Section 1(4) were saved, despite the lapse of the Act itself and because of the un-ambiguous phraseology used in this express provision of Law, the subjects mentioned in Section 1(4) clearly were saved, despite the fact that the Act itself lapsed on 23rd May, 1995. The three subjects on which great stress was laid by Mr. Pant were found occurring in Clause (d) of Sub-section (4) of Section 1 of the Act and according to Mr. Pant, once the legislature saved all investigations, legal proceedings and remedies, which were going on or were available during the life of the Act, it also saved the right to a fair, impartial and speedy trial. Reading Section 1(4)(d) along with Section 11(2) of the Act. argued Mr. Pant, would clearly mean are suggest that a fair, impartial and speedy trial was the right of the parties to the trial and to ensure the enjoyment of such right, it was open to the Central Government to take such steps as would enable it to do so. If. therefore, the Central Government thought and found that a fair, impartial and speedy trial was not possible in Jammu, it was open to it to transfer the cases to any other Court and merely because the Act lapsed on 23rd May, 1995, this power was not taken away from the Central Government. The lapsing of the Act, therefore, according to Mr. Pant, could not be construed as depriving the Central Government of its power to transfer the cases because such power was available to it even after the Act lapsed on 23rd May, 1995.
12. Touching upon the question of delay in issuing the Notification, Mr. Pant explained the factual aspect as to why delay occurred in issuance of the impugned Notification despite the Hon'ble Chief Justice of India having granted his concurrence on 4th January, 1994. Mr. Pant submitted that immediately after the concurrence was granted by the Hon'ble Chief Justice of India, but even before the Central Government could issue the Notification transferring the cases, a Single Judge of this Court (Hon'ble Mir, J.) vide order passed on 7th February, 1994 in HC (W) No. 81/1994: Manzoor Ahmad Soil v. Attorney General of India, had while entertaining a petition against the Concurrence Order passed by the Chief Justice of India, stayed the shifting of the accused persons from Jammu to Ajmer. The aforesaid ad interim direction of the learned Single Judge was vacated by the Division Bench only on 1st December 1994, especially the continued operation of the aforesaid ad interim direction was a situation whereby the Central Government could not proceed in the matter, as a matter of propriety and in deference to the pendency of the proceedings in this Court. Once the proceedings came to an end in this Court, the Central Government started acting in the matter, based on the concurrence of the Chief Justice of India and, giving allowance and margin to certain formalities to be observed and requirements to be complied with, issued the Notification on 17th June. 1995.
13. Mr. Pant also referred to the important and leading Judgment of the Supreme Court in the case of Kartar Singh v. State of Punjab reported in (1994) 3 SCC 569: (1994 Cri LJ 3139) to argue and submit that the grant of concurrence by the Chief Justice of India on a Motion moved before him in this behalf by the Attorney General of lndia was a matter which was not justiciable and that no Court can look into the question relating to the legality or otherwise of the concurrence granted by the Chief Justice of India. In fact, Mr. Pant took great pains to emphasize and submit that it was not at all obligatory upon the Hon'ble Chief Justice of India to grant any opportunity of being heard to the petitioners or even to have their views before passing the Concurrence Order. According to Mr. Pant, however, despite there being no such obligation upon the Hon'ble CJI, before proceeding to decide the question of grant or otherwise of the concurrence, CJI had issued notices to the petitioners and the petitioners were duly served of such notices and, since despite such service, they chose not to appear before the Hon'ble CJI, the CJI proceeded to consider the question based upon the material available before him and passed the Concurrence Order. Mr. Pant also submitted that in fact the CJI was not satisfied with the material as was originally produced before him by the Central Government and. therefore, asked for additional material and it was because of these directions that no less a person than the Union Home Secretary himself tiled his personal affidavit bringing-forth fresh and new material to substantiate the request of the Central Government for the transfer of the cases from Jammu to Ajmer. Further Mr. Pant argued, some safeguards were provided in the Concurrence Order itself regarding the defence of the cases by the petitioners and the availability of some facilities to them. Mr. Pant finally argued that the impugned Notification did not suffer from any mischief or vice of extra territorial application, as was contended by Mr. S.T. Hussain because, Section 12 of the Act clearly was a provision which enabled the Designated Court to try cases involving even those offences which were not contained in the Act, but were to be found in some other Penal Laws.
14. It shall be advantageous to refer to certain important Sections of the Act. Section 1 reads as under:-
1. Short title, extent, application, commencement, duration and savings.- (1) This Act may be called the Terrorist and Desruptive Activities (Prevention) Act, 1987.
(2) It extends to the whole of India, and it applies also-
(a) to citizens of India outside India,
(b) to persons in the service of the Government, wherever they may be; and
(c) to persons on ships and air craft registered in India, wherever they may be.
(3) Sections 5, 15, 21 and 22 shall come into force at once and the remaining provisions of this Act, shall be deemed to have come into force on the 24th day of May, 1987.
(4) It shall remain in force for a period of four years from the 24th day of May. 1987, but its expiry under the operation of this sub-section shall not effect -
(a) the previous operation of, or anything duly done or suffered under this Act or any rule made thereunder or any order made under any such rule, or
(b) any right, privilege, obligation or liability acquired, accrued or incurred under this Act or any rule made thereunder or any order made under any such rule, or
(c) any penalty, forfeiture or punishment incurred in respect of any offence under, this Act or any contravention of any rule made under this Act or of any order made under any such rule, or
(d) any investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not expired.
Section 11 reads thus:-
11. Jurisdiction of Designated Courts.- (1) Notwithstanding anything contained in the Code every offence punishable under any provision of this Act or any rule made thereunder shall be triable only by the Designated Court within whose local jurisdiction it was committed, or, as the case may be, by the Designated Court constituted for trying such offence under Sub-section (1) of Section 9.
(2) If, having regard to the exigencies of the situation prevailing in a State, the Central Government is of the opinion that -
(a) the situation prevailing in such State is not conducive to a fair, impartial or speedy trial, or
(b) it is not likely to be feasible without occasioning the breach of Peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor and the judge of the Designated Court on any of them, or
(c) it is not otherwise in the interests of justice, it may, with the concurrence of the Chief Justice of India (such concurrence to be obtained on a motion moved in that behalf by the Attorney General), transfer any case pending before a Designated Court in that State to any other Designated Court within that State or in any other State.
3. Where the whole or any part of the area within the local limits of the jurisdiction of a Designated Court has been declared to be, or forms part of. any area which has been declared to be a disturbed area under any enactment for the time being in force making provision for the suppression of disorder and restoration and maintenance of public order, and the Central Government is of opinion that the situation prevailing in the State is not conducive to fair, impartial or speedy trial within the State, of offences under this Act or the rules made thereunder which such Designated Court is competent to try, the Central Government may, with the concurrence of the Chief Justice of India, specify, by notification in the Official Gazette, in relation to such Court (hereafter in this sub-section referred to as the local Court) a Designated Court outside the State (hereafter in this Section referred to as the specified Court) and thereupon -
(a) it shall not be competent, at any time during the period of operation of such notification, for such local Court to exercise any jurisdiction in respect of, or try, any offence under this Act or the rules made thereunder;
(b) the jurisdiction on which would have been, but for the issue of such notification, exercisable by such local Court in respect of such offences committed during the period of operation of such notification shall be exercisable by the specified Court;
(c) all cases relating to such offences pending immediately before the date of issue of such notification before such local Court shall stand transferred on that date to the specified Court;
(d) all cases taken cognizance of by, or transferred to, the specified Court under Clause (b) or Clause (c) shall be dealt with and tried in accordance with this Act (whether during the period of operation of such notification or thereafter) as if such offences had been committed within the local limits of the jurisdiction of the specified Court or as, the case may be, transferred for trial to it under Sub-section (2).
Explanation 1. - A notification issued under this such sub-section in relation to any local Court shall cease to operate on the date on which the whole, or, as the case may be, the aforementioned part of the area within the local limits of its jurisdiction, ceased to be a disturbed area.
Explanation 2. - For the purposes of this section, "Attorney-General" means the Attorney-General of India or, in his absence the Solicitor-General of India, or, in the absence of both, one of the Additional Solicitors-General of India.
Section 12 reads as under:-
12. Power of Designated Courts with respect to other offences. - (1) When trying any offence, a Designated Court may also try and other offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence.
(2) If, in the course of any trial under this Act of any offence, it is found that the accused person has committed any other offence under this Act or any rule made thereunder or under any other law, the Designated Court may convict such person of such other offence and pass any sentence authorised by this Act or such rule or, as the case may be, such other law, for the punishment thereof.
15. Let us now deal with the first and the foremost submission of the petitioners regarding the effect of the lapsing of the Act on 23rd May, 1995. There is no doubt that the Act, as was originally enacted was to operate for a limited period (two years in the first instance) but its life was extended from time to time and ultimately it was to remain in operation for a period of eight years from 24th May, 1987. Eight years having thus expired on 23rd May, 1995, the life of the Act came to an end as on that date. In the case of Abdul Aziz v. State of West Bengal reported in (1995) 5 Scale 169, the Supreme Court had the occasion to deal with the question regarding the lapsing of the Act and the effect of such lapsing on pending trials and the offences committed by persons before and after 23rd May, 1995. Their Lordships observed as under:-
Mr. Ramaswamy, learned Senior Counsel, appearing in support of the application, has submitted that in the Constitution Bench decision rendered in Kartar Singh v. State of Punjab (1994) 3 SCC 569: (1994 Cri LJ 3139), the constitutional validity of Section 1(4) has not been specifically gone into but consideration of such question has become important because the trial has been allowed to continue even after the lapse of the said Act. In support of his contention a reference has been made to the decision of this Court in Gopi Chand v. Delhi Administration (1959 Supp (2) SCR 87): (1959 Cri LJ 782). We may only indicate that in Gopi Chand's case this Court specifically noted that in the absence of the saving clause in the Act the trial which may commence for the offences under the said Act, would not be held valid thereafter. But in the instant case, Specific saving clause has been provided in the Act itself (TADA Act). As such, the decision in Gopi Chand's case does not apply in the facts of this case.
Mr. Ramaswamy has also submitted that in view of Section 1(4) of the Act those offenders who have committed offences prior to the expiry of the Act will be treated differently as compared to those offenders who may commit such acts after the expiry of the Act and therefore Section 1(4) can be said to have made hostile discrimination qua such prior offenders. Even this submission cannot be supported in the light of Anwar Ali's case (1952 Cri LJ 510) (SC) (Supra). In that case, as noted earlier, it was left to the discretion of the executive to pick and choose offenders for the purpose of applicability of warrant procedure or summons procedure for trial of all similarly situated accused. In the present case, the Parliament itself by enacting Section 1(4) has made a clear distinction between the two classes of offenders - (1) those offenders who have committed offences when the Act was in force and (2) persons who are not offenders under the Act at all as their activities take place after the expiry of the Act. These two classes of persons cannot be treated at par. Consequently, no fault can be found with Section 1(4) of the Act on that score.
16. Admittedly, therefore, Section 1(4) of the Act clearly stipulated that the expiry of the Act after 23rd May, 1995 shall not effect, inter alia any investigation, legal proceedings or remedy in respect of any right, privilage, obligation etc. acquired, accrued or incurred under the Act or the Rules made thereunder or for that matter any order passed under such Rules. Sub-section (4) also provided that any such investigation, legal proceedings or remedy may be instituted, continued or enforced, as if the Act had not at all expired. Applying the effect of Section 1(4) (d) of the Act, in the light of the observations made by their Lordships of the Supreme Court in the case of Abdul Aziz v. State of West Bengal (1995 (5) Scale 169) (Supra) and considering such application on the basis of the arguments put-forth by Mr. Pant, we have no hesitation in holding that the Central Government had absolute jurisdiction, power and authority to order transferof cases from Jammu to Ajmer because such transfer order was a step in legal proceedings and was additionally, a remedy available to the Central Government to ensure a fair, impartial and speedy rial. Reading Sections 1(4)(d) and 11(2) of the Act, one does have a feeling that it is the duty of the Central Government to ensure that the trial under the Act is held not only in a conductive atmosphere, but in a fair, impartial and speedy manner and if, at any time the Central Government thinks that in a particular situation prevailing in a State at a point of time, it is not possible to have a fair, impartial or speedy trial, the remedy available to the Central Government is to transfer the case from that State to another State. It is this "remedy" which has been saved in Section 1(4)(d) and the "remedy" undoubtedly relating to the pending legal proceedings, the right of the Central Government to order transfer of cases even after the expiry of the Act has clearly been saved. It is not open, therefore, to the petitioners to argue and contend that the expiry of the Act as on the date of its lapsing took away the right of the Central Government to order the transfer of the cases in terms of Section 11(2) of the Act.
17. Coming to the next contention of the petitioners that the Hon'ble Chief Justice of India did not observe the principles of natural justice by not affording the opportunity of being heard to the petitioners, one has only to look to the observations of the Supreme Court in the case of Kartar Singh v. State of Punjab (1994 Cri LJ 3139) to find out and hold that the Concurrence Order as passed by the Hon'ble Chief Justice of India is not open to judicial scrutiny because it is not justiciable and that the Court has no jurisdiction to go into any question relating to its constitutionality or legality. Their Lordships while dealing with such questions clearly observed as under:- (Paras 189, 195, 196, 198 to 200) The authority to give concurrence is vested upon an independent judicial authority who is none other than the head of judiciary in India, namely, the Chief Justice of India as a persona designata. The vesting of this power in the Chief Justice of India is evidently with the purpose of making it known that the Central Government is not seeking to obtain the concurrence either with a motivation of bias or mala fide or on being influenced by any extraneous consideration, but on a reasonable and justifiable ground taking into consideration the prerequisite essential conditions, those being - (1) that the situation prevailing in the State from which a case under Section 11(2) is sought to be transferred to some other Designated Court is not conducive to a fair, impartial or speedy trial; (2) that it is not likely to be feasible without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor and the Judge of the Designated Court or any of them; and (3) it is not otherwise in the interest of justice. Under Sub-section (3) of Section 11 the Central Government is empowered to seek the concurrence of Chief Justice of India to specify a Designated Court outside the State when it is of opinion that the situation prevailing in the State is not conducive to fair, impartial and speedy trial within the State.
Harking back to Section 11 (2) and (3) of TADA Act, the concurrence of the Chief Justice is sought for when the exigencies of the situation prevailing in the State is not conducive to a fair, impartial or speedy trial. The reasons for seeking such concurrence, of course, will be manifested in the motion moved by the law officers. The Chief Justice of India, while discharging his statutory function passes a statutory order and gives or refuses the concurrence on drawing his requisite subjective satisfaction on the materials placed before him in the motion.
It may be added, in this context that the Central Government cannot transfer any case under Section 11(2) or issue a notification under Section 11(3) in case the Chief Justice refuses to give the concurrence. To say differently, to pass an order either under Section 11(2) or 11(3) the concurrence of the Chief Justice is a sine qua non. But at the same time one should be alive to the legal position that the mere according of concurrence by itself is not an order of transfer but it only facilitates the Central Government to pass an order under either of the above provisions. In other words, the obtaining of concurrence of the Chief Justice of India is one of the specified conditions to be fulfilled or complied with before any order either under Sub-section (2) or Sub-section (3) of Section 11 is passed by the Central Government. The according of the concurrence though imperative does not compel the Government to pass any order if, for any other intervening causes, the Central Government even after obtaining the concurrence decides that there is no necessity of transferring any case. In that situation the concurrence will have no effect. Therefore, the according of concurrence which is a condition precedent for passing the transfer order by the Government is only a statutory order and not a judicial order because there is no adjudication of any his and determination of any issue. Hence the final order passed by the Government may be open to judicial review but not the concurrence accorded which is only a statutory condition to be satisfied before passing the transfer order by the Central Government.
The contention of Mr. Tarkunde is that the accused concerned who is likely to be affected by such transfer, should be given an opportunity of making his representation in compliance with principle of natural justice by the Chief Justice of India before he gives his concurrence.
The learned Additional Solicitor General contended that the Parliament is fully empowered to exclude the application of the rule of audi alteram partem when the nature of the action to be taken, the object and purpose as well as the scheme of the relevant statutory provisions are likely to be paralysed or frustrated. According to him the concurrence of the Chief Justice of India is sought to be obtained only having regard to the exigencies of the situation prevailing in a State which are not conducive to a fair, impartial or speedy trial.
As we have repeatedly pointed out, the concurrence by the Chief Justice of India under Section 11 (2) and (3) is given or denied in the discharge of his statutory function on drawing the requisite subjective satisfaction on the reasons given in the motion or any material placed before him explaining the exigencies of the situation prevailing in the State which has necessitated the Central Government to obtain the concurrence and then transfer the case. Therefore, we feel that notwithstanding the power of the Parliament to exclude the application of rule of 'audi alteram partem' in exceptional circumstances. it may be open to the Chief Justice of India in an appropriate case to have the view of the accused.
18. Giving or denial of the Concurrence of the Chief Justice of India, therefore, being in the discharge of his statutory functions on drawing the requisite subjective satisfaction has clearly been held to be non-justiciable by their lordships of the Supreme Court. It has also been held therefore, consequently that, notwithstanding exclusion of the application of the Rule "Audi Alteram Partem" in exceptional circumstances it may be open to Hon'ble Chief Justice of India in appropriate cases to have the view of the accused. As is seen from an appraisal of the facts in the present case, the Hon'ble Chief Justice of India, even though not being obliged to do so had in his discretion issued notices to the petitioners with regard to the motion presented before him by the Attorney-General. The purpose of issuing such notices was of course to afford opportunities to the petitioners of presenting their views before the Chief Justice of India so that he could consider them in true perspective, in the light of the material placed before him by the Central Government, before deciding upon the question of grant or otherwise of the Concurrence. If despite service of such notices (this fact is not disputed), the petitioners chose neither to appear before the CJI nor to present their view point before him, he had no option, but to proceed in the matter in the absence of the petitioners and decide the question in the light of material placed before him by the Central Government and after consideration of all relevant facts. In view of the clear ratio laid down by the Supreme Court in the case of Kartar Singh (1994 Cri LJ 3l39), this Court is precluded from examining the legality or otherwise of the Concurrence order. Despite the aforesaid established position of law, it is seen that the CJI after observing all the principles of natural justice, had passed an order which, in the light of the material placed before him cannot be said to be suffering from any illegality or irregularity. The passing of the Concurrence order was in the discharge of the statutory functions by the CJI and had to be based on his subjective satisfaction. The ratio in Kartar Singh is wholly unambiguous in so far as the finality attached to the concurrence order is concerned. Their lordships of the Supreme Court it Kartar Singh have clearly held that, even though the notification itself transferring the cases may be open to judicial review, such is not the case with regard to the concurrence order. In other words, the order granting the concurrence as passed by the Chie Justice of India is not open to judicial review and to that extent therefore, it can safely be said that this Court has no jurisdiction to embark upon even a discussion or consideration with regard to the merits of the concurrence order.
19. Coming to the next ground of attack as urged by Mr. Shah that the transfer of only few cases from the Designated Court at Jammu to Ajmer, whereas many other cases relating to the petitioners are still pending in Jammu would amount to gross inconvenience to the petitioners, it is observed and noted that Section 11 (2) of the Act permits the Government individual cases to seek the transfer from one Court o another, and if because of existence of certain reasons, grounds and factors, transfer of individual cases is sought, that by itself cannot be a ground to hold that the pendency of other cases involving the same accused persons should be construed as a factor for setting aside or quashing the transfer order. In our considered view such a transfer does not offend or violate Article 14 of the Constitution of India. If one prosecuting agency wants the cases to the transferred, it is not necessary that the other prosecuting agencies should also seek transfer of their cases. The latter may not feel any necessity for seeking transfer of cases as it may not be feeling any difficulty or handicap in prosecuting its cases at Jammu. In our considered view we find that the contention is not well merited.
20. The argument of Mr. R. A. Jan, learned counsel appearing for some of the petitioners that the impugned notification suffered from a legal vice and was contrary to the principles of law because it was issued in terms of Sub-section (2) of Section 11 of the Act, rather than Sub-section (3) is wholly fanciful and fallacious. As is clearly seen, Sub-sections (2) and (3) of Section 11 of the Act clearly deal with entirely different fields, reasons and grounds, for seeking transfer of the cases. Whereas Sub-section (2), relates to only the transfer of individual cases, as is clearly evident from the use of the phraseology, "transfer any case pending before a Designated Court", Sub-section (3) deals with an entirely and totally different field which has nothing to do whatsoever with the transfer of any individual cases. Sub-section (3), in fact covers a field which is very uncommonly and rarely known to the Criminal Law, viz, divesting of and taking away the very power and jurisdiction of a designated Court under the Act to exercise any jurisdiction whatsoever in respect of or to try any offence under the Act or the Rules framed thereunder and consequently the transfer of the said exercise of jurisdiction and the power to another designated Court in another State. Once again, it should be noted that whereas the transfer of an individual case under Sub-section (2) is to be sought on the ground that cither the situation prevailing in the State is not conducive for fair, impartial or speedy trial, or it is not likely to be feasible without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor or the judge or it may not be otherwise in the interest of justice, Sub-section (3) wholesomely deals with the very question of divesting and cessation of the jurisdication of the designated Court because of the reason that area where the designated Court is situated is said to have been declared to be or forming a part of an area which is a disturbed area under any law for the time being in force. What is therefore, seen is that whereas under Sub-section (2), an individual case can be transferred only and merely because of a fact relating to a fair trial, or danger to the safety and security of some persons etc. etc, the scope under Sub-section (3) is entirely different because it covers a totally different field of practically winding up a designated Court in respect of all cases under the Act and conferring of the jurisdiction instead to another designated Court and the only ground for such action is that the area which comes in the jurisdiction of such a designated Court is being or has been declared as a disturbed area under any law for the time being in force. In other words, if an area falling under the jurisdiction of a designated Court under the Act has been declared to be or forms part of any area which is disturbed under any law for this purpose and the Central Government is of the opinion that the situation prevailing in that area is not conducive to fair, impartial or speedy trial, it may on that ground alone pass an order as contemplated under Sub-section (3) whereafter jurisdiction and power of the designated Court in that area shall cease, and be available to another designated Court outside the State. In the present case, as is seen, the transfer order has been passed on the basis of the factors as prescribed for and existing in Sub-section (2). If the Central Government was of the opinion that the circumstances were such that it was not possible to have a fair, impartial or speedy trial or that the safety of the accused, the witnesses, the Prosecutor or the Judge was likely to be in jeopardy or breached, it could, in view of the power vesting in it under Sub-section (2) order transfer of the cases. There was no necessity at all for the Central Government because of the above mentioned circumstances to take recourse to Sub-section (3). In fact a perusal of the notification transferring the cases does show clearly that these were the very reasons which were mentioned by the Central Government while ordering the transfer of the cases.
21. We have very carefully considered the submission of Mr. S. T. Hussain with regard to his argument about the lack of jurisdiction by the designated Court at Ajmer to try the petitioners because of the so-called mischief of "extra territorial exercise of jurisdiction". Mr. Hussain referred to a few judgments in support of his argument, but the submission has only to be rejected because of the complete answer to be found in Section 12 of the Act. The Legislature, while conferring jurisdiction upon a designated Court to try offences created by, or under the Act, has also empowered it to try other offences with which the accused before it may be charged under the Code at the same trial, if such "other" offences are connected with the offences "under the Act." "Code" has been defined in Section 2 of the Act to mean the Code of Criminal Procedure and because of Sub-section (2) of Section 2 of the Act, the Code of Criminal Procedure 1973 (Central Act No. II of 1974) has to be construed and read as the Code of Criminal Procedure 1989 (1933 AD), J & K Act No. 23 of 1989. It is not the case of the petitioners that the offences under the Ranbir Penal Code for which they have been charged along with the offences under the Act at the same trial are not connected with each other. It is, therefore, held that under Section 12 of the Act, the designated Court at Ajmer has the jurisdiction to try the petitioners for all the offences, including those charged under the Ranbir Penal Code.
22. This now brings us finally to the last submission of Mr. Z. A. Shah and the argument of Mr. Z. A. Qureshi with regard to the question of the delay in issuing the impugned notification, related with the ground of non-application of mind and mechanical exercise of power by the Central Government as also the resultant inconvenience being caused to the petitioners for being sent to Ajmer to face the trial there. Whereas the contention of the petitioners is that the delay of more than five years between the time of the presentation of the Motion by the Attorney General before the CJI and the actual issuance of the notification by the Central Government is fatal, the argument put forth by Mr. R. Pant has all along been that this delay cannot be attributed at all to the respondents and that it was caused because of the pendency of the proceedings in this Court. Undoubtedly the Motion by the Attorney General was presented before the Hon'ble CJI sometime in the year 1991, even though the CJI treated the motion as having been presented before him on 4-1-1994 because of the fact that fresh material was asked and furnished to him by the Central Government. Again it is a fact that between 4-1-1994, when the CJI passed the Concurrence Order and 17-6-1995 when the impugned notification was actually issued, almost one and half years had elapsed. This delay has been attributed to the pendency of the proceedings in this Court, both before a learned Single Judge and later on before a Division Bench. We go a step further and observe that even after the issuance of notification on 17-6-95, almost a year has since passed, again perhaps because of the proceedings in these five cases before us. Whatever the reasons may be, and whatever their merits, the fact and the reality is that five years have since passed between the time the action was initiated by the Central Government to transfer the cases and the disposal of the litigation arising from the order actually transferring the cases. We are not at all inclined to go into any question which may directly or indirectly comment upon any reason for such delay. Similarly we are also not inclined to examine the merits of the rival contentions advanced at the Bar with regard to the question as to why it took five years for the cases to finally materialise. Any such examination or consideration will not take us anywhere. The fact before us, however, is that five years have indeed been taken, since 1991 when the Central Government for the first time thought that a situation was existing which required transfer of cases from Jammu to Ajmer. And that was somewhere in the year 1991. Is it not that between 1991 and middle of 1996, a lot of changes might have taken place in the State of J & K, particularly in Jammu area? Is it not possible to conceive that the reasons which may have compelled the Central Government in 1991 to insist for the transfer of the cases, may or may not be existing any more, as at present ? Has not the situation, with regard to militancy, terrorism, threat perceptions, security, safety and so on and so forth, undergone some changes in these past five years? Is it possible or probable that in the year 1996, in which we are presently living, a situation has now been brought about whereby the reasons as existed in the year 1991 might have either disappeared or been diluted or the situation as now existing may be such where the trial at Jammu before the designated Court is or may have become possible? Can one not help noticing that, with the passing of every year since 1991, some people might be thinking, one side or the other, that the situation now may or may not be all that gloomy as it might have been five years ago? 23. Added to all these is another angle which also cannot be lost sight of. If the situation in J & K State itself, or in Jammu region particularly has not undergone any change since 1991, during these past five years has no change taken place with regard to the choice of venue, the town or the State where the trial, on transfer is proposed to take place. Has any situation emerged during these five years which may make it possible for the Central Government, if it still thinks that the trial at Jammu is not in the best interests of justice, to consider transferring the cases to a place nearer to J & K State, rather than taking them to Ajmer? Or is there any option available to the Central Government with regard to the choice of such an intermediatory station, between Jammu and Ajmer, if it thinks that the trial cannot be held at Jammu ?
24. All our aforesaid doubts and questions are such which are based only on one factor and that is the delay of five years between the time the Central Government first initiated move for transfer of cases and today. Our doubts and questions arise only from this time lag of five years and are directly linked with the delay part. They are not connected, directly or indirectly with the merits of any controversy nor are they linked, directly or remotely with regard to the issues involved in the case. We have clearly held and observed that the power to transfer is there, the power has rightly and legitimately been exercised by the respondents, the jurisdiction is there and the operation of law is continuing in so far as the petitioners are concerned and the order transferring the cases is involved. Despite all these findings by us, we have also entertained doubts and questions with regard to the feasibility and desirability, and for that matter practicability, purely in the interest of justice and looking to the convenience of the petitioners, about the holding of the trials at present at a place other than Jammu and, the choice of the place. By raising such doubts and questions and by making such observations we should not be construed to have expressed any opinion on the merits of the doubts raised or questions asked or the observations made. Yet, interests of justice do dictate to us that we do consider this important and vital aspect of the case which may have a direct bearing on the holding of a truly fair, impartial and speedy trial which is in the interests of both the prosecution and the accused. Justice should not only be done, but should seem to have been done, is an old adage. Way back in 1991 based upon a situation, a threat perception and on an appreciation of certain factors, reasons and grounds, the Central Government thought that the trial at Jammu was not in the best interests of justice and it initiated a move to transfer the cases. In our considered view the time lag of five years since then has given rise to a reasonable and bona fide belief in the minds of the petitioners, as undoubtedly it would in the mind of all prudent persons, that the situation may have witnessed some changes where it might have become now possible to hold an impartial, fair and speedy trial at Jammu itself. Again, on a fair, objective and critical assessment and analysis of all the facts and circumstances, as would be obtaining at present, the Central Government may re-examine the question with regard to the shifting of the trial and there might be a possibility that some new facts might emerge which, on a fair assessment and equitable considerations, bring about a change in the entire perception of the Central Government. After all five years is not a small period for a change to come about. We are deliberately not expressing our opinion nor recording our comments with regard to any possible change that might have come about in these five years, because we wish to steer clearly from any such exercise by only observing unequivocally that we have no intention whatsoever of influencing the mind of the competent authority in arriving at a decision on merits and in accordance with law.
25. The Hon'ble Chief Justice of India has already granted his Concurrence for transfer of the cases as contemplated and required under Section 11(2) of the Act. As clearly held in Kartar Singh (1994 Cri LJ 3139), obtaining of the concurrence of the Chief Justice of India is one of the specified conditions to be fulfilled or complied with before any order of transfer is passed by the Central Government. The according of the concurrence though imperative does not compel the Government to pass any order if, for any other intervening causes, the Central Government even after obtaining the concurrence decides shat there is no necessity of transferring any case. In that situation, as held by their lordships, the concurrence will have no effect. In this backdrop, therefore, and in view of the fact that the concurrence has already been accorded by the CJI, we leave it entirely to the Central Government, in the light of the observations made above to reassess and re-examine the entire issue and, on consideration, if it finds that the transfer of the cases is imperative, unavoidable and in the interests of justice, based upon the grounds contemplated under Section 11(2) of the Act, it may pass appropriate orders. Otherwise, on similar considerations, if it finds that the situation has undergone change and that the reasons, causes or the grounds, as were in existence earlier are no more existing at present, it may even decide not to pass any orders transferring the cases. We refrain from expressing any opinion or comments. We are not in a position ourselves to substitute our opinion with that of the Central Government. The Central Government alone, in the situation in which it is placed is competent to decide about all aspects of the matter. It is for the Central Government alone to assess the situation, examine all questions and take into account all relevant material for arriving at an appropriate decision.
26. For what has been said above, finally we are of the view that the question regarding the transfer of cases and the holding of trial at Ajmer at this stage does require reconsideration, only and merely, because of the time lag of five years which has since occurred and for no other reason. For that reason alone and none other, we quash and set aside the impugned notification. We leave it open entirely for the Central Government and other respondents in the petition to reconsider the question about the transfer of cases. If upon such reconsideration and re-examination, based upon such material as the Central Government may wish to consider and examine, it conies to the conclusion that the situation still is not conducive for an impartial, fair and speedy trial at Jammu or in any other part of J & K State, or there exist other reasons or grounds which do not permit the holding of a fair, speedy or impartial trial, it shall be open to the Central Government to issue a fresh notification on the subject and pass appropriate orders transferring the cases to another place keeping in view the interests of the prosecution as well as the accused with regard to the availability of facilities, convenience of the parties, the counsel defending the accused and so on and so forth.
G.D. Sharma, J.
27. I have read with interest the lucid and elaborate judgment prepared by my learned brother Gupta J. I agree with him that the order passed by the Home Ministry, Government of India, New Delhi, with the concurrence of the Hon'ble Chief Justice of India transferring the cases (specified in the said notification) pending before the designated Court at Jammu and Kashmir against the petitioners and respondents No. 5 to 11 is beyond the pale of any challenge on constitutional or legal grounds. However, with due respect, I am unable to fall in line with him in taking the view that the circumstances impelling the Central Government to transfer these cases to Ajmer having disappeared, the impugned notification also perishes with such disappearance. Whether or not those circumstances still exist and if exist to what extent, this Court has no source or means to collect any evidence or material to justify the conclusion that such circumstances have ceased to exist.
28. We would be clearly over-reaching our jurisdiction in arriving at this conclusion in regard to the existence or non-existence of the circumstances or their extent as they obtained in the year 1991. when motion for transfer of these cases was moved before the Hon'ble Chief Justice of India. As also observed by my learned brother, we should have simply left to the Central Government to reconsider the ground realities of law and order situation in the State of Jammu & Kashmir and think of the trial of the petitioners and respondents No. 5 to 11 being held in the State itself and not gone a step further in quashing the earlier order issued by it.
29. By striking down the notification on the ground of delay, we have virtually taken away its right from the Central Government to re-assess the situation in the State and take a decision in regard to the Trial of the cases in the State itself. The only choice that we have now left with the Central Government is of issuing a fresh order again transferring these cases to Ajmer. We could not have done so by either importing our personal knowledge or by basing our aforesaid conclusion on the arguments of the learned counsel for the petitioners and respondents No. 5 to 11. Even otherwise also, innocent or political killings and bomb blasts are repeatedly taking place ever since the eruption of militancy in the Stale of Jammu & Kashmir.
30. I would, therefore, hold that the impugned notification issued by the Government of India with the Concurrence of Hon'ble Chief Justice of India is still valid and cannot be quashed on any ground whatsoever. The Central Government, if so satisfied, can still take a different view and have the petitioners tried by the designated Court in the State itself.
Order of the Court.
31. Whereas this judgment is based on agreement with regard to all issues involved, except the one relating to the quashing and setting aside of the impugned notification, a difference of opinion has cropped up between the two of us with regard to the conclusions arrived at by us relating to the fate of the impugned notification. On such difference of opinion having thus come up, we direct that the file of the ease be put up before the Hon'ble Chief Justice for reference to a Bench in terms of Rule 23 (2) of Jammu and Kashmir High Court Rules, 1975.
32. We order accordingly.