STATE OF HARYANA Vs. KUNDAN, TEK CHAND

JUDGEMENT

(1.) THE facts giving rise to this reference made by the learned Sessions Judge, Gurgaon, under Section 395 Cr. PC in brief are as under :- In this case (State v. Kundan and others under Sections 148/149, 427 & 436/149, 452, 380 and 302 IPC), the prosecution moved this Court with an application dated 13.6.1985 praying that in addition to the charges already framed against the accused persons, they also deserved to be charge-sheeted under the Provisions of the Terrorists and Disruptive Activities (Prevention) Act, 1985, to be designated as the Act here-in-after, as the acts of arson and murder as imputed to the accused involved in this case also attracted the application of the provisions of the Act. Accordingly, I heard Sh. Onkar Singh Yadav, the learned Public Prosecutor and Sarvshri N.C. Jain, S.P. Gupta, H.S. Jain and Khazan Singh, Advocates Gurgaon, learned counsel for the accused and disposed of the above mentioned application moved on behalf of the prosecution vide order of even date i.e. 13.6.1985. In para No. 9 of that order, I observed as under :-

(2.) THE Designated Court at Faridabad presided over by Sh. R.K. Gupta, created by the Haryana Government vide Haryana Government Home Department Gazette Notification No. SO.59/CA/31/85/S7/85 dated 30.5.1985, however, sent back the case file to this Court vide order dated 15.6.1985. It would be quite apposite and pertinent to mention here that the Designated Court did not specifically hold that the case was to triable by it or that my order dated 13.6.1985 was erroneous in any way. On the other hand, it was observed by that Court in para No. 3 of its order, dated 15.6.1985, among other things that 'without elaborating further and without going into the correctness or otherwise of the view taken by the learned judge and with respects to him, I refuse to take cognizance of the case either as Sessions Judge, Faridabad, or as Designated Court under the 1985 Act. The file be sent back to the Sessions Judge, Gurgaon, immediately."

(3.) SECONDLY , in my considered view, my order dated 13.6.1985 could not be styled as an administrative one by any manner or means and the same was a judicial one to all intents and purposes. The Learned counsel on both sides had also endorsed my view to the effect that the case was not to be routed through the Hon'ble High Court in the passing of my order dated 13.6.1985, particularly so because all appeals under the Act were to be taken to the Hon'ble Supreme court and not to the Hon'ble High Courts it may be reiterated here that by no stretch of imagination or show of reason, my order dated 13.6.1985 could be deemed to be in the nature of the transfer of the case from my Court to the Designated Court.