Delhi High Court: In a petition filed by the Enforcement Directorate (‘ED’) seeking quashing of the impugned order dated 01-05-2024 by the Principal District and Sessions Judge-cum-Special Judge, Rouse Avenue District Court, New Delhi (‘District and Sessions Judge’) wherein the case was transferred from the concerned Special Judge to another judge without calling for comments from the Special Judge., a Single Judge Bench of Swarna Kanta Sharma, J. set aside the impugned order stating that the reasons to transfer the case from the Special Judge were insufficient and also issued guidelines to be followed by the District and Sessions Judge while dealing with transfer applications.
Background
In the present matter, after the investigation in the Enforcement Case Information Report (‘ECIR’) was completed, ED filed a prosecution complaint against 76 accused persons, of whom 72 were summoned. On 11-01-2024, the respondent and his wife were arrested in relation to the ECIR.
On 14-02-2024, the wife was granted bail by the Special Judge, CBI-16. The bail order was challenged before this Court. Thereafter, the respondent also preferred an application seeking regular bail, to which the prosecution replied on 13-03-2024. The hearing was adjourned on several occasions, which was mainly sought by the respondent.
A transfer petition was filed by the respondent seeking the transfer of the proceedings from the Special Judge, CBI-16, to some other Court based on an overheard conversation between the Judge and the staff member. This was allowed, vide the impugned order dated 01-05-2024, by the District and Sessions Judge.
ED submitted that the reason cited in the petition seeking transfer of bail application was that after the hearing on 10-04-2024 concluded and after all the counsels had left the courtroom, the respondent’s wife, who was watching the hearing online, allegedly heard the Judge passing the following comment — “lene do datein, ED matters me kaunsi bail hoti hai”. It was also submitted that the order dated 10-04-2024 disclosed the names of all attending parties, but the wife’s presence was not reflected.
Analysis and Decision
To analyze the allegations of bias, the Court referred to Section 408 of CrPC and stated that the Sessions Judge has the power to transfer a case from one criminal court to another, if it is expedient for the ends of justice.
The Court opined that statements can be easily misinterpreted, misheard, or partially heard when taken out of context. Without a complete understanding of the surrounding circumstances, any action taken based on such one-sided statements would be unjust.
The Court referred to Usmangani Adambhai Vahora v. State of Gujarat, (2016) 3 SCC 370, and stated that it is essential to recognize that not all conversations overheard during video conferences are relevant to the cases being discussed and should not automatically be considered a part of the judicial proceedings.
The Court noted that even though the District and Sessions Judge noted that the allegations made in the transfer petition were supported by an ‘affidavit’, no ‘affidavit’ was filed by the wife and that the only document annexed to the transfer petition was a notarized copy of an email dated 17-04-2024 that was sent to the District and Sessions Judge, which cannot be compared to an ‘affidavit’ as it carried no legal weight.
Further, the Court noted that it was strange that there was no record of the wife logging in for the alleged proceedings and that she waited for seven days to send an email to the District and Sessions Judge to raise her grievance. The Court opined that there was no evidence to even reasonably substantiate the allegations of bias against the Special Judge.
The Court stated that holding the Special Judge biased toward the respondent would be too far-fetched since any other circumstances to this effect were absent. Thus, the Court opined that there was no legitimate foundation or premise on which the respondent could have apprehended bias on the part of the Special Judge.
Further, the Court stated that the oversight of not providing an opportunity for the Special Judge to present his side of the story had undermined the basic tenets of fairness and natural justice. Thus, the Court said that it was inappropriate to have transferred the matter without calling for comments from the Special Judge.
The Court stated that the relationship between the judge and staff must be treated as confidential and should not be scrutinized by the litigants or the lawyers since it demands respect and privacy. Hence, The Court was inclined to set aside the impugned order dated 01-05-2024 because there were no sufficient reasons to transfer the matter. Further, the Court remanded the matter and directed the District and Sessions Judge to decide the transfer petition afresh.
The Court also directed the Principal District and Session Judges to follow these guidelines while dealing with transfer applications filed before them:
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Comments of the Judge from whom the matter is sought to be transferred on the ground of bias must be called for mandatorily.
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The application must be decided after considering the comments and in light of the principles of real apprehension of bias.
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Other principles regarding the circumstances of the case must also be taken into consideration.
While disposing of the petition, the Court directed the Registrar General to forward a copy of this judgment to all Principal District and Sessions Judges of Delhi and the Director of Delhi Judicial Academy to take note of its contents and inclusion in the appropriate programme.
[Enforcement Directorate v. Ajay S. Mittal, 2024 SCC OnLine Del 4047, Decided on 28-05-2024]
Advocates who appeared in this case :
For Petitioner — Special Counsel Zoheb Hossain, Advocate Kartik Sabharwal
For Respondent — Sr. Advocate Sandeep Sethi, Sr. Advocate Mohit Mathur, Advocate Sanyam Khetarpal, Advocate Deepak Goel, Advocate Shreya
