Final Order 2

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MS. ANJU BAJAJ CHANDNA
PRINCIPAL DISTRICT & SESSIONS JUDGE-CUM-
SPECIAL JUDGE (PC ACT) CBI ROUSE AVENUE
DISTRICT COURTS, NEW DELHI
Misc Application No. DJ ASJ/274/2023
CNR No. DLCT11-000750-2023
Momin Ali vs CBI
Appearances: Sh. Sandeep Sharma, Ld. Counsel for
petitioner/applicant.
Sh. Praneet Sharma, Ld. Sr. PP for CBI
31.10.2023
ORDER
1. On behalf of applicant / accused, the present application
has been moved under Section 408 Cr.P.C whereby he seeks
transfer of the case 'CBI vs Momin Ali & Anr.' from the court of
Sh.Raghubir Singh, Ld. Special Judge, CBI.
2. The main grievance as put forth in the application has been
that firstly, an application for discharge was dismissed by the
court with a cost of Rs.10,000/- and the judgments cited on
behalf of accused were not cited in the order. Secondly, on
20.03.2023, the adjournment was sought by the defence Counsel
for cross examination of PW-3 and the same was allowed subject
to the cost of Rs.20,000/-. Thereafter, on 05.10.2023, PW-15
Yograj Meena was examined and when the matter was fixed for
14.10.2023 for evidence, PW-15 was cross examined on behalf
of accused no.2 but the request for deferment of cross
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examination was made on behalf of accused no.1 as main
Counsel was unwell. On 14.10.2023, the defence Counsel was
unable to appear due to illness and therefore application for
adjournment along with medical prescription was moved but the
Ld. Judge became furious and adjourned the matter for
16.10.2023.
3. On 16.10.2023 again the request for adjournment was
made due to illness of the defence Counsel who even joined
through Video Conferencing but Ld. Judge refused to entertain
the genuine request and even reprimanded the applicant and
asked him to change the lawyer and conclude the cross
examination. Ld. Judge warned to close the opportunity of cross
examination and fixed the matter for the next day i.e. 17.10.2023.
4. According to the applicant, he has reasonable apprehension
that he would not get fair trial and justice from the court. The
court is prejudiced and biased against the applicant and his
counsel.
5. On behalf of CBI, it is stated that application is abuse of
the process of law and interference with the administration of
justice. The adjournments cannot be granted in a casual manner
and witnesses cannot be asked to appear repeatedly. The
judgment of Madan Lal vs CBI/ACU-III,2004 SCC Online P
& H 612 has been relied upon wherein it was observed as under:-
13. The law is well settled that a litigant cannot
choose a Bench of his choice. It is only in exceptional
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circumstances where the existence of "bias" or ";
likelihood of bias", when apparent on the facts and
circumstances of a case that the High Court invokes its
discretionary powers under Section 407, Cr .PC to
transfer the trial of such case to another Court of
Competent Jurisdiction, In the absence of an
allegation of pre-existing bias, the power to transfer a
case can be invoked only sparingly. Now-a-days, there
is growing tendency amongst disgruntled litigants,
often ill advised, just to hoodwink the court. The
allegations levelled by such litigants, therefore, need to
be scrutinized with utmost care and circumspection. It
cannot be overlooked that transferring a case merely
on the asking of an apprehensive litigant would not
only lead to scandalizing the Court but browbeating
the Presiding Officer also, thereby causing direct
interference in the independent and fair administration
of justice.
6. CBI has further relied upon the judgment of Hon'ble
Supreme Court titled Usmangani Adambhai Vohra v. State of
Gujarat & Anr. (2016) 3 SCC 370 wherein it was observed as
under :-
An order of transfer is not to be passed as a matter of
routine or merely because an interested party has
expressed some apprehension about proper conduct of
the trial. The power has to be exercised cautiously
and in exceptional situations, where it becomes
necessary to do so to provide credibility to the trial.
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There has to be a real apprehension that there would
be miscarriage of justice. The power is to be
exercised cautiously and in exceptional situations,
where it becomes necessary to do so to provide
credibility to trial.
7. On the contrary, Counsel Sh. Sandeep Sharma, for the
applicant submitted that apprehension of the petitioner is strong
and arises out of the circumstances whereby matter deserves to
be transferred to some other court.
8. I have given due consideration to the rival contentions.
9. The power to transfer, withdraw or assignment of the
matters is discretionary but discretion must be exercised
judiciously and on well founded reasons. When a matter is
transferred from one court to another, on the basis of
apprehension of bias, it has larger repercussions. It not only
derails the trial but is also demoralizing and demotivating for the
judge concerned. Therefore, the transfer cannot be allowed on
flimsy grounds as also law is well settled in this regard.
10. In the present matter, so far as the order dismissing the
application for discharge and order whereby adjournment was
granted subject to the cost of Rs.20,000/- are concerned, they are
judicial orders and could be very well be challenged in the High
Court. The Ld. Judge on every occasion passed a reasoned and
speaking order. This court is not sitting in appeal so as to give
any remarks about the impugned orders.
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11. So far as the grievance that matter was not adjourned
despite the illness of defence Counsel, I find on perusal of the
order-sheets that matter was infact adjourned on 14.10.2023 for
two days considering the illness of defence Counsel wherein rest
for two days was prescribed. The matter was again adjourned on
16.10.2023 and was fixed for 17.10.2023. Ld. Defence Counsel
admittedly appeared on 17.10.2023 and concluded the cross
examination of PW-15.
12. On going through the record, I find that Ld. Judge has been
dealing with the matter properly by following the rules of natural
justice. It is true that Ld. Judge has been sensitive and observed
about the conduct of the accused whereby the trial is being
delayed but this cannot be the reason to doubt the neutrality and
impartiality of Ld. Judge. The apprehension of bias as perceived
by the applicant / accused is not correct as on every occasion
favourable orders cannot be expected. It is obligation of the court
to see that frequent and unnecessary adjournments are not
granted to either side.
13. A strong or strict order or observations made by a judge
cannot itself be the basis to conclude that judge is not holding the
trial in a fair and impartial manner. It is the duty of the court to
see that unnecessary adjournments are not sought either by the
prosecution or by the defence. While conducting a trial
especially in grave offences, the judge has to be in a controlling
position. A Judge is supposed to conduct the proceedings
without fear and favour. During the course of proceedings, some
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orders may favour prosecution and some may favour defence but
such orders cannot be made the basis of attributing bias to the
Judge concerned. It is possible that judge may come across
conflict for various valid reasons such as conduct of the parties,
counsels and witnesses, but this cannot mean to say that judge is
not capable to hold a fair or impartial trial. Rather defence and
prosecution must accept all orders with grace even if they are
adverse to their stand.
14. Judicial orders are open to scrutiny by higher courts and
just because some orders are against a particular side, cannot be a
ground to transfer the case. The litigants cannot be permitted to
seek the transfer in order to avoid a strict judge or unfavourable
orders.
15. Having considered the material placed on record and rival
contentions, I am of the opinion that this is not a fit case for
allowing transfer of the case to any other court. Accordingly,
transfer application is dismissed.
16. Copy of order be sent to the Ld. Trial Court for
information.
17. Transfer application file be consigned to the record room.
(Anju Bajaj Chandna)
Principal District & Sessions Judge-
cum-Special Judge (PC Act) (CBI),
Rouse Avenue District Court
New Delhi/31.10.2023
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