Call for comments of concerned Judge from whom the case is sought to be transferred on ground of bias: Delhi High Court enumerates guidelines for dealing with transfer applications
Justice Swarana Kanta Sharma [28-05-2024]
 

Read Order: DIRECTORATE OF ENFORCEMENT v. AJAY S. MITTAL[DEL HC- CRL.M.C. 4014/2024]

Tulip Kanth

New Delhi, May 29, 2024: While remanding a transfer petition back to the District & Sessions Judge, the Delhi High Court has observed that the court proceedings which are widely reported these days, including the beautiful banters between bar and bench who share a bond of bonhomie, have to be safeguarded from any onslaught.

The facts of the case were that pursuant to the completion of investigation in the ECIR, the Directorate of Enforcement had filed a prosecution complaint against 76 accused persons, out of which 72 accused persons were summoned. On 11.01.2024, the respondent and his wife Archana S. Mittal had been arrested in relation to the ECIR. Thereafter, Archana S. Mittal was granted bail by the Court of Special Judge after 3 days. As disclosed in the petition, the said bail order of Archana S. Mittal was challenged. After completion of further investigation, a supplementary prosecution complaint was filed against 84 accused persons including the respondent herein, who are yet to be summoned.

The respondent Ajay S. Mittal had preferred an application seeking regular bail. The hearing on bail application was adjourned on several occasions, mainly due to adjournments sought on behalf of the respondent/accused. On 18.04.2024, a transfer petition was filed on behalf of respondent seeking transfer of the proceedings from Special Judge (PC Act) CBI-16 to some other Court on the ground of apprehension of bias.The same was allowed by the District & Sessions Judge. Aggrieved, the ED approached the Delhi High Court.

The Special Judge was accused of making a statement after adjourning the bail application of the respondent at request of respondent himself, granting him the date of hearing of his choice only. On the basis of such accusation, the respondent had sought transfer of his bail application to some other court, since he apprehended that justice would be denied to him in the said Court. 

Referring to the judicial precedents pertaining to the apprehension of bias, the Single-Jude Bench of Justice Swarana Kanta Sharma  said, “...the approach of the Courts in India has been to analyse the relevant attending circumstances in its entirety to reach a conclusion whether there has been possibility of bias to the extent that should persuade the concerned Sessions Judge, to transfer the case from one Court to another.”

The Bench noted that the focus has to be on actual circumstances of the case to decide as to whether those circumstances and facts give rise to likelihood of bias. “...In this Court’s opinion, the relationship between the staff and the judge has to be treated as confidential and it should not become a subject of scrutiny by the litigants or the lawyers. It is an area that demands respect and privacy”, it added.

In the case at hand, on the mere saying of one side that the Special Judge had made the alleged comment, without attempting to know the side of story of that Judge, the case had been transferred to another judge. Rather in the present case, it was also essential to have called for the comments of the staff to whom the learned Special Judge had allegedly made this comment.The Bench opined that it was thus essential for the learned District and Sessions Judge to hear the perspectives of both parties before passing an order of transfer of the case.

The High Court held that even if it is taken to be true that the Special Judge in question did utter the words as alleged against him, however it did not reflect any real apprehension of bias towards the respondent and any unfair favouring to the prosecuting agency as it was not known as to in what context the alleged comment was passed and in relation to which case.

Moreover, a stray general comment by a judge to one of his staff members who is not a participant in the decision-making process, and has no interest in the outcome of any case, cannot become a ground to infer that the learned judge was saying something in context of the similar case so as to invite allegations of bias. In this case, there was nothing on record to reveal or suggest any bias due to desire of the Special Judge which favoured the prosecution as there are only two parties before the judge, infecting/influencing his views to the extent of adversely denying justice to the applicant.

“This Court therefore is of the opinion that mere suspicion of bias when there was no foundational context, reason or facts, cannot amount to reasonable apprehension of likelihood of bias on the part of the learned Special Judge”, it opined while also adding, “ It will be grave injustice if a case is transferred from a criminal court merely at the request of a party without considering the basis for the apprehension of bias.”

The Bench made it clear that there were no sufficient reasons to transfer the matter from the concerned Special Judge to another Judge, without calling for comments from the Trial Judge. Thus, setting aside the impugned order, the Bench remanded the matter back to the District and Sessions Judge to decide the transfer petition afresh, after calling for comments from the concerned Special Judge. 

The Bench concluded the matter by culling out following guidelines to be followed by the Principal District & Sessions Judges while dealing with transfer applications filed before them:

• The comments of the concerned Judge from whom the case is sought to be transferred on ground of bias will be called mandatorily.
• The application will be decided after considering the said comments and in light of principles of real apprehension of bias.
• The other principles regarding the attending circumstances being considered will also be taken into consideration at the time of deciding such applications.