Delhi High Court
Joginider Singh & Ors. vs C.B.I. & Ors. on 30 November, 2015
Author: Siddharth Mridul
#5
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30.11.2015
TR.P.(CRL.) 42/2015 & CRL.M.A.13562/2015 & CRL.M.A. 15314/2015
JOGINIDER SINGH & ORS. ..... Petitioners
Through: Mr Colin Gonsalaves, Sr. Advocate
Mr H.S.Phoolka, Sr. Advocate with
Ms Kamna Vohra, Mr Jagjit Singh
Chhabbra, Mr Divyajyoti,
Mr Gurbaksh Singh and Ms Shilpa
Dewan, Advocates for Petitioners.
Mr Avtar Singh and Mr Lakhmi
Chand, Advocates with Mr J.S. Jolly
for Petitioner No.3/DSSMC.
versus
C.B.I. & ORS. ..... Respondents
Through: Mr D.P.Singh, Ms Tarannum Cheema,
Mr Raj Kiran Vats and Ms Hiral
Gupta, Advocates for CBI.
Mr Anil Kumar Sharma, Advocate for
R-2 & R-3.
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
SIDDHARTH MRIDUL, J (ORAL)
1. The present is a petition under Section 407 of the Code of Criminal
Procedure, 1973 (in short 'the Code') essentially praying for transfer of
Sessions Case No.27/2010 titled CBI v. Sajjan Kumar and Ors. pending
before District and Sessions Judge, Karkardooma Courts, Delhi, to some
other competent court having jurisdiction.
2. At the outset, counsel appearing on behalf of the transfer petitioners as
well as counsel appearing on behalf of all the respondents state that they
withdraw any and all allegations made against the District and Sessions
Judge before whom the subject matter is pending as well as any allegations
made against counsel appearing on behalf of the parties before the Sessions
Court as well as before this court, unconditionally. Counsel appearing on
behalf of the parties state that the pleadings in this behalf may be expunged.
Ordered accordingly.
3. The present case relates to the unfortunate incidents that occurred in
the aftermath of the assassination of Mrs. Indira Gandhi, the then Prime
Minister of India. The case is yet to attain closure.
4. The provisions of Section 407 of the Code read as follows:
"407. Power of High Court to transfer cases and
appeals. - (1) Whenever it is made to appear to the High
Court -
(a) that a fair and impartial inquiry or trial
cannot be had in any Criminal Court
subordinate thereto, or
(b) that some question of law of unusual
difficulty is likely to arise, or
(c) that an order under this section is required
by any provision of this Code, or will tend to
the general convenience of the parties or
witnesses, or is expedient for the ends of
justice,
it may order-
(i) that any offence be inquired into or tried by
any Court not qualified under sections 177
to 185 (both inclusive), but in other respects
competent to inquire into or try such
offence;
(ii) that any particular case or appeal, or class of
cases or appeals, be transferred from a
Criminal Court subordinate to its authority
to any other such Criminal Court of equal or
superior jurisdiction;
(iii) that any particular case be committed for
trial to a Court of Session; or
(iv) that any particular case or appeal be
transferred to and tried before itself.
(2) The High Court may act either on the report
of the lower Court, or on the application of a party
interested, or on its own initiative:
Provided that no application shall lie to the High
Court for transferring a case from one Criminal Court to
another Criminal Court in the same sessions division,
unless an application for such transfer has been made to
the Sessions Judge and rejected by him.
(3) Every application for an order under sub-
section (1) shall be made by motion, which shall, except
when the applicant is the Advocate- General of the State,
be supported by affidavit or affirmation.
(4) When such application is made by an
accused person, the High Court may direct him to execute
a bond, with or without sureties, for the payment of any
compensation which the High Court may award under
sub- section (7).
(5) Every accused person making such
application shall give to the Public Prosecutor notice in
writing of the application, together with copy of the
grounds on which it is made; and no order shall be made
on of the merits of the application unless at least twenty-
four hours have elapsed between the giving of such notice
and the hearing of the application.
(6) Where the application is for the transfer of a
case or appeal from any subordinate Court, the High
Court may, if it is satisfied that it is necessary so to do in
the interests of justice, order that, pending the disposal of
the application, the proceedings in the subordinate Court
shall be stayed, on such terms as the High Court may
think fit to impose:
Provided that such stay shall not affect the
subordinate Court' s power of remand under section 309.
(7) Where an application for an order under sub-
section (1) is dismissed, the High Court may, if it is of
opinion that the application was frivolous or vexatious,
order the applicant to pay by way of compensation to any
person who has opposed the application such sum not
exceeding one thousand rupees as it may consider proper
in the circumstances of the case.
(8) When the High Court orders under sub-
section (1) that a case be transferred from any Court for
trial before itself, it shall observe in such trial the same
procedure which that Court would have observed if the
case had not been so transferred.
(9) Nothing in this section shall be deemed to
affect any order of Government under section 197."
5. A plain reading of the above provision reveals that it stipulates that the
High Court may transfer any case under this provision if it considers it
expedient so to do to meet the ends of justice. The provision further
stipulates that any case can be transferred from a criminal court subordinate
to the High Court to any other criminal court of equal or superior
jurisdiction.
6. In the present case it is observed that all the allegations levelled
against the concerned judicial officer have been unconditionally withdrawn
by the petitioners. This withdrawal is emphasized and underlined.
7. It is one of the cardinal principles of administration of justice that
"Justice must not only be done but must be seen to be done."
8. After having heard counsel for the parties, it is my considered opinion
that in view of the dictum afore-stated it would be necessary and expedient
to transfer the subject case in the interest of justice, in view of the avoidable
controversy that has been unnecessarily generated and list it before another
criminal court of equal jurisdiction. It is made clear that the transfer of this
case from the court of District and Sessions Judge, Karkardooma Courts,
Delhi, is warranted in order to protect and uphold the dignity and majesty of
the judicial system and to ensure the faith of citizens in courts of law. The
direction proposed to be issued is with a view to render the judicial officer
immune from controversy and to protect his impeccable reputation. It is,
therefore, reiterated that the present order is not a comment on the conduct of
the judicial officer hearing the present case save and except to reaffirm the
faith that the public reposes in that judicial officer.
9. In view of the foregoing, with the consent of the parties and after
recording their no objection in this behalf, the Sessions Case No.27/2010
titled CBI v. Sajjan Kumar and Ors pending before District and Sessions
Judge, Karkardoom Courts, Delhi is transferred to the court of District and
Sessions Judge, Patiala House Courts, New Delhi, forthwith. The District
and Sessions Judge, Karkardooma Courts, is directed to transmit the papers
and proceedings of the subject case to the court of District and Sessions
Judge, Patiala House, forthwith.
10. With the consent of the parties appearing before this court the District
and Sessions Judge, Patiala House is requested to video-graph the entire
proceedings in the subject trial to be conducted before it. Counsel appearing
on behalf of the private respondents undertakes to cover the entire costs of
the said video recording. The offer is accepted and the private respondents
are directed to file an undertaking in this behalf before the District and
Sessions Judge, Patiala House, on the next date of hearing.
11. The parties and their counsel are directed to appear before the District
and Sessions Judge, Patiala House, in the first instance on 08.12.2015 for
further proceedings in accordance with law.
12. It is made clear that the above order has been occasioned in the
interest of justice and with the consent of parties appearing before this court.
13. A copy of this order be transmitted to the District and Sessions Judge
Karkardooma Courts, Delhi as well as to the District and Sessions Judge,
Patiala House Courts, New Delhi, by Express Messenger today.
14. With the above directions the present petition is disposed of.
SIDDHARTH MRIDUL, J
NOVEMBER 30, 2015
mk
