(Prayer: This petition is filed under Sec.407 of Cr.P.C. to allow this petition and consequently transfer the Spl.CC No.146/09 pending on the file of the XXIII Addl. CC and Sessions Judge and Spl. Judge, Prevention of Corruption Act, Bangalore Urban Dist., Bangalore City to any other court in Bangalore or Sessions Judge in any other District having jurisdiction to try the offence under Secs.7, 8, 13(1)(d) R/w Sec.13(2) of Prevention of Corruption Act 6, 1998.)
1. This petition is filed seeking to transfer the case in Spl.CC No.146/2009 pending on the file of XXIII Addl. City Civil Sessions Judge and Special Judge, Bangalore.
2. It is the case of the petitioner that petitioner is the sitting MLA of KGF Assembly Constituency and a case under Sec.7, 8, 13(1)(d) R/w Sec.13(2) of Prevention of Corruption Act has been registered against him which case is now pending before the aforesaid court. It is the contention of the petitioner that he appeared before the court on 28.10.2011 and he was taken to custody without any notice and thereafter he was released from the custody on 31.10.2011. It is stated in the complaint that the Presiding Officer is biased against him because brother of the Presiding Officer is a stamp vendor in Bangarpet Sub-Registrar’s Office premises and that he belongs to Congress Party whereas petitioner is an MLA of BJP party. It is his contention that Presiding Officer’s brother Sri. Badrinath had declared that he would see that petitioner would sit in jail and therefore he has no faith in the said Presiding Officer. It is further submitted by him that the Presiding Officer was a practicing lawyer at KGF before his appointment as a Sessions Judge and that he has got innumerable friends in the said area which also falls with the constituency of the petitioner as an MLA. It is also stated by the petitioner in his petition that Presiding Officer carries an adverse impression against all politicians and is pursuing the said case in utmost vigor. It is the case of the petitioner that injustice would be done in his case if the case is continued in the said court and hence prays for transfer of the said case to any other court.
3. Heard Sri. Ashok Harnahalli, learned senior counsel for the petitioner and Sri. Belliappa, learned counsel appearing for the Lokayukta.
4. Learned senior counsel appearing for the petitioner submits that petitioner has no faith in the Presiding Officer since Presiding Officer hails from the same place from where petitioner comes. It is also submitted by the learned Senior Counsel that Presiding Officer was a practicing advocate at KGF and that the said officer has got many colleagues and clients who are in a position to influence the Presiding Officer against the petitioner. He has also submitted that brother of the Presiding Officer by name Mr. Badrinath is a stamp vendor in the premises of Sub-Registrar’s Office at Bangarpet and that in that capacity he comes into contact with many persons of different avocations in life. He also submits that petitioner has filed affidavits of B.M. Ramachandra and Amarendra Mouni to support his contention that on 29.10.2011 these two people have met Mr. Badrinath who is alleged to have told them that he has influenced his brother, Presiding Officer, to cancel the bail of the petitioner and therefore petitioner does not have any faith that he would get justice at the hands of the said Presiding Officer. It is also submitted by him that the fact that when he presented himself before the court on 28.10.2011 petitioner was abruptly sent to jail without any notice and without any hearing thus violating the principles of natural justice indicates that the Presiding Officer is totally biased against the petitioner. He has submitted that the very act of the Presiding Officer in sending this petitioner into custody without hearing itself indicates that the Presiding Officer is biased and no justice could be secured at the hands of the said Presiding Officer. Learned Senior Counsel has referred to the following Rulings in support of his contentions:
i) 2007 (3) SCC-62 SATISH JAGGI Vs. STATE OF CHATTISGARH AND OTHERS.
“Criminal Procedure Code, 1973-S.407-Transfer of criminal proceedings to different court-Petition for-Apprehension as to bias in favour of accused because brother of Sessions Judge concerned i.e., B and father of accused i.e., F were very close to each other-B and F belonged to same political party-B was a sitting MLA and F was a former Chief Minister-Held, though the present Judge showed no disinclination to hear the matter and would have acted in true sense of a judicial officer, still in order to ensure that justice is not only done but also seen to be done, and considering the peculiar facts of the case, it would be appropriate if the High Court transfers the case to some other Sessions Court-However, clarified that the said the said transfer must not be construed as casting any aspersion on the Sessions Judge concerned.”
ii) 2009 (6) SCC-260 Cpt. AMARINDER SINGH Vs. PRAKASH SINGH BADAL AND OTHERS.
“A. Criminal Procedure Code, 1973-Ss.406, 407 and 177-Transfer of case from one place to another-Apprehension of miscarriage of justice or bias, due to which trial would not be conducted fairly at the existing place, and public confidence would be seriously undermined-Transfer on ground of-When available-Held, the apprehension should not be imaginary-It should be real and reasonable-Trial against incumbent Chief Minister, his son who was Deputy Chief Minister and other relatives/close associates of the Chief Minister, on the charge of corruption-Petition for transfer filed by a political rival, pointing out certain set-backs in the trial and perceived anomalies in conducting the trial after incumbent Chief Minister assumed office-On appreciation of relevant facts (without going into merits), Supreme Court finding that apprehension was not real-On the contrary, many of the prosecution witnesses, including the complainant, were disowning the statements already made by them during the period political rival was the Chief Minister-Shifting of trial from a State of Punjab court to a court in Delhi therefore not granted.”
iii) 1995 (6) SCC-744 P.K. GHOSH, IAS and ANOTHER Vs. J.G. RAJPUT
“A basic postulate of the fule of law is that ‘Justice should not only be done but it must also be seen to be done’. If there be a basis which cannot be treated as unreasonable for a litigant to expect that his matter should not be heard by a particular Judge and there is no compelling necessity, such as the absence of an alternative, it is appropriate that the learned Judge should recuse himself from the Bench hearing that matter. This step is required to be taken by the learned Judge not because he is likely to be influenced in any manner in doing justice in the cause, but because his hearing the matter is likely to give rise to a reasonable apprehension in the mind of the litigant that the mind of the learned Judge–may be subconsciously-has been influenced by some extraneous facto in making the decision, particularly if it happens to be in favour of the opposite party. Credibility in the functioning of the justice delivery system and the reasonable perception of the affected parties are relevant consideration to ensure the continuance of public confidence in the credibility and impartiality of the judiciary.”
iv) AIR 1966 1418, SC 1418 GURUCHARAN DASS CHADHA Vs. STATE OF RAHASTHAN
“(D) Criminal P.C. (1898) S.527-Gounds for transfer-Mere allegation that there is apprehension that justice will not be done not sufficient-Apprehension must appear to court to be reasonable.”
v) 2011 (7) SCC-762 JAHID SHAIKH AND OTHERS Vs. STATE OF GUJARAT AND ANOTHER
“A. Criminal Procedure Code, 1973-S.406-Transfer of case sought by accused persons-Gujarat communal riot cases-Apprehension of bias and prejudice of local police, Public Prosecutor and Presiding Officer of Court-Allegations of non-supply of copies of documents and if supplied in language not known to accused, counsel not permitted to meet their accused clients without police being present and police torture of petitioner-accused-Communally surcharged atmosphere-Tenability of such grounds, for time-Effect-Held, mere existence of communally surcharged Inability of court to conduct free and fair trial has to be considered-In the circumstances of case, communally surcharged atmosphere has defused substantially and Presiding Officers against whom allegation of bias was made are no longer in charge of court proceedings, hence held, transfer of trial is not justified-However, liberty given to accused persons to move Supreme Court again for transfer if they feel apprehension of unfair trial to be real during trial-Criminal Trial-Fair Trial-Natural Justice-Audi alteram partem-Constitution of India, Art.21.”
vi) 1998 (5) SCC-513 STATE OF WEST BENGAL AND OTHERS Vs. SHIVANANDA PATHAK AND OTHERS
“27. Judges, unfortunately, are not infallible. As human beings, they can commit mistakes even in the best of their judgments reflective of their hard labour, impartial things and objective assessment of the problem put before them. In the matter of interpretation of statutory provisions or while assessing the evidence in a particular case or deciding questions of law or facts, mistakes may be committed bona fide which are corrected at the appellate stage. This explains the philosophy behind the hierarchy of courts. Such a mistake can be committed even by a Judge of the High Court which are corrected in the letters patent appeal, if available.
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33. Bias, as pointed our earlier, is a condition of mind and, therefore, it may not always be possible to furnish actual proof of bias. But the courts, for this reason, cannot be said to be in a crippled state. There are many ways to discover bias; for example, by evaluating the facts and circumstances of the case or applying the tests of ‘real likelihood of bias’ or ‘reasonable suspicion of bias’. De Smith in Judicial Review of Administrative Action, 1980 Edn., pp.262, 264 has explained that ‘reasonable suspicion’ test looks mainly to outward appearances while ‘real likelihood’ test focuses on the courts own evaluation of the probabilities.”
vii) 2011 (8) SCC-380 P.D. DINAKARAN (1) Vs. JUDGES INQUIRY COMMITTEE AND OTHERS
Member of Committee, Respondent 3 (Senior Advocate) earlier actively participating in seminar organized by Bar Association of India opposing petitioner Judge’s elevation to Supreme Court, also leading a delegation of advocates to meet Chief Justice of India in that regard and was signatory to a representation against his elevation to Supreme Court-Held, above facts could give rise to a reasonable apprehension in mind of an intelligent person that Respondent 3 was likely to be biased-Judges and lawyers are trained to be objective and there is no doubt Respondent 3 possesses these qualities-However, issue of bias has not to be seen from view point of Court or Inquiry Committee-It has to be seen from angle of a reasonable, objective and informed person-Thus, petitioner’s apprehension of likelihood of bias against Respondent 3 is reasonable and not fanciful, though, in fact, he may not be biased-Natural Justice-Bias/Nemo Debet Esse Judex in Propria Sua Causa-Real likelihood of bias-Judges (Inquiry) Act, 1968, S.3(2)(c).”
Viii) 2004 (3) SCC-767 K. ANBAZHAGAN Vs. SUPERINTENDENT OF POLICE AND OTHERS
“30. Free and fair trial is sine qua non of Art.21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would be the rule of law. It is important to note that in such a case the question is not whether the petitioner is actually biased but the question is whether the circumstances are such that there is reasonable apprehension in the mind of the petitioner. In the present case, the circumstances as recited above are such as to create reasonable apprehension in the minds of the public at large in general and the petitioner in particular that there is every likelihood of failure of justice.”
ix) 2009 (4) CRIMES 56 SC HAZARI LAL DAS Vs. STATE OF WEST BENGAL AND ANOTHER
“9. In Dolat Ram and Others Vs. State of Haryana (1995) 1 SCC 349, this Court held:
4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis, a Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrate and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted.”
x) 1992 (4) SCC-272 ASLAM BABALAL DESAI Vs. STATE OF MAHARASHTRA.
“12. In State (Delhi Admn.) Vs. Sanjay Gandhi this Court observed rejection of bail when bail is applied for is one thing’ cancellation of a bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail once granted. That is because cancellation of bail interferes with the liberty already secured by the accused either on the exercise of discretion by the court or by the thrust of law. This court, therefore, observed that the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. That does not mean that the power though extraordinary in character must not be exercised even if the ends of justice so demand.
13. In Bhagirathsinh Vs. State of Gujarat this court observed that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. Even where a prima facie case is established the approach to the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. It is wrong to thin that bail secured by virtue of the proviso (a) to Section 167 is an undeserved one. To so think is to doubt the legislative wisdom in prescribing the outer limit for filing the charge-sheet and to ignore the legislative history. As pointed out earlier the legislative history of Section 167 shows that by proviso (a) the detention period was enhanced to a maximum of 90 days from 15 days earlier allowed. When the Legislature made it obligatory that the accused shall be released on bail if the charge-sheet is not filed within the outer limit provided by proviso (a), it manifested concern for individual liberty notwithstanding the gravity of the allegation against the accused. It would not be permissible to interfere with the legislative mandate on imaginary apprehensions, e.g., an obliging investigation officer deliberately not filing the charge-sheet in time, as such misconduct can be dealt with departmentally. To permit the prosecution to have the bail cancelled on the mercy filing of the charge-sheet is to permit the police to trifle with individual liberty at its sweet will and set at naught the purpose and object of the legislative mandate. The paramount consideration must be to balance administration of justice so as to prevent is failure. In the present case, the High Court cancelled the bail solely on the ground that the bail was granted on technical grounds and the investigation revealed that there was eye witnesses account disclosing the commission of a serious offence of murder. In its view the ratio of Rajnikant Jivanlal Patel case applies to the case with full vigour. We find it difficult to agree.”
5. Sri. Belliappa, learned counsel appearing for the Lokayukta submits that the petition filed by the petitioner before this court is contemptuous in nature and that the grounds urged in paras-2, 6 and 7 are per se, baseless aspersions on the personal background of the Presiding Officer and has nothing to do with the discharge of his duties as a Presiding Officer of a Court. The first ground that the Presiding Officer appears to carry an adverse impression against all the politicians and he is pursuing such cases with utmost vigor is not supported by any material on record. Hence the same is per se defamatory. It is also submitted that the averments made in para-7 to the effect that the Presiding Officer was practicing in KGF Courts cannot be made as a ground since all the judicial officers are coming from the legal fraternity and that every judicial officer before becoming a Judge would be an advocate at some place or the other. To add colour to the said position, is nothing but contemptuous and therefore said trend has to be nipped in the bud. He also submits that the third ground alleged is that brother of the Presiding Officer is a stamp vendor and that it is clear that he is instrumental in the cancellation of the bail of the petitioner and that he will be sent to jail is an after-thought and is not based on record. Except swearing into an affidavit no material is placed by the petitioner to show that two persons whose affidavit is produced have in fact contacted said Mr. Badrinath on the date alleged by the petitioner much less producing any material to show that on that day they had any work with the brother of the petitioner. He submits that the allegations made in the affidavit are totally false and not based on material on record. Hence he submits that the petition may be dismissed.
6. I have gone through the materials produced before me in support of the petition for transfer.
7. The first ground urged by the learned counsel for the petitioner that Presiding Officer carries an adverse impression against all the politicians and is pursuing such cases with utmost vigor has not been supported by any material furnished along with his petition. Hence the said allegation made in the transfer application cannot be taken as a ground for transferring the case from the court of the said Presiding Officer. So far as the second ground is concerned, that the brother of the Presiding Officer has declared that he is instrumental in sending the petitioner to jail is supported by affidavits of one B.M. Ramachandra s/o Munivenkatappa of Bethamangala, Bangarpet Taluk. In his affidavit Sri. Ramachandra has averred that he is a activist of various dalit organisations in Bethamangala. In connection with these organisations he goes to Bangarpet frequently and he knows Mr. Badrinath brother of the Lokayukta Judge who is a resident of Bangarpet and is a stamp vendor by profession. It is averred in the said affidavit by Mr. Ramachandra that he engages Mr. Badrinath to draft the deeds whenever it is necessary. It is also stated by him that Mr. Badrinath is also identified by political organizations by participating Congress party rallies and meetings. It is further averred by him that on 29.10.2011 he went to meet Mr. Badrinath for seeking his opinion in respect of purchasing a land in Bethamangala, he met Mr. Badrinath at about 11-30 a.m. in the Sub-Registrar’s office at Bangarpet, Mr. Badrinath took him to a hotel for tea and when they joined for tea Mr. Badrinath revealed the fact that he was instrumental in getting the bail cancelled to Mr. Sampangi. It is also averred further that Mr. Badrinath has advised his brother to send Mr. Sampangi to jail in the pending case before the Lokayuktha court. On a careful perusal of the affidavit it is seen that none of the averments made in the affidavit are supported by any document either to show that Mr. Badrinath is working as a Congress party member or that Mr. Ramachandra is a client to Mr. Badrinath. It is averred by Mr. Ramachandra that he always engages Mr. Badrinath to draft deeds whenever it is necessary. If that is so, there should be atleast a piece of paper to support his contention that he is a client of Mr. Badrinath. It is further stated by Mr. Ramachandra that on 29.10.2011 he went to Mr. Badrinath for seeking opinion in respect of purchasing a land in Bethamangala. Not a single piece of paper nor the particulars of the land is attached to the affidavit to show that on that day he had in fact gone to Mr. Badrinath and that he had discussed about certain land. The entire affidavit of Mr. Ramachandra is imaginary and is not supported by any documents to cross-check his truthfulness. Under the circumstances, I have no hesitation to hold that the affidavit of Mr. Ramachandra is of no help to the petitioner to seek any support for the transfer of his case.
8. Now adverting to the affidavit of A.L. Amarendra Mouni, it is stated that he is a PWD contractor and he has Government contracts in Bangarpet Taluk. He is also acquainted with political activities by identifying himself with Y. Sampangi, MLA. It is averred by him that he goes to Bangarpet very often to visit various Government Offices in connection with his contract work. He also stated that he knows Mr. Badrinath, brother of the Lokayukta Judge and he visits Sub-Registrar’s Office too often. Mr. Badrinath is a resident of Bangarpet and is a stamp-vendor by profession. He always entrust the drafting of deeds to Mr. Badrinath. It is further averred by said Amarendra Mouni that on 29.10.2011 he met Mr. Badrinath for seeking his assistance in procuring certain documents from the Sub-Registrar’s Office. It is stated by him that during that time Mr. Badrinath has told him that he (Mr. Badrinath) has advised his brother, the learned Judge, to cancel the bail granted to Mr. Sampangi. It is averred that Mr. Badrinath has further stated that he has advised his brother to convict Sampangi so that Sampangi should not contest for the elections in future. It is also stated in the affidavit that Mr. Badrinath has further stated that he hates Mr. Sampangi and accordingly he will teach a lessor to Mr. Sampangi. On a careful scrutiny of this affidavit that none of the averments made in the affidavit are supported by any piece of paper in the form of evidence. It is the case of Amarendra Mouni that he is a regular visitor of Mr. Badrinath and on 29.10.2011 he went to the office of Mr. Badrinath for drafting of deeds and registration of documents and to procure certain documents from the Sub-Registrar’s Office. If that were to be the case, atleast copy application number and document which is sought should have found a mention either in the affidavit or in the accompanying document. Therefore, it is but necessary to observe that the affidavit of Amarindra Mouni is not worth paper on which it is written.
9. Therefore, I am of the opinion that none of the three grounds made by the petitioner for transfer of the case stands the legal scrutiny and it cannot be said that either one or all of the grounds urged would enable the petitioner to seek a transfer.
10. So far as the cancellation of bail is concerned, from the records it is seen that the application for cancellation of bail was filed on 18.2.2010 as per order-sheet produced before the court. The said application was pending. However, the said application was not considered till 28.10.2011. On 28.10.2011 matter was ripe for trial and witness was present. On that day, witness had expressed his apprehension that he has been threatened by the petitioner and forced not to depose against him. He has also threatened the witness to withdraw the case. On the back-ground of this fact learned Presiding Officer has thought it fit to cancel the bail only till the evidence of the witness is recorded. Justice should be done to both the parties. It is not only the accused who is to be meted out with justice but the persons who seek for justice require that they should be meted out with justice. It is all that learned Presiding Officer has done. Sri. Ashok Harnahalli, learned senior counsel for the petitioner drew my attention to the decision reported in ASLAM BABALAL DESAI Vs. STATE OF MAHARASHTRA (1992 (4) SCC-272) wherein Hon’ble Supreme Court has held that the consideration of cancellation of bail is entirely different for consideration of grant of bail. This court has absolutely no dispute regarding the principles laid down in the said case. However, it is to be noted that the application for cancellation of bail on the ground that petitioner is threatening the witnesses was pending since 18.2.2010 as is seen from the order-sheet. Therefore, it is not as if the petitioner was taken by surprise on 28.10.2011 on which date the court decided to cancel the bail. Code of Criminal Procedure does not prescribe that before cancellation of bail notice has to be given. If any conditions of bail are violated, courts are empowered to cancel the bail without notice to the party. It is only before the accused is sent to jail he is asked why he should not be sent to jail. Hence, I find no reason for the petitioner to apprehend that injustice would be caused at the hands of the Presiding Officer.
11. For what has been stated above, I am of the opinion that petitioner has not made out any ground for transfer of his case from the present court. Hence, the petition is hereby rejected.