ORDER
S. Muralidhar, J.
1. In a judgment dated 11th March, 2008 in a batch of cases (Crl.M.C. 1775/2006 Dharambir v. Central Bureau of Investigation), this Court issued certain directions in regard to supply of documents to the accused persons at the pre-charge stage. In regard to the four cases in respect of which the said judgment came to be passed, it was directed by this Court that: “the arguments on charge thereafter be positively concluded in all the four cases on or before 30th April, 2008 and orders on charge be passed on or before 31st May, 2008. Each of the learned Counsel will cooperate in this entire exercise.”
2. In all the four cases, after completing the exercise of supply of documents in terms of this Court’s judgment dated 11th March 2008, the learned Special Judge, CBI, Ms. I.K. Kochhar finally heard the arguments on charge and reserved orders before 30th April 2008. In the Lift Case orders on charge were passed on 8th April 2008. In the DLF case, orders on charge were passed on 26th April 2008. As regards the Modern School case (CC No. 12/04), final arguments were concluded and orders reserved on 21st April 2008 and the case was fixed for orders on 3rd May 2008. In the Shameet Mukherjee case (CC No. 11/05) arguments on charge were concluded and orders reserved on 28th April 2008. The case was listed for pronouncement of orders on charge on 13th May 2008.
3. In the present applications filed by the CBI, it has been stated that on 3rd May 2008 CC No. 12/2004 (the Modern School Case) was listed before Dr. R.K. Yadav who was sitting as Special Judge, CBI. Ms. I.K. Kochhar was sitting as Additional District & Sessions Judge, In-charge Patiala House Courts, New Delhi. It is stated that Dr. R.K. Yadav proceeded to rehear the arguments on charge afresh on 3rd May 2008, and fixed the matter for further arguments on 6th and 7th May, 2008.
4. It was at that stage the CBI filed the present application praying for a direction that Ms. I.K. Kochhar should be directed to pass the orders on charge in the two cases, i.e., CC. No. 12/2004 and CC No. 11/2005 in terms of the judgment dated 11th March, 2008 passed by this Court. On 5th May, 2008 this Court passed the following order on the said application:
Crl. M.A. No. 5438 of 2008
1. This application was mentioned in the morning at 10.30 a.m. and was ordered to be listed at 2.00 p.m.
2. Notice.
3. Mr. Krishnan, submits that an advance copy of the application has been served on the learned Counsel for the non-applicants. However, they are not present.
4. This is an application by the Central Bureau of Investigation (‘CBI’) seeking a direction that the learned Special Judge, Ms. I.K. Kochhar who heard the arguments on charge in C.C. No. 12 of 2004 (Modern School case) and C.C. No. 11 of 2005 (Shameet Mukherjee’s case) had passed an order at the conclusion of the arguments, listing the cases for orders on 3rd May, 2008 and 13th May, 2008 respectively. It is pointed out that on 3rd May 2008, the learned Counsel for the CBI learnt that the roster had changed and a new incumbent Mr. R.K. Yadav had taken over as a Special Judge, CBI. It is stated that the matter was found to have been again fixed for arguments on charge on 6th May, 2008.
5. This Court had by its judgment dated 11th March, 2008 in Crl. M.C. No. 1775 of 2006 and batch given time bound direction for the conclusion of arguments by 30th April, 2008 and pronouncement of orders on charge in the aforementioned two cases and two other cases as well by 31st May, 2008 was in compliance with those directions that Ms. I.K. Kochhar, the learned Special Judge had heard the final arguments and reserved orders on charge. In two of the cases she had passed order and in the remaining two, she had fixed the cases for pronouncement of orders on 3rd and 13th, May, 2008. This was in compliance with the direction of this Court.
6. Considering the facts and circumstances, the proceedings before Mr. R.K. Yadav, the learned Special Judge, CBI, New Delhi in the said two cases are hereby stayed. The learned Special Judge is directed not to proceed again hearing the arguments on charge in the said two cases.
7. Before passing any order directing Ms. I.K. Kochhar to proceed with the pronouncement of order on charge in C.C. No. 12 of 2004 and C.C. No. 11 of 2005, this Court would like to examine the files. Mr. R.K. Yadav, the learned Special Judge CBI, New Delhi is directed to send the files of the two cases to this Court immediately.
8. A certified copy of this order be sent to the court of Mr. R.K. Yadav, the learned Special Judge CBI, Patiala House Court, New Delhi through a Special Messenger today itself. The files will be sent to this Court by Mr. Yadav, the learned Special Judge, CBI, New Delhi by a Special Messenger forthwith.
9. List on 7th May, 2008.
10. Order dusty to the parties.
5. Pursuant to the above order, the files of the two cases have been sent to this Court. In regard to CC No. 12/2004, the record shows that on 21st April, 2008, Ms. I.K. Kochhar as Special Judge, CBI had at the conclusion of arguments on charge fixed the matter for 3rd May, 2008 for pronouncement of orders. Likewise on 28th April 2008 at the conclusion of arguments on charge in CC No. 11/2005 she listed the matter on 13th May 2008 for orders on charge.
6. As far as CC No. 12/2004 is concerned on 3rd May 2008, Dr. R.K. Yadav passed the following order:
3.5.08
Present : Shri Gautam Narayan, Spl. PP for CBI
All the five accused persons are present on bail. They are represented by Dr. Rekha, B.R. Puri, M adhu Sudan Bhayana Advocates.
Arguments on the point of charge has been heard in part, since the earlier arguments were heard by my Predecessor. Case adjourned for further arguments on charge on 6/7/.5.08.
Special Judge/CBI/ND
3.5.08
7. Mr. Dayan Krishnan, the learned Counsel for the CBI submits that it will be a waste of precious judicial time if on account of the change in the roster the incumbent Special Judge, CBI has to again hear arguments on charge in the two cases, i.e, the Modern School case and the Shameet Mukherjee case and pass orders. He clarifies that the application by the CBI is not in the nature of a transfer application but an application invoking the extraordinary jurisdiction of this Court under Article 227 of the Constitution and Section 482 Code of Criminal Procedure, 1973 (CrPC) to ensure that the binding judicial directions of this Court issued in its judgment dated 11th March 2008 are duly complied with. He points out that the prayer made by the CBI cannot prejudice any party since it is in the interest of accused themselves that the criminal cases should be proceeded with expeditiously and the time-bound directions issued by this Court should be complied with. He further submits that the counsel for the accused have already addressed arguments at great length on charge as has the prosecution before Ms.Kocchar the learned Special Judge, CBI. The arguments were spread over several months and therefore, it would be in the interests of justice that a direction is issued that Ms. I.K. Kochhar should proceed with the pronouncement of orders on charge. He relies upon the judgments of the Supreme Court in State of Gujarat v. Vakhastsinghji Vajesinghji Vaghela (Dead) , State v. Navjot Sandhu @ Afshan Guru , Surya Dev Rai v. Ram Chander Rai , Zahira Habibullah Sheikh v. State of Gujarat and L. Chandra Kumar v. . His submission was that the High Court should, in exercise of its supervisory jurisdiction, ensure the expeditious disposal of a lis particularly when it would not prejudice any party.
8. Arguments on behalf of the accused were addressed by Mr. S.K. Rungta, Mr. Saxena, Pdt. R.K. Naseem and Mr. Vijay Aggarwal, learned Advocates. Advance copy of the application was served on all the counsel for the non-applicants/accused. Today at the end of the arguments, Pt.R.K.Naseem, learned Counsel appearing for accused Mr. Vinod Khatri, informed the Court that he had been requested by Mr.Shameet Mukherjee to seek an adjournment on his behalf. Considering that all the other accused, who more or less made the same submissions, have appeared after notice through counsel and addressed elaborate arguments, and considering the paucity of time since the entire exercise is about ensuring compliance with the time-bound directions issued by this Court, entertaining such a request for further adjournment on behalf of one of the accused after the arguments have concluded will not subserve the interests of justice.
9. At the outset, the learned Counsel for the accused non-applicants/accused were unanimous that it mattered little to them whether the orders on charge were passed by Judge `A’ or Judge `B’. They were really concerned that the Judge passing the order on charge should be competent to pass such an order in terms of Sections 3 and 4 of the Prevention of Corruption Act, 1988 (PCA,) since these cases involve offences under that statute. It was, however, submitted that the present application by the CBI is in effect a plea for transfer of the case from the Court of a Special Judge, CBI to the Court of the Additional District & Sessions Judge (ADSJ) who lacks the jurisdiction to hear the matter. The submission was that this Court has no power to order such a transfer as it would be without jurisdiction. Reliance is placed upon the judgment of the Constitution Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak and of the High Court in Ram Chander Bishan Dass v. State of Pepsu AIR 1956 PEPSU 32. It is submitted that the time-bound directions issued by this Court can very well be complied with by the present incumbent Dr. R.K. Yadav who is the Special Judge, CBI and no directions should be issued for transferring the case to Ms. I.K. Kochhar as that would set an undesirable precedent.
10. On behalf of the accused Shri Dharambir, Mr. S.K. Rungta, the learned Counsel additionally submitted that there was an apprehension of bias in view of the fact that in the other two cases, i.e., the Lift case and the DLF case, in both of which he is accused, Ms. I.K. Kochhar, Special Judge, CBI has already passed orders framing charges. According to Mr. Rungta, this is justification enough for Shri Dharambir to seek transfer of the remaining two cases from the Court of Ms. I.K. Kochhar. He refers to Rule 10 of Chapter 26 of the High Court Rules (Rules) which states that one of the grounds on which transfer can be sought is where a Judge has “already formed and expressed a definite opinion on the material issues requiring decisions, against the accused concerned.” According to him, although he has not filed any application so far seeking such relief, this oral submission through counsel in the present proceedings can be entertained. However, if such submission is rejected then it would foreclose the right of Shri Dharambir to invoke the remedy under Chapter 26 of the Rules to seek transfer of case from Ms. I.K. Kochhar. The submission is that not only should no order be passed as prayed for by the CBI, but Shri Dharambir’s contentions on bias should not be decided and be permitted to be raised at the subsequent stage of proceedings. It is important to note that none of the counsel for the other accused made such a submission.
11. Learned Counsel for the CBI stated that as per his information the formal notification notifying Dr. R.K. Yadav as Special Judge, CBI has not yet been issued by the appropriate government under the PCA. It is submitted that perhaps Dr. R.K. Yadav began functioning as a Special Judge, CBI in anticipation of the formal notification being issued.
12. This Court finds no merit in the submissions of the learned Counsel for the accused. The judgments of the Supreme Court relied upon by learned Counsel for the CBI explain in great detail the scope and ambit of the powers of this Court under Article 227 of the Constitution and Section 482 CrPC. It has been explained in Surya Dev Rai that the “power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion.” In the same judgment it is held that the power should be exercised by way of correcting an error and where “refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.” Likewise in State v. Navjot Sandhu it was held that the inherent power “is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice.”
13. As explained in the judgment dated 11th March 2008, the expediting of proceedings was desired by the Supreme Court in the order passed by it on 29th February 2008 in these cases. This was in the background of the fact that nearly five years had elapsed since the registering of the FIRs, almost three years had elapsed after the filing of the charge sheets and yet orders on charge had not yet been passed. In the Modern School case, the FIR was registered on 26th March, 2003 and the charge sheet was filed on 30th July, 2004. In the Shameet Mukherjee case, the FIR was registered on 29th April, 2003 and charge sheet was filed 5th April, 2005. Consequently, in its judgment dated 11th March, 2008 this Court fixed the time limit for conclusion of the arguments on charge and pronouncement of orders on charge. The interests of justice in the present cases demand that the time limits as ordered should be adhered to.
14. The learned Counsel for the accused appear to be making contradictory submissions. On the one hand they state that as long as the Judge passing the orders on charge is competent to do so in terms of the PCA, it will matter little to the accused whether one or the other Judge passes the order. However they say in the same breath without explaining how the accused is prejudiced, that Dr. R.K. Yadav should proceed with the arguments on charge and pass orders within the deadline fixed by this Court. Shri Dharambir appears to strike a further contrary note by expressing apprehensions of bias only because the Ms. I.K. Kochhar, as Special Judge, CBI, has already passed the orders on charge in two of the cases.
15. In the view of this Court as long it can be ensured that Ms. I.K. Kochhar acts as Special Judge, CBI while passing the orders on charge in the two cases, there can be absolutely no prejudice caused to the accused. The apprehension of bias now expressed on behalf of Shri Dharambir, clearly appears to be an afterthought. In response to a query from this Court whether there was any written application filed at any time during the proceedings pending before Ms. I.K. Kochhar seeking transfer of the case from her Court, Mr. Rungta replied in the negative. According to him, the occasion for filing such an application arose only when orders on charge in the other two cases were passed. This Court finds the submission to be misconceived and untenable. When the four cases have been heard together throughout by the same learned Special Judge, CBI, to orally express an apprehension of bias at a stage well after the conclusion of arguments on charge, and only after orders framing charges have been passed in two of them, is an argument of desperation. The clubbing of these cases is for the benefit of the accused. In fact it benefits Shri Dharambir the most since he is an accused in all of them. He would obviously be prejudiced otherwise. It is not uncommon for the same criminal court to jointly try cases having common accused. To entertain an extraordinary plea, like that advanced by Shri Dharambir here, would make it impossible for joint trials to happen. There appears to be no rational or reasonable basis for the apprehension of bias in the present case. The reliance on Rule 10 of Chapter 26 is misplaced since that envisages an entirely different context. The plea on behalf of Shri Dharambir in regard to bias and his apprehension that allowing the prayer of the CBI in these applications will foreclose his right to raise such plea at a later stage is misconceived and rejected as such.
16. It was sought to be urged that these applications are disguised transfer petitions and therefore, this Court has no jurisdiction to entertain them and direct the transfer of the two cases from the Court of Dr. R.K. Yadav to that of Ms. I.K. Kochhar. This submission is misconceived for several reasons.
17. In the first place, as of today no formal notification has yet been issued appointing Dr. R.K. Yadav as Special Judge, CBI. Therefore, the powers of Special Judge CBI cannot be said to have been formally withdrawn yet from Ms. I.K. Kochhar. There should be no difficulty therefore if she were to continue to exercise the powers of a Special Judge, CBI in respect of these two cases till such time she passes the orders on charge in terms of the binding directions contained in the judgment dated 11th March, 2008 of this Court. This Court will only be ensuring the compliance of its direction that, as far as these two cases, i.e., C.C. Nos. 12/2004 and 11/2005, are concerned, the orders on charge, would be pronounced by Ms. I.K. Kochhar who has heard the final arguments on charge and reserved orders. Accordingly, there is no need to go into the question whether this amounts to a transfer of cases from one court to the other since in fact Dr. R.K. Yadav has yet not been formally notified as a Special Judge, CBI and the powers of Ms. I.K. Kochhar as Special Judge, CBI have not yet been formally withdrawn.
18. Secondly, none of the accused can be prejudiced since by directing that the Judge who heard the final arguments on charge should herself pass the orders thereon, this Court would be ensuring the opposite, i.e., that no prejudice is caused to the accused. It would obviously be time consuming and expensive for the accused to again address arguments on charge, through counsel, before the new incumbent. Further, to be asked to conclude arguments in less than a month, when in fact as is demonstrated by the record the arguments on charge in these two cases have been going on for several months would cause further prejudice. It is also impractical to expect the new judge to appreciate all the arguments and pass orders in an impossibly short time. There is every likelihood that the deadline of 31st May, 2008 will not be met causing further unnecessary delays and wastage of precious judicial time. It also involves huge expenses in terms of counsels’ fees both by the accused and prosecution if arguments on charge have to be addressed again in these two cases before the new incumbent Special Judge, CBI. Considering all these factors, it is in the fitness of things that in the interests of justice this Court should exercise its inherent powers and pass appropriate directions to ensure that the time bound directions contained in the judgment dated 11th March, 2008 are fully complied with.
19. The objections raised by the accused to the grant of the prayer in the applications by the CBI are accordingly rejected. The directions that follow ensure that when she passes the orders on charge in the two cases, Ms. I.K. Kochhar functions as Special Judge, CBI. This order is being passed in the light of the peculiar facts and circumstances of this case and for effectuating the judicially binding directions of this Court.
20. The applications are disposed of by directing that in addition to her existing duties as ADSJ, Ms. I.K. Kochhar will continue to deal with C.C. No. 12/2004 (the Modern School case) and C.C. No. 11/2005 (the Shameet Mukherjee case) as Special Judge (CBI) till such time she passes the orders on charge in those two cases in terms of the judgment dated 11th March 2008 of this Court. If she decides that charges are to be framed, then she will frame the charges, enter the plea of the accused and make over the two cases from that stage to the next incumbent for further proceedings in accordance with law. The authorities concerned will accordingly act to ensure the compliance of these directions.
21. The files of the cases, CC No. 12/2004 and CC No. 11/2005 will now be placed before Ms. I.K. Kochhar at 2 p.m. on Friday 9th May, 2008. The learned Judge, Ms. I.K. Kochhar will in addition to her duties as ADSJ, for the purpose of these two cases, continue as Special Judge, CBI till such time she passes the orders on charge in terms of the judgment dated 11th March, 2008 of this Court and, if she so decides, till she frames the charges and enters the plea of the accused. The accused in both cases are directed to be present before Ms. Kochhar on 9th May 2008 at 2 p.m. Ms. Kochhar will fix appropriate dates for pronouncement of orders on charge in the two cases in terms of the judgment dated 11th March, 2008 and this order.
22. The applications are disposed of with these directions. A certified copy of this order will be sent by the Registrar General of this Court forthwith to the authorities concerned for appropriate action in terms of this order.
23. Order dusty to the parties under the signature of the Court Master.