ORDER
Surya Kant, J.
1. This petition under Section 407 read with Section 482 of the Code of Criminal Procedure, 1973 has been filed by the petitioner seeking transfer of the case, registered against him vide FIR No. RC AC 3/ 2002 A0001 dated 9-5-2002, under Section 7 of the Prevention of Corruption Act, 1988 and is pending trial before the Special Judge, Ambala. Prayer has been made to transfer the aforementioned case to another Special Judge, C.B.I, either at Patiala or Chandigarh.
2. The bare minimum facts which may be stated for the disposal of the present petition are that the petitioner who was working as Commissioner of Income-tax at Karnal in the year 2002, was allegedly caught red handed on May 9, 2002 by the raiding party to the C.B.I, while accepting a bribe of Rs. 1,00,000/- from one Rajesh Bahl son of Ram Lal Bahl, a practising Consultant in income-tax at Karnal in relation to the assessment cases of M/s. Mortein Finlease Private Limited. According to the petitioner, he has been falsely implicated in the aforesaid case at the behest of certain departmental officials who were jealous of his steep rise in career because of his honesty and integrity.
3. Be that, as it may, pursuant to the registration of the FIR, the C. B. I., on completion of the investigation, submitted a charge-sheet against the petitioner in the Court of Special Judge (CBI) at Ambala who has been notified under Section 3 of the Prevention of Corruption Act for conducting the CBI cases pertaining to the State of Haryana. The petitioner avers that after the challan was presented, he never missed any date of hearing before the learned Special Judge, Ambala but on January 16, 2004, which was a thick fogy day, he could reach the Court at 10.50 A. M. Since his vehicle bearing registration No. RJ-23C-5600 met with an accident at Shahbad; that when the petitioner reached the Court premises, his counsel informed him that the learned Special Judge had already passed an order (Annexure P-6) forfeiting his bail bonds and had issued non-bailable warrants for 11-2-2004; that on the advice of his counsel, the petitioner approached this Court challenging the order Annexure P-6 in Criminal Misc. No. 2990-M of 2004 and vide order dated 20-1-2004, this Court, after noticing the fact that absence of the petitioner was not intentional, set aside the afore-mentioned and he was directed to appear before the learned trial Court so as to furnish fresh bail bonds to the satisfaction of the Special Judge, CBI, at Ambala; that the petitioner again moved this Court in Cr. Misc. No. 10971-M-2004 in question but the said petition was withdrawn by him on March 5, 2004 (Annexure P-8) so as to seek his remedy before the learned Special Judge, Ambala at the time of framing the charge; that on 11-3-2004, the counsel for the petitioner moved an application for discharge of the petitioner in the FIR in question and also appended order dated 5-3-2004 (Annexure P-8) passed by this Court, referred to above; that the learned Special Judge, Ambala from the very inception of the case, started treating him guilty of the alleged crime with the remarks like “on the one hand the petitioner was Commissioner of Income-tax and on the other hand, he had received bribe and in this way he could not escape from punishment”; that such remarks continued on various dates of hearing; that on March 11, 2004, Shri D.S. Malik, Advocate appeared before the learned Special Judge along with the petitioner and submitted his oral as well as written arguments; while the petitioner was standing with his counsel in the Court Room, the learned Special Judge in a very loud voice said, “why he is standing with the learned counsel as since he was an accused person, so his place was in the dock and not for consultation with the counsel”; that during the course of arguments, learned Special Judge asked from the counsel, “whether his father was also a lawyer and to which place the counsel belonged”; that when the counsel for the Petitioner wanted to submit written arguments, the learned Special Judge also remarked that “there was no provision of submitting the written arguments”; that while the counsel for the petitioner was still making his submissions, the learned Special Judge in a very loud voice told the learned Public Prosecutor on behalf of CBI that “the CBI should engage some very senior counsel as the learned P.P. was not capable in handling the case”; the learned Special Judge also apprised the Public Prosecutor of certain authorities to be brought and in a very angry mood, adjourned the case to 20-4-2004; that the learned Special Judge again remarked in the Open Court that, “in the case for conviction, the petitioner could not escape from that”; thereafter on 11-3-2004, he passed an order which, inter-alia, indicates that arguments on the charge were advanced by the defence counsel and written arguments were also filed by him but the P. P. sought time for arguments as well as for submission of written arguments and authorities, for which the case was adjourned to March 20, 2004; the petitioner asserts that he has reasonable apprehension in his mind that a fair and impartial trial is not likely to be held against him by the learned Special Judge (CBI) at Ambala and has consequently sought transfer of the case to any other Special Court of the CBI either at Patiala or Chandigarh.
4. Needless to say that in support of his petition, the petitioner has filed his affidavit as well as an affidavit dated March 16, 2004 (Annexure P-9) of Shri D.S. Malik, Advocate.
5. When the matter came up for preliminary hearing before this Court on March 18, 2004, notice to the respondents was issued and comments of the learned Special Judge were also sought in relation to the allegations made in this petition as well as in the affidavit of Shri D. S. Malik, Advocate (Annexure P-9).
6. Reply by way of affidavit of one S.K. Sharma, Pairvi Officer has been filed on behalf of the CBI, stating inter-alia, that the present petition has been filed with an intention to delay the trial; that allegations are false and misleading; that the allegations levelled by the petitioner that the learned Special Judge, Amabala ridiculed the petitioner with sarcastic remarks right from the very beginning, are totally false and imaginary; that regarding the incident dated March 11, 2004, it has been averred that the petitioner was standing at a place which is meant for the Advocates to advance their arguments and the learned Special Judge advised the accused-petitioner to stand at the proper place meant for the accused; that other allegations, namely, that the learned Special Judge observed that the CBI should engage some Senior Counsel as the learned P. P. was not capable of handling the case, have been denied, these being false, baseless and unfounded; in relation to the prayer made by the petitioner for transfer of the case to Patiala or Chandigarh, the stand of the CBI is that the same is without any justifiable grounds and aimed at to defeat the ends of justice by unduly protracting the trial proceedings.
7. In compliance of the order dated March 18, 2004 passed by this Court, the learned Presiding Officer of the Special Court at Ambala, vide his Memo. No. 196 dated April 2, 2004 has sent his comments in relation to the allegations made in the petition whereas vide his subsequent Memo. No. 298 dated 5-6-2004, he has sent his comments in relation to the allegations contained in the affidavit dated 16-3-2004 (Annexure P-9) of Shri D.S. Malik, Advocate. In Memo. No. 196 dated 2-4-2004, it has been admitted that the bail bonds and surety bonds of the petitioner were cancelled by an order on 16-1-2004, which was subsequently set aside by this Court. Regarding the allegation made in para 9 of the petition, the Presiding Officer has stated as under :–
“With regard to para No. 9 of the petition, it is submitted that the averments, made in this para of the petition, to the effect that “the learned Special Judge, Ambala, from the very inception, when the petitioner appeared before the Id. Judge, for the first time, treated the petitioner with the remarks that on the one hand, the petitioner was a Commissioner, Income Tax and on the other hand, he had received bribe and in this way, he could not escape from punishment” and that “such remarks continued on various dates of hearing”, are also totally false and baseless. The averments, made in para No. 9 of the petition, to the effect that” Special Judge did not hear anything from the petitioner on that day viz. 16-1-2004 and remarked that he would see that the petitioner would be behind the bars and not bailed out”, are also wrong and baseless”.
Regarding the allegation made in para 10 of the petition, the learned Presiding Officer admits that he had asked Shri D. S. Malik, Advocate as to whether his, namely, Mr. Malik’s father, was also a lawyer and to which place he belonged. He has explained that this was asked by him in a casual manner. He has, however, denied that he stated to the learned counsel for the petitioner that there was no provision for submitting written arguments and as a matter of fact after advancing oral arguments for about half an hour, written arguments were also placed on record by the learned defence counsel. It has also been denied by the learned Presiding Officer that he ever asked the P. P. or the CBI that they should engage a Senior Counsel or that the P. P. was not capable of handling the case rather he has asked the P. P. to produce latest authorities in the charge on the next date of hearing. It has also been denied that he had ever spoken in a loud voice or in angry manner to any one in the Court.
8. Denying further allegations made in para 10 of the petition, the Presiding Officer has stated as under :–
“The averments, made in para No. 10 of the petition, to the effect that “Special Judge again remarked in the open Court that in the case for conviction, the petitioner could not escape from that”, are totally false and baseless. The present petition, has been filed by the petitioner, levelling false and baseless allegations against me. It appears, that the petitioner does not want to get this case tried from me. It has also been wrongly alleged in the present petition that on 11-3-2004, the case was adjourned by me in an angry mood,”
9. Similarly, in Memo. No. 298 dated 5-6-2004, he questions the credibility of the affidavit of Shri D.S. Malik, Advocate, wherein Shri Malik has stated that “the learned Special Judge from the very inception when the petitioner appeared before the learned Judge for the first time, treated the petitioner with the remarks that on the one hand, the petitioner was Commissioner of Income tax and on the other he has received the bribe……………….” by pointing out that Shri Malik had not attended the court on 16-1-2004 and/or prior thereto, therefore, he could not have affirmed his affidavit in relation to the alleged incident, which, even according to the petitioner, had taken place in the court Room on 16-1-2004 or prior thereto.
Regarding asking Shri Malik as to whether his father was also a lawyer and to which place did he belong the fact has been admitted by the learned Presiding Officer stating that he did enquire these facts but in a casual manner.
10. In respect of another allegation contained in the affidavit of Shri D.S. Malik, Advocate, the learned Presiding Officer has asserted that he had politely asked the petitioner (accused Madan Lal) to stand at the place where the accused usually stand as at that time the petitioner was having no consultation with his counsel. In addition to it, the learned Presiding Officer has also reiterated the stand taken by him in his previous Memo No. 196 dated April 2, 2004.
11. I have heard Shri D.S. Bali, learned Senior Counsel representing the petitioner, Shri Rajan Gupta, learned counsel appearing for the CBI and have also perused the record.
12. Shri D. S. Bali, learned Senior Counsel has contended that the series of incidents particularly those in relation to the remarks made by the learned Presiding Officer, a brief reference to which has been made in the earlier part of the judgment, have created a reasonable and bona fide apprehension in the mind of the petitioner as if the learned Presiding Officer of the Special Court, CBI at Ambala, is not only prejudiced against him but has pre-judged the case against him, therefore, he apprehends of not getting a fair and impartial trial from the said Court. According to Shri Bali, the formation of such a reasonable apprehension is suffice for the invoking of powers by this court under Section 407 read with Section 482, Cr PC.
On the other hand, Shri Rajan Gupta, learned counsel for the CBI has contended that the allegations attributed to the learned Presiding Officer are totally false and concocted which fact has been asserted by the Pairvi Officer in his affidavit dated 13-5-2004 as well as by the learned Presiding Officer in his written comments. According to Shri Rajan Gupta, merely because certain observations are alleged to have been made by the learned Presiding Officer, per se, do not amount to any expression on the merits of the case and that unless the element of bias is reflected beyond any doubt from the Judicial proceedings of a case, no occasion for invoking powers by this Court under Section 407, Cr PC arises. Relying upon Section 3 of the Prevention of Corruption Act, 1988, Shri Gupta further contended that since the presiding officer of the Special court of CBI at Ambala has been authorised by name by the Central Government for the State of Haryana and there being no other notified Special Court for the above State, the case in question cannot, in fact, be transferred from the Special Court at Ambala.
13. The law is well settled that a litigant cannot choose a Bench of his choice. It is only in exceptional 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.
14. The law in relation to the prayer for transfer of a case is well settled by the Apex Court in a catena of judgments. In Bhajan Lal v. Jindal Strips Ltd. SCC 19, (1994 AIR SCW 3905) their Lordships held as under :–at Page 3912; of AIR SCW
“Bias is the second limb of the natural justice. Prima facie no one should be a judge in what is to be regarded as sua cause, whether or not he is named as a party. The decision maker should have no interest by way of gain or detriment in the out-come of a proceedings. Interest may take many forms. It may be direct, it may be indirect, it may arise from a personal relationship or from a relationship with the subject-matter, from a close relationship or from a tenuous one.”
15. In the case of Jaswant Singh v. Virender Singh, AIR 1995 SC 520, where certain unfounded allegation were levelled by an Advocate, who could not get the desired relief from a Judge, their Lordships of the Supreme Court held as under:– Para 35
“The transfer petition cast aspersions on the Judge of the High Court in the discharge of his judicial functions and had the tendency to scandalise the Court. It was an attempt to brow-beat the Judge of the High Court and cause interference in the conduct of a fair trial. It also tend to bring the authority and administration of law into disrespect. It was most unbefitting for an advocate to make imputations against the Judge only because he does not get the expected result, which according to him was fair and reasonable. No system of justice can tolerate such unbridled licence on the part of a person, be he a lawyer, to permit himself the liberty of scandalising a Court by casting unwarranted, uncalled for and unjustified aspersions on the integrity, ability, impartiality or fairness of a Judge in the discharge of his judicial functions as it amounts to an interference with the due course of administration of justice.”
16. Adverting to the facts and circumstances of this case, I find that the so called apprehension of unfair trial in the mind of the petitioner, is founded merely upon certain observations allegedly made by the Presiding Officer during the course of the proceedings. In my view, mere asking of the Presiding Officer from the counsel for the petitioner as to whether his father is in legal profession and the place from where he belongs, or in asking the petitioner not to stand at a place which is meant for the Advocates to address the Court and/or cancelling the bail and surety bonds of the petitioner on account of the fact that he failed to appear before the Court at 10.00 A. M., is hardly any material to draw the inference of bias or likelihood of bias. It is very of then that certain observations sometime even suggesting his tentative opinion are made by a Judge while presiding the Court. However, such observations have no material bearing on the final judgment. It is unfortunate that a few queries by the learned Presiding Officer in relation to professional background of a lawyer, who is none else but an officer of the court, are also sought to be capitalized by the Petitioner in order to show as if the learned Presiding Officer is biased against him. Further, it appears that the Petitioner, who is alleged to have been caught red handed while accepting a bribe of Rs. One lac, continued to be under the influence of his official status as Commissioner of Income-tax and expected the Court to accept and recognize him as such instead of an accused facing trial. The fact that the Petitioner is moving petitions one after the other, apparently suggests that he is too keen to delay the trial and the present petition seems to be in the same league. In my view, the petition not only lacks bona fide, it is totally frivolous as well and is, therefore, liable to be rejected.
17. In view of what has been held above, there is no need to delve upon the submission made by Shri Rajan Gupta, learned counsel for the CBI in relation to the powers exercised by the Central Government under Section 3 of the Prevention of Corruption Act, 1988.
18. Much has been argued in relation to the Affidavit (Annexure P-9) of Shri D.S. Malik, Advocate. However, I do not deem it appropriate to proceed further with the issue except to remind Shri Malik of what has been said by Lord Denning M. R. in the case of Rondel v. Worsley, (1967) 1 Q. B. 433.
“As an advocate he (a barrister) is a minister of justice equally with the judge………….”
It is a mistake to suppose that he (the barrister) is the mouthpiece of his client to say what he wants; or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice.”
19. With the observations afore-mentioned, I find no merit in this petition which is dismissed with costs of Rs. 1,000/-.