Rahul Sharma v. State NCT of Delhi & Ors.

18. BECAUSE, moreover the Ld. PO has some inclination towards some of the accused persons of the case as on one date of hearing i.e. 01.08.2024, the Ld. PO marked the presence of the Respondent No. 7 Manish Sharma despite the fact that he neither appeared before the court physically nor virtually.

19. BECAUSE, despite said non-appearance, instead of taking coercive steps against the said Respondent, the Ld. Trial Court marked the presence of the said Respondent in the concerned order sheetfor the reason best known to the Ld. Presiding Officer.

20. BECAUSE, even on various occasions, the Ld. PO openly supported · some of the accused persons and scolded and criticized the Petitioner as well as other eye witnesses without any reason which gives strength to the argument of the Petitioner that the Ld. PO has some personal bias against the Petitioner and some inclination towards the accused persons of the present case.

21. BECAUSE, aforesaid incidents are itself sufficient in nature to demonstrate that the Ld. PO is not presiding over the impugned trial court proceedings in an impartial manner and hence the said proceedings are liable to be transferred to any other court in order for securing a fair trial to the Petitioner guaranteed under the Constitution of India.

22. Because the Petitioner was threatened and pressurised by the accused persons namely GirirajMaheswariand Manish Sharma who are on bail along with Shri Vibudh Singh and Ors, the incident happened in open court and subsequently it was mentioned before the court on same date but no cognizance was taken against the accused persons. A NCR bearing No. 97/2024 under section 351(2) & 3(5) of BNS dated 06.12.2024 was registered against the accused persons but still no action has been taken. Copy of the same is Annexed is hereto as Annexure-M. Overzealous actions of the Ld. Trial Court indicates predetermined inclination of the Ld. Trial Court,· Fit case for transfer

23. BECAUSE, as stated aforesaid, the Ld. PO has acted excitedly and overzealously in order to examine the witnesses of the present case despite the fact they were medically unfit to do so.

24. BECAUSE, said overzealousness further grew when the second petition of the Petitioner seeking transfer of the impugned trial court proceedings was dismissed by the Ld. Principal District and Sessions Judge.

25. BECAUSE, in addition to giving stringent and adverse remarks the Ld. PO started day to day trial in present case despite the fact that numerous custody matters were still pending in the said court of similar nature. This act also raised eyebrows of doubt as to what special is there in the impugned trial court proceedings that the said case is being tried on day to day basis that too without any directions from any superior court.

26. BECAUSE, one of the strange and drastic step / order passed by the Ld. PO which again classifies the present case as a fit case for transfer is that the Ld. Trial Court on 16.12.2024 directed the IO/SHO concerned to constitute a medical board of GTB hospital on the very same day and get the health status of witness PW Dinesh Kumar Gupta and PW Jatin Verma examined by the said board on very same day.

27. BECAUSE, first of all, there is no provision under the entire Cr.P.C. or in BNSS, 2023 which gives the power to the Ld. Sessions Court to pass such directions to constitute a medical board of doctors for examining the health status of witnesses. Secondly, the passing of direction of constitution of said medical board and examination of witnesses on same day shows that the Ld. PO was highly prejudiced against the witnesses, despite the fact that PW Sh. Dinesh Kumar Gupta appeared physically despite having fracture in his foot.

28. BECAUSE, only due to orders of the Ld. Trial Court, the PW Sh. Dinesh Kumar Gupta was immediately taken by the police officials of the concerned police station to the GTB Hospital in a forceful manner without permission of the witness who was already suffering from fracture as well as high blood pressure and thereafter he was kept in GTB Hospital till 4:00 PM that too without his medical examination.

29. BECAUSE, the Ld. Trial Court has overreached its judicial jurisdiction while passing directions to constitute a medical board that too for examining health of witnesses on very same day. Moreover, the way in which the said directions has been passed in hurry and prompt manner shows that the Ld. PO is acting upon the basis of his personal grudge against the Petitioner as he has filed transfer petition twice for transferring the case from the court presided by the Ld. PO.

30. BECAUSE, conduct and behaviour of the Ld. PO suffices the preconditions which are required to show his pre-conceived notions against the Petitioner as well as witnesses and therefore in interest of justice, it would be better if the impugned trial court proceedings may be transferred to any other court and 'impugned order in question may be set aside and further quashed. Respondent No. 1 State already recorded its "no objection "before the Ld. Principal District & Sessions Judge,' hence objections of accused persons irrelevant

31. BECAUSE, it is matter of fact that the Respondent No. 1 State is one of the crucial stakeholders of the impugned trial court proceedings as the State is only the party which has registered FIR, initiated and concluded investigation, filed chargesheet against the accused persons and even prosecuting them before the Ld. Trial Court.

32. BECAUSE, during the proceedings and adjudication of the impugned transfer petition, the Ld. Principal District and Sessions Judge also asked State to give its stand pertaining to the issue of transfer to which State who was being represented through Chief Public Prosecutor recorded its statement for no objection before the said court.

33. BECAUSE, the aforesaid no objection of the State was duly recorded in the impugned order and the relevant extract of the same is being reproduced herein for kind consideration of this Hon'ble Court:- "Ld. Chief P P for State/non applicant no.] has stated that the prosecution has no objection in the trial of the matter before any court. "

34. BECAUSE, Since the Respondent No. 1 State has initiated the prosecution in the present case and the Petitioner is the Complainant as well as witness in the instant case, the no-objection given by the State is sufficient to transfer the impugned trial court proceedings to any other court of competent jurisdiction within the same district.

35. BECAUSE, objections made by the Respondents No.2 to 9 who are accused persons are irrelevant as they may have no say in the matter.pertaining to transfer of the case.

36. BECAUSE, various accused persons have already got the impugned trial court proceedings transferred on 3 different occasions from 3 different judges that too on frivolous and unjustifiable grounds therefore any objection made by them regarding the transfer of the trial court proceedings would be entirely unwarranted and irrelevant.

37. BECAUSE, when the party which has initiated entire prosecution and who is responsible for securing conviction to the accused persons has no objection for the transfer of the case, then any irrelevant objection: made by the accused persons would not be relevant to present proceedings.”

6. An additional affidavit has also been filed by the petitioner herein making similar allegations reiterating the same grounds as stated hereinabove in addition to certain instances which have occurred after passing of the impugned order dated 21.10.2024. It has been stated in the said affidavit that despite a complaint being made before the learned Trial Court with regard to the threatening of witnesses, no enquiry has been initiated. It is further submitted that on 07.12.2024, one witness Dinesh Gupta, did not appear before the learned Trial Court due to some ailment and he was admitted in the GTB Hospital. It is stated that medical documents were filed before the learned Trial Court and it was directed that the said witness be checked by a Medical Board. It is further submitted that on 12.12.2024, witness Jatin Verma was summoned, but he was busy in the rituals of his sister’s marriage and the counsel apprised the learned Trial Court of his unavailability through video conferencing, but the learned Trial Court did not consider the request and issued bailable warrants against the said witness. It is further submitted that on 13.12.2024, the said Jatin Verma was forcibly brought to the learned Trial Court by police officials from Shahdara Police Station in an intoxicated condition and he was directed to give his deposition. A complaint with regard to the said incident has been made by the said witness to the Hon’ble Chief Justice of Delhi High Court and other authorities.

7. On 21.12.2024, the learned Trial Court did not accept the oral/written request to review/reconsider the order dated 16.12.2024, which was subsequently e-filed on 19.12.2024 by witness Dinesh Gupta along with other Court records (medical document and attested affidavit). It is also stated in the aforesaid affidavit that various applications/affidavits have been e-filed before the learned Trial Court. But the learned Trial Court refused to accept or to take on record the application/NCR on date of events.

8. It is also alleged that on 01.04.2025, the petitioner inspected the Court file and was shocked to see one application filed by accused Raj Sharma complaining against Mr. R.N. Meena, Deputy Superintendent, Mandoli Jail. It is submitted that on the said application the learned Trial Court has summoned the aforesaid Deputy Superintendent and has passed an order regarding the medical checkup of accused Raj Sharma and passed certain other directions in the application. It is submitted that the learned Trial Court has taken cognizance of the application moved by the accused, whereas the application filed by the petitioner and the witnesses have not been given due consideration. These incidents, it is noted, are post passing of the impugned order dated 21.10.2024 and were not subject matter of transfer petition.

9. Per contra, learned counsel appearing on behalf of the accused/respondents submitted that the petitioner is moving the application seeking transfer to delay the proceedings. It is pointed out that the learned Trial Court is trying to expedite the trial in view of the directions given by this Court. It is further submitted that this is the second application seeking transfer from the same judge. The previous application on behalf of the present petitioner was dismissed by learned Principal District & Sessions Judge on 19.07.2024. It is further submitted that the petitioner and the witnesses at his instance are moving frivolous applications before the learned Trial Court in order to delay the proceedings. It is stated that an application has been filed by the present petitioner alleging that the answers given by the witnesses in the cross-examination were not properly recorded.

10. Heard learned counsel for the parties and perused the records.

11. The learned Principal District & Sessions Judge while passing the impugned order observed as under:

behalf of the applicant, casts doubt on the applicant and the witness Dinesh Gupta. So far as the marking of the presence of the counsel of PW Dinesh Gupta on behalf of applicant in the ordersheet dated 01.08.2024 is concerned, I have seen the ordersheet of 01.08.2024. In the said order PW Dinesh Gupta was not shown to be present in the trial court when the file was taken up on the bail application of accused Rohit Gogia. The presence of Sh. Rajbir Singh Sagar and Sh. Hitesh Pandey was marked for the complainant/applicant and as 1S reflected in the order, the complainant/applicant was also present on that date. As is averred by the applicant in the transfer application, he was summoned through PS Shahdara to appear in the bail application of accused Rohit Gogia in the case concerned as he is the complainant of the case. PW Dinesh Gupta was neither summoned nor his counsel had any occasion to appear before the trial court during hearing of the bail application of accused Rohit Gogia. It is not the case of the applicant that Sh. Rajbir Singh Sagar, Advocate was not present during the bail hearing of the matter. Even for the sake of arguments it is presumed that the presence of the counsel of PW Dinesh Gupta i.e. Sh. Rajbir Singh Sagar was wrongly marked for applicant/complainant Rahul Sharma, but the same does not constitute a real apprehension of bias sufficient to transfer the case from the trial court. Even otherwise on 01.08.2024 the matter was taken up on bail application of accused Rohit Gogia and nothing substantial was to be done as the matter was already fixed for 08.08.2024. Mere marking of presence of counsel of one prosecution witness for other prosecution witness does not cast any doubt on the integrity of the witnesses nor this is sufficient to raise a real apprehension of bias against the Presiding Officer as the prosecution witnesses have no interest adverse to ' each other.

13. In the present case how the applicant has raised an inference of bias on the basis of the wrong noting of the name of a counsel of other prosecution witness besides name of his counsel as a bias against the Presiding Officer, is difficult to comprehend based on the prudence of a reasonable man.

14. I have seen the ordersheet dated 25.07.2024 in which the trial court has marked the presence of accused Manish Sharma and Giriraj Maheshwari on bail and the other accused were shown not to be produced from J/e as on that day the file was taken up on receipt of the order of rejection of the transfer application by this court and the said date was not the regular date in the matter. Errors while marking presence, is possible where there are multiple parties and multiple counsels on both sides, as is in the present case. Even the ordersheet dated 25.07.2024 reflects the presence of the complainant alongwith his twelve Advocates (though the vakalatnama is of two counsels namely Sh. Sanjeev Bhardwaj and Sh. Hitesh Pandey) whereas, none of the counsels for the accused were present. If the applicant/complainant believed that an error has occurred in the marking of presence of the accused, he was at liberty to raise this issue before the trial court on the same day or on the immediate possible opportunity but no objection was raised by the applicant/complainant before the trial court as nothing is reflected to this effect in trial court record. This grievance is raised only in this transfer application for first time.

15. The applicant has also claimed that accused Giriraj Maheshwari and Manish Sharma are constantly threatening the complainant and other witnesses. If that be so, the same cannot be a ground to raise a reasonable apprehension of bias against the Presiding Officer who has nothing to do with the said threats extended by the · accused party to the complainant party. Moreover, PW Dinesh Gupta has already sought redressal of his grievance before the trial court who is looking into the matter and is seized of the same. So far as the averments regarding PW Dinesh Gupta receiving threat from the accused persons is concerned, the trial court is looking into the said complaint which was sent to PS Shahdara, as per his own averment in the transfer application. PW Dinesh Gupta has not raised any grievance and fut1her the threat, if any, given to PW Dinesh Guputa, is being dealt by the trial court which cannot raise any suspicion of biasness against the trial court. Moreover, PW Dinesh Gupta had raised no grievance and the present application is moved by applicant Rohit Sharma who is also one of the prosecution witness being complainant like PW Dinesh Gupta in the said FIR. Both PW Dinesh Gupta and the applicant Rahul Sharma are the witnesses of the prosecution in the chargesheet. The evidence of applicant Rahul Sharma has already been concluded. This is also no ground to raise an inference of real likelihood of bias against the Presiding Officer.” xxxx xxxx xxxx

19. In the present case, I find no malice or ill will on the part of the trial judge in marking the presence of a wrong counsel for the applicant/complainant so as to raise an inference of real bias against the trial judge, judged from the point of view of a reasonable man. The apprehensions of the applicant are not good enough to entertain the plea of bias. xxxx xxxx xxxx

23. None of the new averments of the applicant made in this transfer application are sufficient to raise an inference of real apprehension of bias against the trial judge. The remaining averments in the transfer application as stated above, are already dealt with and decided by this court in the earlier transfer application moved by the applicant and decided by the court on 19.07.2024 itself, but again raised in this application. The applicant I complainant by moving frequent applications of transfer on flimsy grounds, halts the trial of the case causing delay and prejudice to the accused who are in custody. In the facts and circumstances of the present case and for the reason recorded herein-above, there is no sufficient reason to transfer the matter from the concerned court. Finding no merit in the application, the same is hereby dismissed with cost of Rs.2,000- to be deposited by the applicant in DLSA. However, if the cost is not deposited by the applicant, the Trial Court is directed to recover the same as fine from the applicant Rahul Sharma. TCR be sent alongwith copy of this order for compliance.” (emphasis supplied)

12. Similarly, in the previous order dismissing the first application seeking transfer on behalf of the petitioner, the learned Principal District and Sessions Judge vide order dated 19.07.2024, passed the following order:

complainant/applicant herein, within three weeks from 25.11.2023. The said period expired on 15.12.2023. As the medical documents were produced on behalf of the applicant/complainant, despite the expiry of three months the case was adjourned to 04.01.2024 for the evidence of the complainant. The submissions of the applicant/complainant that he appeared at 10:00 am and was cross-examined for the whole day, do not found corroboration from the trial court record as the case was fixed for evidence on 04.01.2024 at 11:30 am. The ordersheet reveals that he was examined thereafter and he nowhere complained about his ill health on the said date. His crossexamination also records an observation of the trial court that he was persistently disturbing the court proceedings by not answering the questions, for which he was warned and then he took a break for five minutes and thereafter his crossexamination was concluded.

33. Perusal of the trial court record also reveals that the examination of PW-2 started on 10.01.2023 and the same was concluded on 04.01.2024 and during the intervening period, it took more than 15 opportunities to conclude his crossexamination. Perusal of the trial court record reveals that there is an order dated 01.11.2023 passed by Hon’ble Delhi High Court wherein the trial court was directed to ensure that recording of evidence of PW-2 be concluded within three weeks from 25.11.2023 and to also ensure that no unnecessary adjournment be granted to either of the party. Admittedly, the period of three months expired on 15.12.2023 but on account of production of medical documents of PW-2/applicant herein, the matter was again adjourned for 04.01.2024 for compliance of the directions of the Hon’ble High Court. Admittedly, there is not a single whisper about this order of Hon’ble High Court in the transfer application. The applicant has raised the allegation of bias against the trial court for recording of his evidence on 04.01.2024 but has failed to refer to the directions of Hon’ble High Court fixing time limit for conclusion of his evidence and also failed to note that already 15 dates were consumed in recording of his evidence. Perusal of the short order dated 04.01.2024 of trial court and TCR reveals that PW-2 was examined at 11:30 am, when he did not complain of any ill health nor produced any documents regarding the same as his medical documents were pertaining to 14 and 18 December, 2023. He did not raise any objection about his ill health on 04.01.2024. It is also revealed that during the crossexamination he started disturbing the court for which he was warned by the court and after some time he stated that he was not feeling well and then he was given a break and after he calm down, his further cross-examination took place. The trial court records confirms that the cross-examination after the break taken by PW-2 was very small. Hence, the allegations of bias raised by the applicant are not corroborated from the court proceedings as recorded in the trial court record and does not appear sound and reasonable.

34. It is also relevant to note this count that the applicant has not preferred any transfer application after 04.01.2024 when he was forced to make his statement on 04.01.2024. The present transfer petition is filed only on 01.05.2024 after around four months.

35. So far as the grant of bail to accused Giriraj Maheshwari on 08.04.2024 is concerned, the order is passed by the trial court in its discretion and could have been agitated before the higher court. During the course of arguments, it is revealed that infact applicant has filed an application for cancellation of bail of accused Giriraj Maheshwari before Hon’ble Delhi High Court which he himself had withdrawn. This fact is not refuted by Ld. Counsel for the applicant/complainant. The acceptance of bail bond of accused is dependent upon the satisfaction of the trial court in which admittedly the applicant/complainant has no right to interfere. If the court was satisfied, it was well within its right to accept or reject the bail bonds. The trial court accepts the bail bonds after its due satisfaction, which is purely in the domain of the court. Hence, on this ground also his apprehension of bias does not appear to be real.

36. In the application, the applicant/complainant has also leveled the allegations that after the release of accused Giriraj Maheshwari, it was informed by common known person that one of the Advocate approached the trial court for securing the bail of accused Giriraj Maheshwari as the Presiding Officer of the trial court was an Advocate and Public Prosecutor in Karkardooma Court prior to his appointment in judicial services. In this regard, I have seen the comments of the Ld. Presiding Officer who has altogether denied the allegations stating that neither the complainant nor the accused side are known to him directly or remotely nor he had ever practiced with any of the Advocates of the accused in this case, nor he had any acquaintance with any of the Advocates of the accused. Even the counsels of the accused persons have categorically denied that they have any connection or acquaintance with Presiding Officer.

37. In the entire allegations of bias on this ground, the applicant/complainant has not mentioned the name of the said known person who informed him that the trial court was approached nor he could mention the name of the Advocate who approached the trial court. All these are vague allegations without any details thereof and are not sufficient to raise an inference of real bias against the Presiding Officer.

38. It is stated by Ld. Counsel for non applicants/accused that the applicant has intentionally concealed the facts that the bail application of co-accused Raj Sharma was dismissed by the trial court and the bail application of co-accused Raj Kumar Maheshwari and Rohit Gogia were also dismissed for non prosecution before the filing of the present transfer application. It is argued by Ld. Counsels for the co-accused that the applicant/complainant has intentionally put forth the order of granting bail to Giriraj Maheshwari, which was duly granted by the trial court after considering the facts and evidence on record and that he intentionally concealed the facts of dismissal of the bail application of co-accused by the trial court so as to raise a presumption of bias against the trial court. He has not put forth these vital facts as it would have negated his averments of bias of the Presiding Officer in granting bail to co-accused persons. So far as the dismissal of the bail application of co-accused Raj Sharma is concerned, the said fact is also revealed from the trial court.

39. The other grievance of the applicant/complainant is that the trial court showed adamancy and hurry to decide the bail application of accused Manish Shanna on 27.04.2024. I have seen the trial court record, which showed that the bail application of co-accused Manish Sharma was decided by the trial court only after hearing both the sides including the applicant/complainant. The application for grant of regular bail was moved on behalf of the accused Manish Shanna on 19.04.2024, of which the notice was issued to the IO as well as to the complainant for 27.04.2024. On the said date the court heard the final arguments giving last opportunity to the complainant/prosecution to tender the complete arguments, and the matter was fixed for 30.04.2024, on which the arguments were concluded and the application was fixed for further consideration on 02.05.2024, then 04.05.2024 and finally the order was passed on 06.05.2024 on the bail application of accused Manish Sharma. As is a known fact to all that the timeline given in the judgment of Satender Kumar Anti! Vs. CBI, SLP Crl. No.5191 of 2021, passed by Hon’ble Supreme Court for passing bail orders is required to be followed scrupulously by all courts. The ordersheet nowhere reflects that it was decided hurriedly. The application was moved on 19.04.2024 and decided on 06.05.2024. The bail application was decided after hearing the applicant/complainant. It is argued that every day in prison counts for an accused and the bail application requires urgent disposal, as is the mandate of the Hon’ble Apex Court in Satender Kumar Antil (supra). As is reflected, it was the counsel for the complainant/applicant was seeking adjournments on the ground of filing the transfer application. As is revealed from the short orders of the trial court, it is difficult to accept the allegations of biasness because the court had granted effective opportunities to the applicant/complainant while hearing arguments on the bail application of accused Manish Sharma and even the accused Giriraj Maheshwari. It is thus not clear whether it was the alleged apprehension of the applicant/complainant that the trial court was biased against him or he himself had a bias against the Presiding Officer when the Presiding Officer had granted bail to one of the accused Giriraj Maheshwari, persuading him to file the transfer application in order to stop further proceedings in the matter on bailor trial.

40. Accordingly, in view of above discussion, it is clear that none of the allegations of bias levelled by applicant can be treated as real apprehension of bias so as to transfer the case from the trial court.”

13. The Code of Criminal Procedure, 1973 provides power to this Court under Section 407 to transfer criminal cases. The said provision reads as under:

(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on 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.”

14. Section 408 of the Cr.P.C. reads as under:

apply as if for the words “one thousand rupees” occurring therein, the words “two hundred and fifty rupees” were substituted.”

15. In the present petition the challenge is with respect to the order dismissing the transfer application filed on behalf of the petitioner under Section 408 of the CrPC (now Section 448 of the BNSS). It may be noted that the circumstances which have been placed on record post the passing of the impugned order by the learned Principal District and Sessions Judge cannot be now made a ground for the transfer of the case as the same was not a part of the application preferred seeking transfer. In view of Section 407(2) of the CrPC, this Court will not be able to entertain the grounds taken in the present petition as the same have not been taken before the learned Principal District and Sessions Judge for seeking transfer.

16. The powers under Section 408 of the CrPC cannot be exercised on the asking of a litigant. It is a settled law that the same can be done in exceptional circumstances where the party interested shows existence of ‘bias ‘which is apparent from the facts and circumstances of the case.

17. Learned Senior Counsel appearing on behalf of the petitioner, during the course of the arguments, stressed upon the fact that the present case was transferred from other Courts at the instance of the respondents herein. In the considered opinion of this Court, this factor even if it is taken to be true, cannot be a ground to transfer a case from one Court to the other. Be that as it may, this Court has perused the orders passed by the Courts while transferring the present case and the same was done at the instance of the learned Court concerned.

18. In the present case, as has been highlighted hereinabove, the grievance of the petitioner is that the learned Trial Court is passing orders detrimental to the interests of witnesses. The instances highlighted by the petitioner have been squarely dealt with by the learned District and Sessions Court in the transfer application. As already noted, the present impugned order was on a second application moved by the petitioner for seeking transfer.

19. It is pertinent to note that the present FIR is dated 22.04.2019 and has been pending since then. The trial of the said case was transferred to the present learned Trial Court on 22.12.2023 and thereafter the matter has been kept for prosecution evidence. A perusal of the record reflects that the learned Trial Court has been insisting on the examination of the eye-witnesses on account of directions passed by this Court in various bail applications moved on behalf of the various respondents/co-accused persons. The instances referred to by the present petitioner was on account of such directions passed and an endeavor made by the learned Trial Court to ensure that the evidence is recorded. Delay in trial cannot be conducive to the interest of either the prosecution or the accused persons or for that matter the complainant, i.e., the present petitioner in this case.

20. One of the primary reasons of the petitioner was that the learned Trial Court was ‘over zealous’ in examining the witnesses in the present case despite them being medically unfit to do so.

21. At this stage, it would be appropriate to refer to some of the orders passed by the learned Trial Court with respect to the aforesaid allegation. Some of the orders are being reproduced as under:- SCNo.485/2019 “STATE Vs.

AJAY SHARMA & ORS. FIR No. 90/2019 PS Shahdara 12.12.2024 Present:- None for the State. Accused Manish Sharma and Giriraj Maheshwari present in person on bail. Accused Ajay Sharma, Raj Kumar Maheshwari, Raj Sharma, Neeraj Bhanot, Rohit Gogia and Chokhe Ram produced from JC. Sh. Vibudh Singh, Ld. Counsel for accused Manish Sharma. Sh. Manish Kumar Singh, Ld. Counsel for accused Raj Sharma and Rohit Gogia. Sh. Anil Kumar Sharma and Sh. S.S. Rawat, Ld. Counsels for accused Raj Kumar Maheshwari, Neeraj Bhanot and Giriraj Maheswari. Sh. Rajesh Yadav, Ld. Remand Advocate for accused Choke Ram and Ajay Sharma. Ld. Regular APP is on leave today. PW Deepak Malhotra was summoned, but summons received back with the report that he was not traceable at this address and his whereabouts are not known. Let PW Deepak Malhotra be summoned afresh through DCP concerned. PW Jatin Verma is served for today, but he has not appeared despite waiting and repeated calls since morning. In these circumstances, issue BW against him in the sum of Rs. 10,000/through SHO concerned for the next date. It is submitted by Ld. Counsels for accused persons that PW Jatin Verma was seen outside the Court of Ld. PDJ, Shahdara during the hearing of transfer petition on 16.10.2024, but he was deliberately not appeared today to delay the trial. After examination of PW Rahul Sharma, no witness has been completely examined and unnecessarily delay is being caused by the prosecution by not bringing the witnesses. Let DCP concerned explain as to why the prosecution has failed to bring the witnesses to the Court despite directions, which is causing unnecessarily delay affecting the rights of accused persons. DCP concerned is directed to monitor the trial of this case till all the public witnesses are examined. SHO, Shahdara was directed to get the PW Dinesh Kumar Gupta examined through Medical Board at GTB Hospital regarding his medical condition. Let SHO, Shahdara also file a report what has been done in this respect as copy of the order has already been served upon hi and the MS, GTB Hospital. Put up for PE on date already fixed i.e. 13.12.2024. Copy of this order be sent to DCP concerned and SHO, Shahdara for compliance.” SCNo.485/2019 STATE Vs.

AJAY SHARMA & ORS. 16.12.2024 Present:-Sh. Sobit, Ld. Additional PP for the State. Accused Ajay Sharma, Raj Kumar Maheshwari Raj Sharma:, Neeraj Bhanot, Rohit Gogia and Chokhe Ram produced from JC. Sh. Manish Kumar Singh and Sh. Akash Bansal, Ld. Counsels for accused Raj Sharma and Rohit Gogia. Sh. Vibudh Singh, Ld. Counsel for accused Manish Sharma. Sh. Shubham. Asri, Ld. Counsel for accused Ajay Sharma appeared through VC. accused ChokheRam, Raj Kumar Maheshwari and Neeraj Bhanot. Sh. Rajbir Singh Sagar, Ld. Counsel for witness Dinesh Kumar Gupta. Sh. Dishank, Ld. Counsel for witness Jatin Verma. Sh. Hitesh Pandey, Ld. Counsel for the complainant. SHO, Shahdara Kanhaiya Lal Yadav and HC Punia present in person. An exemption application has been filed on behalf of witness Jatin Verma on the ground that he is ill and unable to appear today. Certain medical documents of Tulsi Multi-specialty Hospital dated 14.12.2024 and GTB Hospital also dated 14.12.2024 of the witness have been filed along with application. He is exempted for today only. PW Dinesh Kumar Gupta whose cross-examination is pending, has appeared and submits that he is not feeling well. As per the alleged history, he had slipped and suffered fracture in the leg though he has appeared and walking on his own foot without assistance, but he is not ready to give his deposition and submits that he is having high BP though he has not shown any document. He is exempted for today only. It is seen that witnesses are making lame excuses every now and then to avoid getting examined themselves and it appears that they are doing so to delay the trial unnecessarily and it has been observed by the Court since last 8-9 months that witnesses are not being produced by the prosecution for examination or when they appear they make excuses on different pretext, which is against the fair trial. Every witness is getting ill suddenly whenever they called to the Court otherwise they appear in Court in other proceedings even when they are not called. SHO, Shahdara is present and submits that witness Dinesh Kumar Gupta will be examined from the Medical Board of GTB Hospital today, which is also reflected in the status report filed today. Let SHO, Shahdara take the witness to the GTB Hospital and get him examined and submit the report by 21.12.2024. SHO, Shahdara is also directed to get PW Jatin Verma also examined from the Medical Board at the said hospital and also submit the report by 21.12.2024. Ld. Counsel for witness is directed to supply the medical documents to SHO, Shahdara. As per the last report received, PW Deepak Malhotra is unserved through SHO Let PW Deepak Malhotra be summoned afresh through DCP concerned. Put up for further consideration/PE on 21.12.2024. Copy dasti to SHO, Shahdara.” “SC No. 485/2019 STATE Vs.

AJAY SHARMA & Others 21.12.2024 Present: - Sh. Pramod, Ld. Substitute Additional PP for the State. Accused Ajay Sharma, Raj Kumar Maheshwari, Raj Sharma, Neeraj Bhanot, Rohit Gogia and Chokhe Ram produced from JC through VC. Sh. Anil Kumar Sharma, Ld. Counsel for accused Raj Kumar Maheshwari and Neeraj Bhanot. Sh. Manish Kumar Singh, Ld. Counsel for accused RajSharma and Rohit Gogia. Sh. Rajesh Dubey, Ld. Proxy counsel for accused Manish Sharma. accused Chokhe Ram and Ajay Sharma. Sh. Dishank and Ms. Prachi Singh, Ld. Counsels for witness Jatin Verma. Sh. Rajbir Singh Sagar, Ld. Counsel for witness Dinesh Kumar Gupta. Sh. Hitesh Pandey, Ld. Counsel for the complainant along with complainant. Ld. Regular Addl. PP is on leave today. One Steno is also on leave today. Summons issued to PW Deepak Malhotra through DCP received back unserved that he is not traceable. Prosecution is at liberty to examine this witness as and when he is traced. A report has been submitted on behalf of SI Naresh Kumar Sharma of PS Shahdara that both these witnesses namely Dinesh Kumar Gupta and Jatin Verma could not be found at their addresses and thus, opinion of the medical board could not be taken. One more report has been filed by said SI Naresh Kumar Sharma to the effect that medical opinion of Dinesh Kumar Gupta was collected from GTB Hospital and as per the opinion, the patient has not been advised for bed rest and he was advised for investigation, but he did not report back so far, which shows that witnesses had made lame excuses just to avoid their deposition before the Court in a planned manner. Issue fresh summons to PWs Dinesh Kumar Gupta and Jatin Verma through DCP concerned for the next date. Receipt of cost of Rs. 2",000/- has been filed by the complainant, which was imposed against him by Ld. PDJ", Shahdara. Same is taken on record. Put up for PE on 10.01.2025.”

22. A perusal of the aforesaid orders would reflect that the apprehension of the learned Trial Court was to an extent justifiable and therefore a medical board was constituted to examine the said witnesses. The aforesaid orders further reflects that no witnesses were examined for 8-9 months on different pretexts and therefore the directions had been given by the learned Trial Court to the DCP for ensuring the witnesses are present in Court for the examination. In the considered opinion of this Court, these directions cannot be considered ‘over zealous’ and cannot be taken to be in any way biased. Even if the concerned witness was aggrieved by the constitution of such a board then he could have always exercised his judicial remedy.

23. One of the grounds taken by the present petitioner is as follows:- “25. BECAUSE, in addition to giving stringent and adverse remarks the Ld. PO started day to day trial in present case despite the fact that numerous custody matters were still pending in the said court of similar nature. This act also raised eyebrows of doubt as to what special is there in the impugned trial court proceedings that the said case is being tried on day to day basis that too without any directions from any superior court.”

24. The aforesaid ground itself shows that the grievance of the petitioner is not justifiable in order to reflect a ground of bias at the hands of the learned Trial Court.

25. The Hon’ble Supreme Court in Usmangani Adambhai Vohra v. State of Gujarat And Another[1], has observed and held as under: - “7. So far as apprehension is concerned, it has to be one which would establish that justice will not be done. In this context, we may profitably refer to a passage from a three-Judge Bench decision in Gurcharan Das Chadha v. State of Rajasthan [Gurcharan Das Chadha v. State of Rajasthan, AIR 1966 SC 1418: 1966 Cri LJ 1071], wherein it has been held: (AIR p. 1423, para 13) “13. … The law with regard to transfer of cases is well settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.”

8. This Court in Abdul Nazar Madani v. State of T.N. [Abdul Nazar Madani v. State of T.N., (2000) 6 SCC 204: 2000 SCC (Cri) 1048] has ruled that: (SCC pp. 210-11, para 7)

9. In Amarinder Singh v. Parkash Singh Badal [Amarinder Singh v. Parkash Singh Badal, (2009) 6 SCC 260: (2009) 2 SCC (Cri) 971], while dealing with an application for transfer petition preferred under Section 406 CrPC, a three-Judge Bench has opined that for transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done. It has also been observed therein that merely an allegation that there is an apprehension that justice will not be done in a given case alone does not suffice. It is also required on the part of the Court to see whether the apprehension alleged is reasonable or not, for the apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension. In the said context, the Court has held thus: (SCC p. 273, paras 19-20)

getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the court to be a reasonable one.”

10. In Lalu Prasad v. State of Jharkhand [Lalu Prasad v. State of Jharkhand, (2013) 8 SCC 593: (2013) 4 SCC (Civ) 103: (2013) 4 SCC (Cri) 406: (2014) 1 SCC (L&S) 137], the Court, repelling the submission that because some of the distantly related members were in the midst of the Chief Minister, opined that from the said fact it cannot be presumed that the Presiding Judge would conclude against the appellant. From the said decision, we think it appropriate to reproduce the following passage: (SCC p. 600, para 20)

The aforesaid passage, as we perceive, clearly lays emphasis on sustenance of majesty of law by all concerned. Seeking transfer at the drop of a hat is inconceivable. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice.”

26. It has further been contended that there was no objection from the State in respect to the application seeking transfer. Reliance is being placed on the following observations in the impugned order: - “Ld. Chief P P for State/non applicant no.1 has stated that the prosecution has no objection in the trial of the matter before any court.”

27. It is submitted that the no objection given by the State was sufficient to transfer the trial to a different Court. The aforesaid contention is not tenable as all that the learned Chief Public Prosecutor had stated was that he has no objection if the trial takes place in any Court. In no manner the aforesaid statement can be taken to signify that there was an actual no objection given by the State to the transfer application filed on behalf of the petitioner. If the State had any grievance, then they were well within their right to move a separate application seeking transfer.

28. It is pertinent to note that although in the present petition it is stated: “8. BECAUSE, with utmost respect to the judicial integrity of the Ld. Presiding Officer of the Ld. Trial Court namely Sh. Kumar Rajat, it.is humbly submitted that the conduct and behaviour of the said presiding officer shows that he has some personal bias and prejudiced mind-set against the Complainant as well as eye witnesses of the impugned trial court proceedings.” However, first round of transfer application was dismissed by the Principal District & Sessions Judge by observing as under:

36. In the application, the applicant/complainant has also leveled the allegations that after the release of accused Giriraj Maheshwari, it was informed by common known person that one of the Advocate approached the trial court for securing the bail of accused Giriraj Maheshwari as the Presiding Officer of the trial court was an Advocate and Public Prosecutor in Karkardooma Court prior to his appointment in judicial services. In this regard, I have seen the comments of the Ld. Presiding Officer who has altogether denied the allegations stating that neither the complainant nor the accused side are known to him directly or remotely nor he had ever practiced with any of the Advocates of the accused in this case, nor he had any acquaintance with any of the Advocates of the accused. Even the counsels of the accused persons have categorically denied that they have any connection or acquaintance with Presiding Officer.

37. In the entire allegations of bias on this ground, the applicant/complainant has not mentioned the name of the said known person who informed him that the trial court was approached nor he could mention the name of the Advocate who approached the trial court. All these are vague allegations without any details thereof and are not sufficient to raise an inference of real bias against the Presiding Officer. This further shows that the apprehension of bias expressed on behalf of the petitioner is unwarranted and baseless.

29. In the totality of the facts and circumstances, no grounds for interference is made out in the order passed by the learned Principal and District Sessions Judge, Shahdara District, Karkardooma Courts, Delhi.

30. The petition is dismissed and disposed of accordingly along with all pending applications.

31. Interim order dated 09.01.2025 stands vacated.

32. Learned Trial Court is requested to expedite the recording of evidence in accordance with law.

33. Copy of the judgment be communicated to the learned Trial Court for necessary information and compliance.

34. Judgment be uploaded on the website of this Court forthwith. AMIT SHARMA, J. MAY 07, 2025/bsr/sn/kr/pr