Calcutta High Court (Appellete Side)
Central Bureau Of Investigation vs Madan Gopal Mitra on 15 May, 2015
Author: R. K. Bag
Bench: R. K. Bag
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice R. K. Bag, J.
CRR No.1501 of 2015 Central Bureau of Investigation V. Madan Gopal Mitra For the Petitioner : Mr. Raghavacharyulu, Mr. Ashraf Ali, For the Opposite Party : Mr. Ashok Banerjee, Mr. Sekhar Basu, Mr. Milan Mukherjee, Mr. N. Bhattacharjee, Mr. Uttiyo Mallick, Heard on : 13.05.2015 and 14.05.2015.
Judgment on : 15.05.2015
R. K. Bag, J.
The application under Section 407 and 482 of the Code of Criminal Procedure, 1973 is filed by the petitioner, Central Bureau of Investigation praying for transfer of Criminal Misc. Case No.3258 of 2015 filed by the opposite party for bail under Section 439 of the Code of Criminal Procedure before the Court of Learned Sessions Judge, South 24-Parganas at Alipore.
2. The backdrop of the present case, in brief, is that on May 9, 2014 the Supreme Court transferred the investigation of the following cases registered in different police stations in the State of West Bengal and Orissa from the State Police Agency to the Central Bureau of Investigation which are laid down in paragraph 42 of "Subrata Chattoraj V. Union of India" and "Alok Jena V. Union of India" reported in (2014) 8 SCC 768, which are as follows: "42.1- All cases registered in different police stations of the State against Saradha Group of Companies including Crime No.102 registered in Bidhannagar Police Station, Kolkata (North) on 06.05.2013 for the offences punishable under Sections 406, 409, 420 and 120B IPC, 42.2- All cases in which the investigation is yet to be completed registered against any other company up to the date of this order, 42.3- CBI shall be free to conduct further investigation in terms of Section 173 (8) Cr.P.C. in relation to any case where a charge-sheet has already been presented before the jurisdictional court against the companies involved in any chit fund scam, 42.4- All cases registered against the 44 companies mentioned in our order dated 26.03.2014 passed in "Subrata Chattoraj V. Union of India." CBI is also permitted to conduct further investigations into all such cases in which charge-sheets have already been filed."
3. The petitioner, Central Bureau of Investigation (hereinafter referred to as CBI) took up the investigation and arrested the opposite party on 12.12.2014. The charge-sheet was submitted against the opposite party on 18.02.2015 for the offence under Section 120B/420/409 of the Indian Penal Code and under Section 4 and 6 of the Prize Chit Money Circulation (Banning) Act, 1978. The application for bail of the opposite party was rejected by Learned Sessions Judge, Alipore on 11.02.2015. On 12.02.2015 the opposite party preferred application for bail before the High Court by filing CRM No.1363 of 2015. The hearing of the bail petition before the Hon'ble Division Bench was adjourned to 24.03.2015. The hearing of the said application for bail was again adjourned to 07.04.2015 and ultimately the date of hearing was fixed on 16.04.2015. The hearing was not done on 16.04.2015 as one of the Hon'ble Judges of the Division Bench recused herself from hearing of the case. Ultimately, the said application for bail of the opposite party was taken up for hearing by another Hon'ble Division Bench of this Court on 20.04.2015, but on 22.04.2015 the said application was withdrawn and dismissed with liberty to the opposite party to approach the court of Learned Additional Chief Judicial Magistrate. On 23.04.2015 the opposite party moved the application for bail before Learned Additional Chief Judicial Magistrate, Alipore and his application was rejected. On 24.04.2015 the opposite party filed application for bail before Learned Sessions Judge, Alipore which was registered as Criminal Misc. Case No.3258 of 2015. Learned Sessions Judge gave direction to notify learned public prosecutor and to call for case diary and fixed the date of hearing on 13.05.2015. On 27.04.2015 the record was put up before learned Sessions Judge on prayer of the opposite party and on 27.04.2015 Learned Sessions Judge called for a medical report about the ill health of the opposite party from the Superintendent, IPGMER, SSKM Hospital, Kolkata with direction to submit the report by 29.04.2015. On 29.04.2015 Learned Sessions Judge preponed the date of hearing of the bail application of the opposite party from 13.05.2015 to 11.05.2015 on the ground that application for bail of another co-accused person in connection with the said case is fixed for hearing on 11.05.2015. The petitioner has prayed for transfer of the Criminal Misc. Case No.3258 of 2015 from the Court of Learned Sessions Judge, Alipore to the Hon'ble High Court for hearing as the petitioner apprehends that the petitioner will not get fair justice from Learned Sessions Judge, Alipore.
4. Mr. Sekhar Basu, Learned Senior Counsel appearing on behalf of the opposite party has taken the preliminary objection about the maintainability of the application under Section 407 of the Code of Criminal Procedure for transfer of Criminal Misc. Case No.3258 of 2015 from the Court of Learned Sessions Judge, Alipore. By drawing analogy from the provision of Section 24 of the Code of Civil Procedure and by comparing the provision of Section 24 of the Code of Civil Procedure with the provision of Section 407 of the Code of Criminal Procedure, Mr. Basu argues that the words "other proceedings" appearing in Section 24 of the Code of Civil Procedure are conspicuously absent from the provision of Section 407 of the Code of Criminal Procedure. Mr. Basu submits that application for bail under Section 439 of the Code of Criminal Procedure does not fall within the ambit of "inquiry" or "trial" as laid down in Section 407(1) (a) of the Code of Criminal Procedure. According to Mr. Basu, the provision of Section 407 of the Code of Criminal Procedure can be invoked only for transfer of a case where the aggrieved party apprehends that fair and impartial "inquiry" or "trial" cannot be done in the Criminal Court subordinate to the High Court. By referring to the provisions of Section 407 (1) (ii) and (iv) of the Code of Criminal Procedure Mr. Basu has strenuously argued that only an appeal or any particular case pending in any court subordinate to the High Court can be transferred to another subordinate court or to the High Court and that any particular case cannot by any stretch of imagination will include an application for bail under Section 439 of the Code of Criminal Procedure. Mr. Basu contends that the question of transfer of application for bail is conspicuously absent from the provision of Section 407 of the Code of Criminal Procedure. Mr. Basu has specifically contended that the word "inquiry" appearing in Section 407 of the Code of Criminal Procedure does not include adjudication on application for bail. The sum and substance of the submission made by Mr. Basu is that the Criminal Misc. Case No.3258 of 2015 pending before the Court of Learned Sessions Judge being an application for bail under Section 439 of the Code of Criminal Procedure cannot be transferred by the High Court by invoking the provision of Section 407 of the Code of Criminal Procedure.
5. Mr. Raghavacharyulu, Learned Special Public Prosecutor appearing for the petitioner, CBI contends that the definition of "inquiry" in Section 2(g) of the Code of Criminal Procedure includes within its ambit every inquiry other than a trial conducted under the Code of Criminal Procedure by the court. According to Mr. Raghavacharyulu, application for bail under Section 439 of the Code of Criminal Procedure registered as Criminal Misc. Case No.3258 of 2015 before the Learned Sessions Judge, Alipore can be heard and adjudicated by the High Court after transfer of the same to the High Court under Section 407 of the Code of Criminal Procedure. By referring to the provisions of Section 407 (1) (c) and Section 407 (1) (ii) and
(iv) Mr. Raghavacharyulu has tried to impress upon me that the Criminal Misc. Case pending before Learned Sessions Judge falls within the ambit of "any particular case" and the same can be transferred for "ends of Justice". Mr. Raghavacharyulu has strenuously argued that the High Court can adjudicate on the application for bail of the opposite party by transferring the case from Learned Sessions Judge to this Court as laid down under Section 407 (1) (iv) of the Code of Criminal Procedure, because the word "tried" appearing in the said provision means adjudication. Mr. Raghavacharyulu has also pointed out that the application of the petitioner for transfer of the Criminal Misc. Case is also under section 482 of the Code of Criminal Procedure, which can be invoked by the High Court to prevent abuse of the process of the court or to secure the ends of justice. The sum and substance of the submission made by Mr. Raghavacharyulu is that the present application filed by the petitioner for transfer of the Criminal Misc. Case from the Court of Learned Session Judge, Alipore is maintainable in law.
6. For proper appreciation of the rival contentions made by Learned Counsel of both parties, it is relevant to quote the provision of Section 407 of the Code of Criminal Procedure, which is as follows:
407. Power of High Court to transfer cases and appeals: (1) Whenever it is made to appear to the High Court:
"(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or,
(b) that some question of law of unusual difficulty is likely to arise, or,
(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order:
(i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a Court of Session; or
(iv) that any particular case or appeal be transferred to and tried before itself.
(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:
Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.
(4) When such applicable is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made, and no order shall be made on the merits of the applications 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 interest 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."
7. On perusal of the provision of Section 407 (1) (c) and (ii) I find that whenever it is made to appear to the High Court that an order under this section is expedient for the ends of justice, it may order that any particular case be transferred from a criminal court subordinate to its authority to another subordinate criminal court of equal or superior jurisdiction. Accordingly, any particular case may be transferred from one Sessions Court to another Sessions Court if the High Court is of the opinion that it is expedient for the ends of justice. The ambit of Section 407 of the Code of Criminal Procedure is wide enough to transfer any particular case, and this power is not restricted to cases pending for "inquiry" or "trial" before the Criminal Court as contended on behalf of the opposite party. The High Court can invoke the provision of Section 407 of the Code of Criminal Procedure whenever an order is required under any provision of the Code or for general convenience of the parties or witnesses or when it is expedient for ends of justice. Now the question for consideration is whether the application for bail under Section 439 of the Code of Criminal Procedure registered as Criminal Misc. Case No.3258 of 2015 by Learned Sessions Judge, Alipore can be construed as "any particular case" appearing in Section 407(1) (ii) of the Code of Criminal Procedure. It is true that the application for bail is an offshoot of the main criminal proceeding. The classification of cases for the purpose of registration before the criminal court subordinate to the High Court at Calcutta is governed by the provisions of the Calcutta High Court Criminal (Subordinate Courts) Rules 1985. It appears from Rule 375(6) (iii) that a separate register is maintained in the Sessions Court for miscellaneous cases under any provision of law, if those cases do not fall within the category of appeal or revision. Since the application for bail of the opposite party under Section 439 of the Code of Criminal Procedure is registered as Criminal Misc. Case No.3258 of 2015 by Learned Sessions Judge, Alipore as reflected from the order dated 24.04.2015 passed by Learned Sessions Judge, the said Criminal Misc. Case will definitely come within the ambit of "any particular case" appearing in Section 407 (1) (ii) and (iv) of the Code of Criminal Procedure. It is pertinent to point out that the petitioner has also filed the present application under Section 482 of the Code of Criminal Procedure, which can be invoked by the High Court to prevent abuse of the process of the Court and to secure the ends of justice. In view of my above findings, I have no hesitation to hold that the application filed by the petitioner CBI under Section 407 read with Section 482 of the Code of Criminal Procedure for transfer of Criminal Misc. Case No.3258 of 2015 from the Court of Learned Sessions Judge, Alipore to any other Sessions Court or to the High Court is maintainable in law.
8. Now I would like to decide the fate of this application on merit.
Mr. Raghavacharyulu, Learned Senior Public Prosecutor for the petitioner, CBI submits that the petitioner reasonably apprehends that the petitioner will not get fair justice from the Court of Learned Sessions Judge, Alipore if the application for bail under Section 439 of the Code of Criminal Procedure filed by the opposite party is heard by him. According to Mr. Raghavacharyulu, the reasons for apprehension of the petitioner are as follows: (i) On 24.04.2015 Learned Sessions Judge gave direction for service of notice on learned public prosecutor for CBI and fixed the date of hearing of the application for bail on 13.05.2015. The copy of the said application for bail was received by CBI in the evening on 28.04.2015. The opposite party pointed out in paragraph 29 of the application for bail filed before Learned Sessions Judge that he is unwell and all medical reports of the opposite party from Medical Board were part of the case record. However, on 27.04.2015 Learned Sessions Judge passed an order behind the back of the petitioner calling for a medical report about the opposite party from the superintendent of IPGMER, SSKM Hospital, Kolkata with specific direction to submit the report regarding ill health of the opposite party by 29.04.2015. The petitioner, CBI is still now in the dark about the said application filed by the opposite party behind the back of the petitioner on 27.04.2015. (ii) On 29.04.2015 Learned Sessions Judge passed the order for preponing the date of hearing of bail petition of the opposite party from 13.05.2015 to 11.05.2015 without any application in this regard from the opposite party. The petitioner, CBI was not aware that the hearing of the bail petition will be preponed from 13.05.2015 to 11.05.2015 by Learned Sessions Judge by passing an order on 29.04.2015, as the date of hearing on 29.04.2015 was not notified to the petitioner, CBI in advance. Learned Sessions Judge preponed the date of hearing of the application for bail from 13.05.2015 to 11.05.2015 immediately after receiving the medical report of the opposite party on 29.04.2015 and taking advantage of presence of Learned Special Public Prosecutor of the petitioner, CBI in Court in connection with another case. (iii) Learned Sessions Judge passed the order for relaxation of condition of bail of another co-accused person on 29.04.2015 in Criminal Misc. Case No.1736 of 2015, in spite of pendency of the application for cancellation of bail of the said co-accused person before the High Court and in spite of drawing the attention of Learned Sessions Judge that the Judicial discipline demands that the application for relaxation of condition of bail may not be heard till disposal of the application for cancellation of bail by the High Court. Mr. Raghavacharyulu has relied on the decision of the Supreme Court in the case of "Satish Jaggi V. State of Chhattisgarh and others" reported in (2007) 3 SCC 62 and the case of "Gurcharan Das Chadha V. State of Rajasthan" reported in AIR 1966 SC 1418 in support of his contention that the petitioner reasonably apprehends that the petitioner will not get fair justice from Learned Sessions Judge, Alipore.
9. Mr. Ashok Banerjee, Learned Senior Counsel appearing on behalf of opposite party submits by referring to the contents of the revisional application filed by the petitioner that Learned Sessions Judge has done procedural irregularity which cannot give rise to reasonable apprehension of the petitioner that the petitioner will not get fair justice from Learned Sessions Judge, Alipore. Mr. Sekhar Basu, Learned Senior Counsel appearing on behalf of the opposite party submits that notice of application for the bail filed by the opposite party being Criminal Misc. Case No.3258 of 2015 was served on the petitioner in his office on 27.04.2015, but the said notice might not have been communicated to Learned Special Public Prosecutor till 29.04.2015. Mr. Basu has clarified that Learned Special Public Prosecutor of the petitioner, CBI was present in the Court of Learned Sessions Judge on 29.04.2015 in connection with hearing of application for bail of another co-accused person and as such the date of hearing of the bail petition of the opposite party was preponed in his presence from 13.05.2015 to 11.05.2015. Mr. Basu has also clarified that the date was fixed for hearing of the bail petition of the opposite party on 11.05.2015 instead of 13.05.2015 by Learned Sessions Judge, Alipore as the said date was already fixed for hearing of bail petition of another co-accused person of the said case. Mr. Basu has strenuously argued that the apprehension of the petitioner must be valid and reasonable which will be accepted by the court of law. He states that there is no semblance of logic and reason of apprehension of the petitioner about the unfair justice from Learned Sessions Judge, Alipore. By referring to the provision of illustration (e) to Section 114 of the Evidence Act, Mr. Basu contends that the regularity of performance of judicial work will be presumed by the court. According to Mr. Basu, there is no semblance of irregularity in the order of Learned Sessions Judge in calling for medical report about the ill health of the opposite party and in preponing the date of hearing of application for bail in presence of both sides. Mr. Basu submits that relaxation of condition of bail of one co- accused person during pendency of cancellation of bail of the said co-accused person before the High Court cannot give rise to reasonable apprehension of the petitioner that the petitioner will not get fair justice from Learned Sessions Judge, Alipore. Lastly, Mr. Basu has urged this court to consider whether this court will exercise the power of transfer under Section 407 of the Code of Criminal Procedure for transferring the Criminal Misc. Case from the court of Learned Sessions Judge, Alipore to the High Court because the said Criminal Misc. Case No.3258 of 2015, if transferred to this Court, will be taken up for hearing by the Hon'ble Division Bench of the High Court due to alleged involvement of the opposite party under Section 409 of the Indian Penal Code as per provisions of the Calcutta High Court Appellate Side Rules.
10. Having heard the rival contentions of both parties I would like to observe that the Supreme Court has well settled the law with regard to transfer of cases in "Gurcharan Das Chadha V. State of Rajasthan" reported in AIR 1966 SC 1418 by laying down that 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. The 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 also held in "Gurcharan Das Chadha (Supra) that 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.
11. In "Satish Jaggi V. State of Chhattisgarh" reported in (2007) 3 SCC 62 the transfer of a Sessions Trial was sought for primarily on the ground that the Sessions Judge before whom the trial was pending was the elder brother of a sitting MLA who was very close to the father of one of the accused persons. According to the petitioner seeking transfer, he was under a bona fide and genuine apprehension that he would not get justice if the trial was conducted and concluded by the said Sessions Judge. The High Court refused to transfer the case, but the Supreme Court reversed the decision of the High Court and transferred the case by holding that the transfer was not to be construed as casting any aspersion on the Learned Sessions Judge. It is also held by the Supreme Court in paragraph 11 of "Satish Jaggi" (Supra) that justice is not only to be done but also seen to be done and in view of the peculiar facts of the case it will be appropriate if the High Court transfers the case to some other Sessions Court in Raipur, Chhattisgarh.
12. In the unreported case of "Kanaklata V. State (NCT) of Delhi"
decided by the Supreme Court on February 4, 2015 (Criminal Appeal No.222 of 2015 arising out of SLP (Cri No.881 of 2014), the Sessions Judge, discharged the accused persons for the offence under Section 3 (i)(x)(xi)(xv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and transferred the case to the court to Learned Magistrate for consideration whether charge under Section 323/354 of the Indian Penal Code can be framed against the accused persons. The said order of Learned Sessions Judge was set aside by the High Court at Delhi and the Sessions Judge was directed to reconsider the issue of charge hearing. In the above circumstances, the complainant moved the High Court for transfer of the Sessions Case from the court of Learned Sessions Judge to another Sessions Court at Delhi. The High Court refused to transfer the said case. The complainant preferred special leave petition before the Supreme Court. In this Case the majority of three Judge Bench of the Supreme Court directed for transfer of the case by assigning reasons in paragraph 5 as follows: "The earlier order passed by the trial court is so strongly worded that it could in all likelihood give rise to a reasonable apprehension in the mind of the complainant which cannot be lightly brushed aside. We must hasten to add that we are not in the least suggesting that the Presiding Officer of the trial court is totally incapable of adopting a fair approach while passing a fresh order but then the question is not whether the judge is biased or incapable of rising above the earlier observations made by her. The question is whether the apprehension of the complainant is reasonable for us to direct a transfer. Justice must not only be done but seem to have been done. A lurking suspicion in the mind of the complainant will leave him with a brooding sense of having suffered injustice not because he had no case, but because the Presiding Officer had a preconceived notion about it. On that test we consider the present to be a case where the High Court ought to have directed a transfer. In as much as it did not do so, we have no option but to interfere and direct transfer of the case to another court."
13. Learned Senior Counsel for the opposite party submits that the minority view of "Kanaklata V. State (NCT) of Delhi" (Supra) is more rational and as such the minority view may be followed by this Court. It is also submitted on behalf of the opposite party that the Supreme Court has passed the order in "Kanaklata" (Supra) under Article 142 of the Constitution of India and the said decision being an order has no binding force under Article 141 of the Constitution of India. On perusal of the decision of the Supreme Court in "Kanaklata" (Supra), I find that the Supreme Court has delivered judgment and directed transfer of the case by setting aside the order of the High Court passed under Section 407 of the Code of Criminal Procedure. The Supreme Court has not invoked Article 142 of the Constitution as contended on behalf of the opposite party. So, the majority view of the Supreme Court in "Kanaklata" (Supra) is binding as precedent under Article 141 of the Constitution of India. The last argument advanced on behalf of the opposite party is that the decisions of the Supreme Court relied on by the petitioner, CBI are not in connection with transfer of application for bail. In this regard I would like to observe that the principle of transfer of the case enunciated by the Supreme Court in all the decisions cited above will be applicable for transfer of Criminal Misc. Case No.3258 of 2015, though the said Misc. Case is an application for bail under Section 439 of the Code of Criminal Procedure.
14. With regard to the submission made by Mr. Basu that the Court will presume the regularity of performance of judicial work as laid down in illustration (e) to Section 114 of the Evidence Act, I fully agree that the Court will always presume the regularity of performance of judicial work as laid down under the law. This presumption will be available with regard to performance of work reflected in the order passed by the Court. In the instant case admittedly Learned Sessions Judge has called for medical report about the opposite party from the Superintendent IPGMER, SSKM Hospital on 27.04.2015 without service of copy of the said application on the petitioner, CBI and the order has been passed behind the back of the petitioner, CBI as reflected from the order passed by Learned Sessions Judge on 27.04.2015. There is nothing on record to indicate that Learned Sessions Judge gave advance notice to the petitioner, CBI before 29.04.2015 for preponing the date of hearing of Criminal Misc. Case No.3258 of 2015 from 13.05.2015 to 11.05.2015, but the date of hearing was preponed after arrival of the medical report of the opposite party on 29.04.2015 taking advantage of presence of Learned Special Public Prosecutor of the CBI in the Court in connection with the hearing of the another case. The procedural lapse on the part of Learned Sessions Judge, Alipore may not cast aspersion on his impartiality as a judge. However, the issue before us is whether the petitioner, CBI had reasonable apprehension of not getting fair justice from Learned Sessions Judge, Alipore in view of the circumstances pointed out on behalf of the petitioner, CBI hereinabove.
15. In the instant case the application for bail of the opposite was registered as Criminal Misc. Case No.3258 of 2015 before Learned Sessions Judge, Alipore on 24.04.2015. On 24.04.2015 Learned Sessions Judge directed for service of notice on Learned Public Prosecutor for the petitioner, CBI and fixed the date of hearing of the bail petition on 13.05.2015. The opposite party has pointed out in paragraph 29 of his application for bail filed before Learned Sessions Judge, Alipore that he has been suffering from various ailments including respiratory trouble, hypertension, diabetes and all medical reports from the medical board are already part of the record. Mr. Basu has clarified during his argument that this medical reports are available in the record of application for bail filed by the opposite party before the court of Learned Additional Chief Judicial Magistrate, Alipore. On 27.04.2015 Learned Sessions Judge called for medical report about the opposite party from the superintendent of IPGMER, SSKM Hospital, Kolkata with specific direction to submit the report regarding ill health of the opposite party by 29.04.2015 behind the back of the petitioner and without service of copy of the application filed by the opposite party before Learned Session Judge on 27.04.2015.
16. It further appears from record that on 29.04.2015 Learned Sessions Judge passed the order for preponing the date of hearing of bail petition of the opposite party from 13.05.2015 to 11.05.2015 after receiving the report of superintendent of IPGMER, SSKM Hospital Kolkata without filing any application in this regard by the opposite party. Learned Sessions Judge did not notify the date of hearing fixed on 29.04.2015 to the petitioner, CBI in advance. Learned Special Public Prosecutor of the petitioner CBI came to the court of Learned Sessions Judge in connection with the hearing of another case and as such his presence in the court was taken into consideration by Learned Sessions Judge for preponing the date of hearing of the bail petition of the opposite party from 13.05.2015 to 11.05.2015.
17. It also appears from record that on 29.04.2015 learned Sessions Judge passed the order for relaxation of condition of bail of another co-accused person in Criminal Misc. Case No.1736 of 2015, in spite of pendency of the application for cancellation of bail of the said co-accused person before the High Court at Calcutta, and in spite of drawing the attention of Learned Sessions Judge that judicial discipline demands that the hearing of relaxation of condition of bail may not be taken up till the disposal of the application for cancellation of bail of the said co-accused person by the High Court. Mr. Raghavacharyulu has clarified that the relaxation of the condition of bail of the said co-accused person was for moving out of Calcutta for collection of fund of the club to which he is attached and not for any medical emergency.
18. The proposition of law laid down by the Supreme Court in "Gurcharan Das Chadha" (Supra) is that a case is to be transferred from one court to another court if there is a reasonable apprehension on the part of a party to the case that fair justice will not be done. The apprehension of the party must be reasonable, not imaginary based upon conjectures and surmises. The law laid down by the majority of the three judge bench in "Kanaklata V. State (NCT) of Delhi" (Supra) is that justice must not only be done but must be seen to be done. The question is whether the apprehension of the petitioner is reasonable to direct the transfer of the case. The act of calling for medical report of the opposite party from the superintendent of IPGMER, SSKM Hospital on 27.04.2015 at the instance of the opposite party behind the back of the petitioner CBI, in spite of having the updated medical reports of the opposite party in the lower court records pending before Learned Additional Chief Judicial Magistrate is cited as an example of reasonable apprehension of the petitioner. The act of preponing the date of hearing of the bail petition of the opposite party from 13.05.2015 to 11.05.2015 after receiving the medical report of the opposite party from the superintendent of IPGMER, SSKM Hospital on 29.04.2015 without notifying the said date to the petitioner CBI in advance and taking advantage of presence of Learned Special Public Prosecutor of CBI in the court in connection with the hearing of another case is another example of reasonable apprehension of the petitioner. The act of granting relaxation of condition of bail of the co-accused person on 29.04.2015 in Criminal Misc. Case No.1736 of 2015, in spite of pendency of the application for cancellation of bail of the said co-accused person before the High Court and in spite of drawing the attention of Learned Sessions Judge that the judicial discipline demands not to take up for hearing the said application for relaxation of condition of bail of the co-accused during pendency of application for cancellation of his bail of the said co-accused before the High Court, is another example of reasonable apprehension of the petitioner.
19. The above instances, in my opinion, may give rise to reasonable apprehension of the petitioner, CBI that the petitioner, CBI may not get fair justice from Learned Sessions Judge, Alipore at the time of hearing of Criminal Misc. Case No.3258 of 2015. The instances cited above whether construed as procedural lapse or irregularity on the part of Learned Sessions Judge, may give rise to reasonable apprehension of the petitioner, CBI that the petitioner will not get fair justice from Learned Sessions Judge, Alipore. I would like to make it very clear with unambiguous term that the transfer of the said Criminal Misc. Case from the court of Learned Sessions Judge must not be construed as aspersions on the impartiality of Learned Sessions Judge, Alipore. Since the principles of administration of justice demands that justice is not only to be done, but also seen to be done, and since there is reasonable apprehension of the petitioner, CBI about fair justice from Learned Sessions Judge, Alipore, I am inclined to exercise my power under Section 407 read with Section 482 of the Code of Criminal Procedure for transfer of criminal Misc. Case No.3258 of 2015 from the court of Learned Sessions Judge, Alipore to the court of Learned Chief Judge, City Sessions Court, Calcutta for ends of justice.
20. As a result, this Criminal Revision is allowed. The Criminal Misc. Case No.3258 of 2015 pending before the court of Learned Sessions Judge, Alipore is transferred from his court to the court of Learned Chief Judge, City Sessions Court, Calcutta. Learned Sessions Judge, Alipore is directed to transfer the case record to the court of Learned Chief Judge, City Sessions Court, Calcutta within three days from the date of communication of the order. I record my deep appreciation of the assistance rendered to the court by Learned Counsel of both parties.
21. The department is directed to forward a plain copy of the order countersigned by the Assistant Registrar (Court) to Learned Sessions Judge, Alipore, South 24-Parganas and to Learned Chief Judge, City Sessions Court, Calcutta for favour of information and necessary action.
Urgent certified Photostat copy of the judgment and order, if applied for, be supplied to the parties as expeditiously as possible after compliance with necessary formalities.
(R. K. Bag, J.)