Mhmd. Shakeel v. The High Court of Delhi

Order No. 3999-4009/DHC/Gaz./G-1/2013 is clearly permissible.

¶9This brings the Court to the question of any prejudice caused to Shakeel's case specifically from such transfer order. Undoubtedly, the judge presently presiding over the trial possesses greater familiarity with the matter, and a transfer may create some delays in the new judge taking over the matter, these issues cannot, by themselves, vitiate the transfer. Indeed, if a contrary view were to be taken, most– if not all – transfer orders would be considered impermissible. In fact, Section 326 of the Cr.P.C. specifically contemplates the appreciation of evidence by a successor judge, and if required, a re-summoning of certain witnesses to allow for the new judge to be able to effectively decide the trial. If in fact there were any mala fides by the prosecution in this case, there is no reason to believe that the new judge who would preside over the case will not take due account of them. Indeed, to interdict the administrative power of the High Court to transfer a Page 7 class of cases between courts under its supervisory jurisdiction with general concerns of individual cases (for example, delays, or a concern that the current judge is familiar with the matter) would unduly, and indeed, incorrectly, restrain the power of the High Court, and cannot be accepted.

¶10The reliance placed on the decisions of the Supreme Court in Pal Singh and Nirmal Singh here are unhelpful, as in Pal Singh, the Supreme Court set aside the order of transfer by the High Court for lack of jurisdiction to make an inter-state transfer (with the observations that the trial had proceeded to the final stages being remarks made as obiter); and in Nirmal Singh, the case concerned a transfer order under Section 407, Cr.PC without notice to parties, which, as noted before, is not a requirement for orders made on the administrative side for the transfer of classes of cases between lower courts.

¶11Under the scheme of the Constitution, it is the High Court alone which is entrusted with exclusive responsibility of overseeing administrative and judicial work of the Courts subordinate to it. This task includes the duty to ensure that work distribution amongst judges of various levels is optimized to ensure speedy resolution of trials, causes and appeals. As part of this power, it can re-organize and rationalize work in such subordinate courts. Various considerations are kept in mind; all geared to ensure speedy trial and dispute resolution. There is no dispute that the notification in question and the District Judge's consequential order was in bona fide exercise of that power. Given these circumstances, sans any overriding consideration, Page 8 this Court is unable to locate any principled justification to say that a particular case or trial should continue on the file of a particular judge, because a large number of witnesses' depositions were recorded by him. Doing so would, to this Court's mind, be setting a dangerous precedent, fuelling similar demands for diverse considerations, adding to the Court's already strained docket, a new class of litigation unnecessarily.

¶12In the light of the above discussion, this Court finds no reason to grant any relief. The writ petition is, therefore, dismissed along with pending application. S. RAVINDRA BHAT (JUDGE) NAJMI WAZIRI (JUDGE) OCTOBER 07, 2013

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 18.09.2013 Pronounced on: 07.10.2013 + W.P.(C) 5598/2013, C.M. NO. 12403/2013 Mhmd. SHAKEEL ..... Petitioner Through : Sh. Jawahar Raja and Sh. Rajat Kumar, Advocates. versus THE HIGH COURT OF DELHI ..... Respondent Through : Sh. Gautam Khazanchi, for Sh. Siddharth Aggarwal, Advocate, for Resp. No.1. Sh. Khyati Sharma, for Ms. Sonia Sharma, for GNCTD. Ms. Avnish Ahlawat, Sh. Nitesh Singh and Sh. Vaibhav Misra, Advocates. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S. RAVINDRA BHAT % 1. The present writ petition seeks the issuance of a writ of certiorari quashing the decision of the High Court of Delhi in its administrative jurisdiction, as conveyed by the Registrar (Vigilance) of the Court to all District and Sessions Judges, by Order No. 3999- 4009/DHC/Gaz./G-1/2013, dated 3rd August, 2013 ("the impugned decision"). This decision mandates that all cases investigated by the Special Cell of the Delhi Police and being prosecuted anywhere in Delhi would stand transferred to the Court of the Additional Sessions Page 2 Judge-02, Patiala House Courts, Delhi. Consequent to this, by the order of the District and Sessions Judge (HQs), Delhi, dated 6th August 2013 (No. 1586/28251-281/F.3(4)/ASJ/Gaz/13) transferred all such cases to the said court. 2. The present writ petitioner's (hereinafter "Shakeel") challenge to these decisions stems from his trial (in S.C.74-78/2009 before the Additional Sessions Judge, Central, Tis Hazari Court, Delhi) which has also been transferred. Briefly, the ASJ, Tis Hazari Courts framed charges against Shakeel on 5th February, 2011, under Sections 121/121-A/122/123/302/307/323/427 read with 120B of the Indian Penal Code, Sections 3/4/5 of the Explosive Substances Act, 1908; Sections 16/18/20/23 of the Unlawful Activities (Prevention) Act, and Section 66 of the Information Technology Act,2000. The trial commenced on 31st May, 2011, and from October, 2012 onwards the trial judge ordered that the case be listed every Wednesday, and December, 2012 onwards, that it be listed every Wednesday and Thursday of the month. 3. Shakeel seeks quashing of the impugned orders as regards his cases, on several counts. Learned counsel appearing for Shakeel, Mr. Raja, contended that more than 198 prosecution witnesses had already been examined and only 30-40 more witnesses remain to be examined. Such being the situation, argues counsel, the case ought to be allowed to proceed before the trial judge in the Tis Hazari Court itself. Moreover, learned counsel argues that throughout the course of the prosecution, several mala fide attempts had been made to subvert Page 3 the process of law by attempting to influence witnesses in the case, and given that the trial judge who has presided over the case had been privy to, and been able to personally observe these attempts by the prosecution, the interests of justice demand that the case be allowed to proceed before the same trial judge, rather than transferring the matter under the impugned order. Accordingly, it is argued that the judge presently presiding over the trial is best equipped to conclude recording evidence in those proceedings and to adjudicate the innocence or guilt of the petitioner. To this end, the writ petition also points out, at paragraphs 8-9, several instances of alleged mala fides in the manner the prosecution has conducted itself, especially attempts to manipule or influence public witnesses to depose against Shakeel. Moreover, it is contended that: "16……………………Transferring all these cases to a single court, that will then have to deal with cases that are part of its regular board of cases, apart from cases that have been assigned as a result of the order of this Hon'ble court, is likely to result in very significant delays in the trial and adjudication of cases against the petitioner.". 4. Further, learned counsel admits that although Section 326 of the Cod