Delhi High Court Reserves Judgment In ED's Plea Against Transfer Of Case After Judge Said 'ED Matters Me Kaunsi Bail Hoti Hain'

The Delhi High Court on Wednesday reserved judgment on a plea moved by the Enforcement Directorate (ED) challenging a trial court order transferring proceedings in the Bhushan Steel money laundering case from one judge to another, after one of the accused alleged that the judge passed a comment expressing "ED matters me kaun si bail hoti hai?”

Justice Swarana Kanta Sharma reserved the order and orally remarked that it will be a difficult order for her to pass and that things are said against her also on social media, while emphasising as to what will be the effect of such transfer orders on judges.

The application seeking transfer of proceedings was moved by accused Ajay S. Mittal. He alleged that while his bail plea was pending before the judge, his wife, once the counsels left the court room, heard the judge saying “lene do datein, ED matters me kaun si bail hoti hai.” This was after the court staff enquired something.

Special counsel Zoheb Hossain appearing for ED submitted that the only averment resulting in transfer of the case was that the accused's wife heard the judge say that “ED cases me bail nahi milte.”

He said that neither the counsel heard the judge's comment nor was any affidavit filed to support the same. He said that the averment of the wife was accepted by the trial court as a gospel truth and that neither any report was called from the judge in question nor any verification was done.

Hossain also said that it was a classic case of forum shopping and that if a party who chooses to caste aspersion on a judge only to ensure that he does not hear the case causes problem in the entire criminal justice system.

He said that lady in question was granted bail in the same case by the same rouse avenue court which is especially meant for dealing with ED cases and those involving MPs and MLAs.

“If on the say of the accused, matters are transferred like this, then this will be great travesty of justice and blot on the system that people can get matters transferred only on bald allegations,” he submitted.

To this, Justice Sharma remarked: “Fir toh mere bare me bhi bolenge. Mere baare me toh bolte hi hain… (Then they will say about me also. They anyway say things about me…)”

She added: “What will be the effect on the judge if a matter is transferred like this. I'll try to balance the order. I am just thinking, being a judge from last 32 years, because of social media so many things are said for me also for so many months… iska affect kya hota hain naa… batane wali bhi nahi hain.”

The court further said that judges do not have PR people to counter what is being said against them.

“I am also thinking if anyone says against me ki maine courtnaster se kahan lekin iska asar judge ke upar hota hain because ye saare orders kahin na kahin chapte rehte hain naa…. For me it will be a difficult order to pass. I don't know what order I'll pass,” the judge remarked further.

Senior Advocate Sandeep Sethi appeared for the accused and said that the impugned order is an administrative order merely transferring a case from one judge to another.

However, Hossain objected to the submission and said that the impugned order is not an administrative order.

Before the trial court, the accused had alleged that the comments of the judge came as a shock to him and there was a reasonable apprehension that the presiding officer was sitting with "pre-determined and pre-judicial mind” to dismiss his bail application.

While transferring the case, the trial court had observed that the perception and view point of the accused stating that he did not expect impartial hearing from the court, has to be given due regard.

Title: ED v. Ajay S Mittal