Charanjit Talwar, J.
(1) The applicant, A. K. Ghatterjee, Sanitary Inspector, employed by the Ministry of Health) Govt. of India seeks quashing of the proceedings against him pending in the court of Shri D.C. Aggarwal, Special Judge, under Section 5(2) of the Prevention of Corruption Act read with Section 161 and 384 of the Indian Penal Code. He is also seeking transfer of the case from that Court. For that purpose, he has filed a separate application bearing Cri. Misc. No. 1475/81.
(2) To appreciate the contention of the petitioner, it is necessary to note certain facts.
(3) The petitioner was posted on the night of 17/18th August, 1981 at Palam Airport, New Delhi. His duty -was to check health certificate of passengers arriving at the Palam Airport from abroad. The allegations against the petitioner are that at 1.30 p.m. on 18th August, 1981 he took a bribe of 200 Dollars from one of the passengers on the pretext that he did not possess a proper vaccination certificate and was thus not entitled to disembark in India. On the basis of that report, the Central Bureau of Investigation registered a case under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and Sections 161 and 384 of the Indian Penal Code. The petitioner was arrested on 24th August, 1981 at about 12.30 p.m. On the next day, on 2 5th August, 1981 he was produced before a Metropolitan Magistrate who remanded him to Police custody till 29th August, 1981. While in Police custody the petitioner was produced before the Special Judge, Shri D.C. Aggarwal on 27th August, 1981. It is admitted that on that day the report under section 17301 the Code of Criminal Procedure was filed in that Court. The statements recorded under section 161 of the Code and copies of some of the documents were handed over to the accused petitioner herein on that very day. The learned judge directed the case to be listed for the next date i.e. 28th August, 1981 for scrutiny of the documents. The petitioner was, however, remanded to judicial custody.
(4) In the mean while the application seeking grant of bail which had been moved on behalf of the petitioner on 26th August, 1981 was transferred by Mrs. S. Duggal, Addl. Sessions Judge, New Delhi to the Court of the Special Judge, Delhi for disposal. This application also came up for hearing on 28th August, 1981 for hearing but the petitioner was not admitted to bail. Thereafter, the learned Judge proceeded to frame the charges against the petitioner. It is averred by the petitioner that he had submitted to the Court that he be given time to engage a counsel : that the counsel Shri U.K. Sood who had appeared that day had been engaged only to argue the bail application : that the counsel had not even studied the copy of the report and the statements and as such was not prepared to argue at that time regarding discharge. inspire of this, it is submitted that the learned Judge not only framed the charge but proceeded to record evidence. The evidence of one witness was recorded on that day. The case was adjourned to 29th August, 1981 when the evidence of remaining two witnesses was recorded.
(5) The proceedings according to the petitioner conducted on 28th and 29th August, 1981 were in violation of the mandatory provisions of the Code of Criminal Procedure and, thereforee, liable to be quashed.
(6) Mr. Z.A. Khalidi, the learned counsel for the respondent in reply to the arguments of Bawa Gurcharan Singh has conceded that at least the provisions of Section 242 of the Code have not been strictly complied with. From the reading of Section 239 of the Code it is apparent that that a reasonable opportunity of being heard has to be provided to the accused after he has been able to scrutinise the copies of documents provided to him with the report under section 173 of the Code of Criminal Procedure. Further after flaming of the charge, another date has to be fixed for recording of evidence under Section 242 of the Code. The mandate seems to be that at both the stages namely before framing of the charge and before recording of the evidence, the accused should have reasonable opportunity to argue the matter and thereforee to cross examine the witnesses produced by the prosecution.
(7) It is unnecessary to analyze at this stage the prosecution allegations on merit. Suffice it to say that from bare reading of the facts as disclosed in this petition the petitioner herein did not have reasonable opportunity to defend himself on 28th August, 1981, firstly at the stage of arguments before charge and secondly when the witnesses was examined. The facts noticed above show that the copy of the report under Section 173 Code of Criminal Procedure and the copies of documents were handed over to the petitioner on 27th August, 1981. The next date fixed namely 28th August, 1981 was for scrutiny of the documents only. On that day the arguments on framing of the charge ought not to have been heard as the accused had sought time to engage counsel. In all fairness one opportunity must be given to the accused for that purpose- In any case, having framed the charge on 28th August, 1981, it was incumbent upon the Court to have fixed a date for recording of evidence. Instead, the learned Judge proceeded to record the evidence on that very day.
(8) In my view the proceedings conducted in this case by the learned Special Judge on 28th August, 1981 and on 29th August, 1981 were illegal. The accused-petitioner herein did not get a fair trial as envisaged under the law. I hereby quash these proceedings.
(9) Keeping in view the above discussion, in my view the case ought to be transferred from the Court of Shri D.G. Aggarwal Special Judge, to the other Special Judge, Shri P.K. Bahri. In this case the well accepted principle that justice must not only be done but should appear to have been done has not been kept in view by the learned Judge. I he apprehension in the mind of the petitioner that he is not going to get a fair trial seems to be well founded. The allegation that the learned Judge was undue hasty or that he had accommodated the prosecution agency having been withdrawn by the counsel for the petitioner has been completely ignored by me while arriving at this decision.
(10) The parties should appear before Shri P.K. Bahri, Special Judge, Delhi on 2nd November, 1981 who will proceed in the case afresh in accordance with law.