Madhya Pradesh High Court
Balram vs The State Of Madhya Pradesh on 6 December, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
CRA No.5491/2021
(BALRAM VS. STATE OF M.P. & ANR.)
Gwalior, Dated : 06/12/2021
Shri Govind Puri, learned counsel for the appellant.
Shri C.P.Singh, learned counsel for the State.
None for the respondent No. 2/complainant.
1. It is submitted by the counsel for the State that the complainant
has been informed about the pendency of this appeal as required
under Section 15-A of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act (in short "Act").
2. Case diary is available.
3. This is second repeat appeal has been filed under Section 14-A
(2) of the Act against the order dated 10/06/2020 passed by Special
Judge (Atrocities Act) Ashoknagar, rejecting the bail application.
First appeal of the appellant was dismissed as withdrawn by order
dated 05/08/2020 passed in CRA No.3872/2020.
4. The appellant has been arrested on 07/06/2020 in connection
with Crime No.108/2020 registered by Police Station Bahadurpur,
District Ashoknagar for offence punishable under Sections 307, 294,
147, 148, 149, 436 and 302 of IPC and Sections 3(2)(v), 3(2)(iv),
3(1)(r) and 3(1)(s) of the Act.
5. Heard on I.A.No.32935/2021, an application requesting the
Court to the recuse itself from hearing of the case.
6. Earlier, the wife of the appellant had filed an application on
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THE HIGH COURT OF MADHYA PRADESH
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(BALRAM VS. STATE OF M.P. & ANR.)
administrative ground, requesting the Hon'ble Chief Justice to
transfer the case from this Court on the ground that this Court has
made certain observations against the main accused, which shows
that this Court is biased against the main accused. When the case was
taken up on 23/10/2021, this Court found that the application filed
before the Hon'ble Chief Justice on administrative ground was
pending, therefore, the case was adjourned awaiting the outcome of
the application. Thereafter, on 09/11/2021 also the case was
adjourned awaiting the outcome of the application. On 16/11/2021
also the case was adjourned.
7. The Principal Registrar (Judicial), Principal Seat Jabalpur by
its note-sheet dated 25/11/2021 informed the Principal Registrar of
this bench that by order dated 24/11/2021, Hon'ble Chief Justice was
pleased to "file application" and accordingly, the case was once
against listed before this Court on 03/12/2021. Since, none had
appeared for the appellant on the said date, therefore, the case was
adjourned and was directed to be listed on 06/12/2021 and that is
why, it has come today before this Court.
8. Shri Govind Puri, Counsel for the appellant, at the outset
submitted that I.A.No.32935/ 2021 has been filed making a request to
this Court to recuse itself from deciding the matter. This application
has been moved by the wife of the appellant. Even the wife of the
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THE HIGH COURT OF MADHYA PRADESH
CRA No.5491/2021
(BALRAM VS. STATE OF M.P. & ANR.)
appellant knows that certain allegations, which have been made in
the application are false. However, this Court does not want to
involve itself in this controversy any more except by mentioning that
there is no allegation off bias against the appellant.
9. So far as the allegations that this Court is biased against the
main accused is concerned, it is sufficient to mention that the present
application has not been moved by the main accused. This Court by
orders dated 20/09/2020, 07/05/2021 passed in CRA No.4875/2020
and 2605/2021 has already granted bail to the co-accused persons
namely Shyam Vivek Shama and Aman Singh Rajput against whom,
there was no admissible evidence. The bail application of each and
every accused is being decided on its own merits.
10. So far as the allegation of bias against co-accused Girraj Yadav
is concerned, even to the knowledge of the wife of the appellant, the
allegation of bias is false. However, in order to put the things in
correct prospective, this Court would like to mention the following
facts:
Co-accused Girraj Yadav moved an application under
Section 439 of Cr.P.C., which was registered as CRA No.5639/2020.
A specific ground was taken that Girraj Yadav is suffering from
physical ailment. After considering the material placed on record, this
Court rejected the appeal by order dated 09/11/2020. Against the
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THE HIGH COURT OF MADHYA PRADESH
CRA No.5491/2021
(BALRAM VS. STATE OF M.P. & ANR.)
order dated 09/11/2020 passed in CRA No.5639/2020 co-accused
Girraj Yadav preferred SLP before the Hon'ble Supreme Court, which
was dismissed by order dated 14/12/2020 passed in SLP (Cri)
No.6025/2020. Thereafter, co-accused Girraj Yadav again moved an
application under Section 439 of Cr.P.C. taking the same defence of
medical ailment, which was dismissed by order dated 25/01/2021
passed in CRA No.287/2021. Against the said order, co-accused
Girraj Yadav again preferred SLP before the Hon'ble Supreme Court,
which was dismissed by order dated 19/03/2021 passed in SLP (Cri)
No.1406/2021 with following observations:-
"Accordingly, we direct the respondent-
State shall ensure that the appellant is taken to
AIIMS, New Delhi for further treatment while
keeping him in police custody and the entire cost
of medical treatment and security provided by the
State shall be borne by the appellant.
Needless to observe that further treatment
be continued depending upon the medical opinion
of the doctors of the AIIMS, New Delhi. As and
when it is certified that further treatment is not
necessary at AIIMS, New Delhi and it can be
continued at AIIMS, Bhopal, the appellant can be
then taken back to Bhopal for further treatment in
jail or Hospital, as may be required. Ordered
accordingly.
The appeal is disposed of in the above
terms.
Pending applications, if any, stand disposed
of."
In the meanwhile, the proceedings under Sections 82 and
83 of Cr.P.C. were initiated against co-accused Girraj Yadav and
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THE HIGH COURT OF MADHYA PRADESH
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subsequently, he surrendered. Thereafter, an application under
Section 84 of Cr.P.C. was moved by co-accused Girraj Yadav for
releasing the property from attachment and the said application was
dismissed by the Trial Court. Against the rejection of the said
application, co-accused Girraj Yadav preferred CRA No.2384/2021.
The said case was pressed by the counsel for the co-
accused only on the ground that since the Hon'ble Supreme Court has
granted liberty to co-accused Girraj Yadav to get himself treated from
AIIMS on his own expenses as well as co-accused Girraj Yadav was
also directed to bear the expenses of security, which shall be provided
by the State, therefore, the bank account may be released so that he
can get himself treated.
Considering the submissions made by the counsel for the
co-accused as well as the directions given by the Hon'ble Supreme
Court, this Court passed the following order:-
"It is the case of the appellant hat he is
medically sick and requires treatment in AIIMS,
New Delhi and accordingly, the Supreme Court
has directed the State Authorities to ensure that
the appellant is taken to AIIMS, New Delhi for
further treatment while keeping him in police
custody and it was also directed that the entire
cost of medical treatment and security provided
by the State shall be borne by the appellant.
Without money, the appellant cannot get
himself treated in AIIMS, New Delhi. Under
these circumstances, this Court is of the view
that the appellant is entitled for release of
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amount which is required for his treatment in
AIIMS, New Delhi as well as for bearing the
cost of police security. In view of the limited
prayer made by the Counsel for the appellant, it
is directed that in case if the appellant submits
advance bills to the concerning bank, from
AIIMS, New Delhi towards expenses of his
treatment as well as advance bills from PHQ /
competent authority, Bhopal for providing
police security, then the bank shall release the
amount so mentioned in the advance bills in
favour of AIIMS, New Delhi and the Police
Department, Bhopal (MP) directly. In case, for
any reason, if the said amount remains
unutilized either in whole or in part, then the
AIIMS, New Delhi and the Police Department,
Bhopal (MP) shall remit back the amount in the
account of the appellant.
It is made clear that the appellant shall
not be entitled to withdraw any amount for his
treatment but the amount shall be credited
directly in the account of AIIMS, New Delhi
and the Police Department, Bhopal (MP).
No further argument is advanced by the
Counsel for the appellant.
With aforesaid modifications, the order
dated 09/10/2020 passed by Special Judge
(Atrocities), Ashok Nagar, is hereby affirmed."
11. It is not known as to whether co-accused Girraj Yadav has ever
went to AIIMS for his treatment or not ? Further, the co-accused
Girraj Yadav has criminal history and as many as 33 cases have been
registered against him and this fact has also been taken note of by
this Court in its order dated 25/01/2021 passed in CRA No.287/2021,
which has also been upheld by the Supreme Court. However, at
present this Court is not concerned with the case of Girraj Yadav. The
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THE HIGH COURT OF MADHYA PRADESH
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above mentioned facts have been mentioned only to show that the
orders, which were passed by this Court were duly upheld by the
Supreme Court, but still the wife of the appellant is making
unnecessary and false allegations against the Court. No person can be
encouraged by recusing specifically when the application filed by the
wife of the appellant on administrative ground for transfer of the case
has already been rejected.
12. Be that whatever it may be.
13. The Supreme Court in the case of Indore Development
Authority Vs. Manoharlal and Others by order dated 23/10/2019
passed in SLP (Cri) Nos.9036-9038 of 2016 has held as under:-
"24. Shri Mohan Parasaran, learned Senior
Counsel has also relied upon the decision of the
Supreme Court of United States in John Patrick
LITEKY v. United States, 510 U.S. 540 (1994), where
the question of recusal based on "extrajudicial source"
doctrine came up for consideration. The Supreme
Court of United States held:
"[5] [6] [7] The judge who presides at a
trial may, upon completion of the
evidence, be exceedingly ill disposed
towards the defendant, who has been
shown to be a thoroughly reprehensible
person. But the judge is not thereby
recusable for bias or prejudice, since his
knowledge and the opinion it produced
were properly and necessarily acquired in
the course of the proceedings, and are
indeed sometimes (as in a bench trial)
necessary to completion of the judge's
task. As Judge Jerome Frank pithily put it:
"Impartiality is not gullibility.
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Disinterestedness does not mean child-like
innocence. If the Judge did not form
judgments of the actors in those
courthouse dramas called trials, he could
never render decisions." In re J.P.
Linahan, Inc., 138 F.2d 650, 654 (CA2
1943). Also not subject to deprecatory
characterization as "bias" or "prejudice"
are opinions held by judges as a result of
what they learned in earlier proceedings. It
has long been regarded as normal and
proper for a judge to sit in the same case
upon its remand, and to sit in successive
trials involving the same defendant.
[8] [9] It is wrong in theory, though it may
not be too far off the mark as a practical
matter, to suggest, as many opinions have,
that "extrajudicial source" is the only basis
for establishing disqualifying bias or
prejudice. It is the only common basis, but
not the exclusive one, since it is not the
exclusive reason a predisposition can be
wrongful or inappropriate. A favourable or
unfavourable predisposition can also
deserve to be characterized as "bias" or
"prejudice" because, even though it
springs from the facts adduced or the
events occurring at trial, it is so extreme as
to display clear inability to render fair
judgment. (That explains what some courts
have called the "pervasive bias" exception
to the "extrajudicial source" doctrine. See,
e.g., Davis v. Board of School Comm'rs
of Mobile County, 517 F.2d 1044, 1051
(CA5 1975), cert. Denied, 425 U.S. 944,
96 S.Ct. 1685, 48 L.Ed.2d 188 (1976).
[13] [14] For all these reasons, we think
that the "extrajudicial source" doctrine, as
we have described it, applies to § 455(a). As
we have described it, however, there is not
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THE HIGH COURT OF MADHYA PRADESH
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(BALRAM VS. STATE OF M.P. & ANR.)
much doctrine to the doctrine. The fact
that an opinion held by a judge derives from
a source outside judicial proceedings is not a
necessary condition for "bias or prejudice"
recusal, since predisposition developed
during the course of a trial will sometimes
(albeit rarely) suffice. Nor is it a sufficient
condition for "bias or prejudice" recusal,
since some opinions acquired outside the
context of judicial proceedings (for
example, the judge's view of the law
acquired in scholarly reading) will not
suffice. Since neither the presence of an
extrajudicial source necessarily establishes
bias, nor the absence of an extrajudicial
source necessarily precludes bias, it would
be better to speak of the existence of a
significant (and often determinative)
"extrajudicial source" factor, than of an
"extrajudicial source" doctrine, in recusal
jurisprudence.
[15] [16] [17] [18] The facts of the present
case do not require us to describe the
consequences of that factor in complete
detail. It is enough for present purposes
to say the following: First, judicial
rulings along almost never constitute a
valid basis for a bias or partiality motion.
See United States v. Grinnell Corp., 384
U.S., at 583, 86 S.Ct., at 1710. In and of
themselves (i.e., apart from surrounding
comments or accompanying opinion), they
cannot possibly show reliance upon an
extrajudicial source; and can only in the
rarest circumstances evidence the degree
of favouritism or antagonism required (as
discussed below) when no extrajudicial
source is involved. Almost invariably, they
are proper grounds for appeal, not for
recusal. Second, opinions formed by the
judge on the basis of facts introduced or
events occurring in the course of the
current proceedings or of prior
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proceedings, do not constitute a basis for a
bias or partiality motion unless the display
a deepseated favouritism or antagonism
that would make fair judgment
impossible. Thus, judicial remarks during
the course of a trial that are critical or
disapproving of, or even hostile to,
counsel the parties, or their cases,
ordinarily do not support a bias or
partiality challenge. They may do so if
they reveal an opinion that derives from
an extrajudicial source; and they will do
so if they reveal such a high degree of
favouritism or antagonism as to make
fair judgment impossible. An example of
the latter (and perhaps of the former as
well) is the statement that was alleged to
have been made by the District Judge in
Berger v. United States, 255 U.S. 22, 41
S.Ct.230, 65 L.Ed.481 (1921), a World
War I espionage case against German-
American defendants; "One must have a
very judicial mind, indeed, not [to be]
prejudiced against the German Americans"
because their "hearts are reeking with
disloyality." Id., at 28 (internal quotation
marks omitted). Not establishing bias or
partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and
even anger, that are within the bounds of
what imperfect men and women, even
after having been confirmed as federal
judges, sometimes display. A judge's
ordinary efforts at courtroom
administration - even a stern and short-
tempered judge's ordinary efforts at
courtroom administration - remain
immune.
The term "extrajudicial source," though
not the interpretive doctrine bearing its
name, has appeared in only one of our
previous cases. United States v. Grinnell
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(BALRAM VS. STATE OF M.P. & ANR.)
Corp., 384 U.S. 563, 86 S.Ct.1698, 16
L.Ed.2d 778 (1966). Respondents in
Grinnell alleged that the trial judge had a
personal bias against them, and sought
his disqualification and a new trial under
28 U.S.C. § 144. That statute, like §
455(b)(1), requires disqualification for
"bias or prejudice". In denying
respondents' claim, the Court stated that
"[t]he alleged bias and prejudice to be
disqualifying must stem from an
extrajudicial source and result in an
opinion on the merits on some basis other
than what the judge learned from his
participation in the case." 384 U.S., at
583, 86 S.Ct., at 1710."
In LITEKY (supra), it has been held that it is desirable
to have the same Judge in the successive causes. They
have to be faithful to oath. Following observation has
been made:
"To take a common example, litigants (like
petitioners here) often seek disqualification
based upon a judge's prior participation, in
a judicial capacity, in some related
litigation. Those allegations are meritless
in most instances, and their prompt
rejection is important so the case can
proceed. Judges, if faithful to their oath,
approach every aspect of each case with a
neutral and objective disposition. They
understand their duty to render decisions
upon a proper record and to disregard
earlier judicial contacts with a case or
party.
Some may argue that a judge will feel the
"motivation to vindicate a prior
conclusion" when confronted with a
question for the second or third time, for
instance, upon trial after a remand. Ratner,
Disqualification of Judges for Prior
Judicial Actions, 3 How.L.J. 228, 229230
(1957). Still, we accept the notion that the
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THE HIGH COURT OF MADHYA PRADESH
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"conscientious judge will, as far as
possible, make himself aware of his biases
of this character, and, by that very self-
knowledge, nullify their effect." In re J.P.
Linahan, Inc., 138 F.2d 650, 652 (CA2
1943). The acquired skill and capacity to
disregard extraneous matters is one of the
requisites of judicial office. As a matter of
sound administration, moreover, it may be
necessary and prudent to permit judges to
preside over successive causes involving
the same parties or issues. See Rules
Governing Section 2255 Proceedings for
the United States District Courts, Rule 4(a)
("The original motion shall be presented
promptly to the judge of the district court
who presided at the movant's trial and
sentenced him, or, if the judge who
imposed sentence was not the trial judge,
then it shall go to the judge who was in
charge of that part of the proceedings
being attacked by the movant"). The public
character of the prior and present
proceedings tends to reinforce the resolve
of the judge to weigh with care the
propriety of his or her decision to hear the
case.
Out of this reconciliation of principle and
practice comes the recognition that a
judge's prior judicial experience and
contacts need not, and often do not, give rise
to reasonable questions concerning
impartiality."
(emphasis supplied)
25. In State of W.B. v. Shivananda Pathak, (1998)
5 SCC 513, this Court has laid down that prejudging
question of law, policy or discretion, Judge is not
disqualified to hear a case. It was held as under:
"25. Bias may be defined as a preconceived
opinion or a predisposition or
predetermination to decide a case or an issue
in a particular manner, so much so that such
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predisposition does not leave the mind
open to conviction. It is, in fact, a condition
of mind, which sways judgments and
renders the judge unable to exercise
impartiality in a particular case.
26. Bias has many forms. It may be
pecuniary bias, personal bias, bias as to
subject matter in dispute, or policy bias
etc. In the instant case, we are not
concerned with any of these forms of bias.
We have to deal, as we shall presently see,
a new form of bias, namely, bias on
account of judicial obstinacy.
27. Judges, unfortunately, are not
infallible. As human beings, they can
commit mistakes even in the best of their
judgments reflective of their hard labour,
impartial things and objective assessment
of the problem put before them. In the
matter of interpretation of statutory
provisions or while assessing the evidence
in a particular case or deciding questions
of law or facts, mistakes may be
committed bona fide which are corrected
at the appellate stage. This explains the
philosophy behind the hierarchy of courts.
Such a mistake can be committed even by
a judge of the High Court which are
corrected in the letters patent appeal, if
available.
28. If a judgment is overruled by the
higher court, the judicial discipline
requires that the judge whose judgment is
overruled must submit to that judgment.
He cannot, in the same proceedings or in
collateral proceedings between the same
parties, rewrite the overruled judgment.
Even if it was a decision on a pure
question of law which came to be
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overruled, it cannot be reiterated in the
same proceedings at the subsequent stage
by reason of the fact that the judgment of
the higher court which has overruled that
judgment, not only binds the parties to the
proceedings but also the judge who had
earlier rendered that decision. That judge
may have his occasion to reiterate his
dogmatic views on a particular question of
common law or constitutional law in some
other case but not in the same case. If it is
done, it would be exhibitive of his bias in
his own favour to satisfy his egoistic
judicial obstinacy.
29. As pointed out earlier, an essential
requirement of judicial adjudication is that
the judge is impartial and neutral and is in
a position to apply his mind objectively to
the facts of the case put up before him. If
he is predisposed or suffers from
prejudices or has a biased mind, he
disqualifies himself from acting as a judge.
But Frank, J. of the United States in
Linahan, In re, 138 F 2d 650 says:
"If, however, 'bias' and 'partiality' be
defined to mean the total absence of
preconceptions in the mind of the judge,
then no one has ever had a fair trial and
no one will. The human mind, even at
infancy, is no blank piece of paper. We
are born with predispositions.... Much
harm is done by the myth that, merely
by ... taking the oath of office as a
judge, a man ceases to be human and
strips himself of all predilections,
becomes a passionless thinking
machine."
[See also Griffith and Street, Principles
of Administrative Law (1973 Edn.), p. 155;
Judicial Review of Administrative Action
by de Smith (1980 Edn.), p. 272; II
Administrative Law Treatise by Davis
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THE HIGH COURT OF MADHYA PRADESH
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(1958 Edn.), p. 130.]
30. These remarks imply a distinction
between prejudging of facts specifically
relating to a party, as against
preconceptions or predispositions about
general questions of law, policy or
discretion. The implication is that though
in the former case, a judge would
disqualify himself, in the latter case, he
may not. But this question does not arise
here and is left as it is."
(emphasis supplied)
26. In Asok Pande v. Supreme Court of India
(2018) 5 SCC 341, question of allocation of work and
roster of Benches came up for consideration. The Court
has laid down that Chief Justice has to consider
specialization of each Judge and other factors. The
Court observed:
"10. Recently, a Constitution Bench of this
Court in Campaign for Judicial
Accountability and Reforms v. Union of
India, (2018) 1 SCC 196, held that the
principle which was noticed and
recognised in the decision of this Court in
State of Rajasthan v. Prakash Chand,
(1998) 1 SCC 1, in relation to the
jurisdiction and authority of the Chief
Justice of the High Court "must apply
proprio vigore as regards the power of the
Chief Justice of India". The position of the
Chief Justice was reiterated with the
following observations: (SCC pp. 199200,
paras 7 & 8)
"7. The aforesaid position though
stated as regards the High Court, we are
absolutely certain that the said principle
is applicable to the Supreme Court. We
are disposed to think so. Unless such a
position is clearly stated, there will be
utter confusion. Be it noted, this has
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been also the convention of this Court,
and the convention has been so because
of the law. We have to make it clear
without any kind of hesitation that the
convention is followed because of the
principles of law and because of judicial
discipline and decorum. Once the
Chief Justice is stated to be the Master
of the Roster, he alone has the
prerogative to constitute Benches.
Needless to say, neither a twoJudge
Bench nor a threeJudge Bench can
allocate the matter to themselves or
direct the composition for constitution
of a Bench. To elaborate, there cannot
be any direction to the Chief Justice of
India as to who shall be sitting on the
Bench or who shall take up the matter
as that touches the composition of the
Bench. We reiterate such an order
cannot be passed. It is not countenanced
in law and is not permissible.
8. An institution has to function
within certain parameters and that is
why there are precedents, rules and
conventions. As far as the composition
of Benches is concerned, we accept the
principles stated in Prakash Chand,
which were stated in the context of the
High Court, and clearly state that the
same shall squarely apply to the
Supreme Court and there cannot be any
kind of command or order directing the
Chief Justice of India to constitute a
particular Bench."
12. Quite apart from the fact that the
relief sought is contrary to legal and
constitutional principle, there is a
fundamental fallacy in the approach of the
petitioner, which must be set at rest. The
petitioner seeks the establishment of a
binding precept under which a threeJudge
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Bench in the Court of the Chief Justice
must consist of the Chief Justice and his
two seniormost colleagues alone while the
Constitution Bench should consist of five
seniormost Judges (or, as he suggests,
three "seniormost" and two "juniormost"
Judges). There is no constitutional
foundation on the basis of which such a
suggestion can be accepted. For one thing,
as we have noticed earlier, this would
intrude into the exclusive duty and
authority of the Chief Justice to constitute
Benches and to allocate cases to them.
Moreover, the petitioner seems to harbour
a misconception that certain categories of
cases or certain courts must consist only of
the seniormost Judges in terms of
appointment. Every Judge appointed to
this Court under Article 124 of the
Constitution is invested with the equal
duty of adjudicating cases which come to
the Court and are assigned by the Chief
Justice. Seniority in terms of appointment
has no bearing on which cases a Judge
should hear. It is a settled position that a
judgment delivered by a Judge speaks for
the Court (except in the case of a
concurring or dissenting opinion). The
Constitution makes a stipulation in Article
124(3) for the appointment of Judges of
the Supreme Court from the High Courts,
from the Bar and from amongst
distinguished jurists. Appointment to the
Supreme Court is conditioned upon the
fulfilment of the qualifications prescribed
for the holding of that office under Article
124(3). Once appointed, every Judge of
the Court is entitled to and in fact, duty-
bound, to hear such cases as are assigned
by the Chief Justice. Judges drawn from
the High Courts are appointed to this
Court after long years of service. Members
of the Bar who are elevated to this Court
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similarly are possessed of wide and diverse
experience gathered during the course of
the years of practice at the Bar. To suggest
that any Judge would be more capable of
deciding particular cases or that certain
categories of cases should be assigned only
to the seniormost among the Judges of the
Supreme Court has no foundation in
principle or precedent. To hold otherwise
would be to cast a reflection on the
competence and ability of other Judges to
deal with all cases assigned by the Chief
Justice notwithstanding the fact that they
have fulfilled the qualifications mandated
by the Constitution for appointment to the
office.
14. The Chartered High Courts of
Allahabad, Bombay, Calcutta and Madras
have a long history of over a hundred and
fifty years. Each of them has marked its
sesquicentennial. Many High Courts are
not far behind in vintage. Some are of a
recent origin. Over the course of their
judicial history, High Courts have evolved
conventions in matters governing practice
and procedure. These conventions provide
guidance to the Chief Justice in the
allocation of work, including in the
constitution of Benches. The High Courts
periodically publish a roster of work under
the authority of the Chief Justice. The
roster indicates the constitution of
Benches, Division and Single. The roster
will indicate the subjectmatter of the cases
assigned to each Bench. Different High
Courts have their own traditions in regard
to the period for which the published roster
will continue, until a fresh roster is
notified. Individual Judges have their own
strengths in terms of specialisation. The
Chief Justice of the High Court has to bear
in mind the area of specialisation of each
Judge, while deciding upon the allocation
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of work. However, specialisation is one of
several aspects which weigh with the Chief
Justice. A newly appointed Judge may be
rotated in a variety of assignments to
enable the Judge to acquire expertise in
diverse branches of law. Together with the
need for specialisation, there is a need for
Judges to have a broadbased understanding
of diverse areas of law. In deciding upon
the allocation of work and the constitution
of Benches, Chief Justices have to
determine the number of Benches which
need to be assigned to a particular subject-
matter keeping in view the inflow of work
and arrears. The Chief Justice of the High
Court will have regard to factors such as
the pendency of cases in a given area, the
need to dispose of the oldest cases,
prioritising criminal cases where the
liberty of the subject is involved and the
overall strength, in terms of numbers, of
the Court. Different High Courts have
assigned priorities to certain categories of
cases such as those involving senior
citizens, convicts who are in jail and
women litigants. These priorities are
considered while preparing the roster.
Impending retirements have to be borne in
mind since the assignment given to a Judge
who is due to demit office would have to
be entrusted to another Bench when the
vacancy arises. These are some of the
considerations which are borne in mind.
The Chief Justice is guided by the need
to ensure the orderly functioning of the
Court and the expeditious disposal of
cases. The publication of the roster on the
websites of the High Courts provides
notice to litigants and lawyers about the
distribution of judicial work under the
authority of the Chief Justice. This
Court was constituted in 1950. In the
preparation of the roster and in the
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distribution of judicial work, some of the
conventions which are adopted in the High
Courts are also relevant, subject to
modifications having regard to institutional
requirements.
15. Underlying the submission that the
constitution of Benches and the allocation
of cases by the Chief Justice must be
regulated by a procedure cast in iron is the
apprehension that absent such a procedure
the power will be exercised arbitrarily. In
his capacity as a Judge, the Chief Justice is
primus inter pares: the first among equals.
In the discharge of his other functions, the
Chief Justice of India occupies a position
which is sui generis. Article 124(1)
postulates that the Supreme Court of India
shall consist of a Chief Justice of India and
other Judges. Article 146 reaffirms the
position of the Chief Justice of India as the
head of the institution. From an
institutional perspective the Chief Justice
is placed at the helm of the Supreme
Court. In the allocation of cases and the
constitution of Benches the Chief Justice
has an exclusive prerogative. As a
repository of constitutional trust, the
Chief Justice is an institution in himself.
The authority which is conferred upon the
Chief Justice, it must be remembered, is
vested in a high constitutional functionary.
The authority is entrusted to the Chief
Justice because such an entrustment of
functions is necessary for the efficient
transaction of the administrative and
judicial work of the Court. The ultimate
purpose behind the entrustment of
authority to the Chief Justice is to ensure
that the Supreme Court is able to fulfil and
discharge the constitutional obligations
which govern and provide the rationale for
its existence. The entrustment of functions
to the Chief Justice as the head of the
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institution, is with the purpose of securing
the position of the Supreme Court as an
independent safeguard for the preservation
of personal liberty. There cannot be a
presumption of mistrust. The oath of
office demands nothing less."
(emphasis supplied)
Thus, rendering a decision on any issue of law and the
corrective procedure of it cannot be said to be ground
for recusal of a Judge; otherwise, no Judge can hear a
review, curative petition, or a reference made to the
larger bench.
27. There may not be even one Judge in this
Court who has not taken a view one way or the other
concerning Section 24 of the Act of 2013, either in this
Court or in the High Court. If the submission is accepted,
no Judge will have the power to decide such a matter on
the judicial side. We have to deal with the cases every
day in which similar or somewhat different questions are
involved concerning the same provision. For having
taken a view once, if recusal is to be made, it would
be very difficult to get a Judge to hear and decide a
question of law. We have to correct the decision, apply
the law, independently interpret the provisions as per the
fact situation of the case which may not be germane in
the earlier matter. A judgment is not a haltingplace, it is
stepping stone. It is not like a holy book which
cannot be amended or corrected. It may also work to the
advantage of all concerned if a Judge having decided the
matter either way is also a member of the larger bench. A
Judge who had rendered any decision in a smaller
combination is not disqualified from being part of a
larger Bench when a reference is made to the larger
bench. Rather, it is a consistent practice prevailing in
various High Courts as well as of this Court to include
the same Judge/Judges in larger Benches. Shri Mohan
Parasaran, learned senior counsel has referred to Rule 8
of Delhi High Court Rules contained in Chapter 3; Part
C which reads as under:
"8. Judge or Judges who refer a case
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shall ordinarily sit on the bench which
considers the reference - The Judges or
a Bench by whom any question or
case is referred shall ordinarily be
members of the Division Bench or
Full Bench, as the case may be
appointed to consider such question or
case."
The rule provides that a Judge who referred a case has
to sit on the larger Bench to consider the reference. In
the present case also, the reference has been made by
me and my recusal has been sought. Thus, based on the
consistent practice, we find that no ground for recusal
is made out.
28. Recusal has been prayed for on the ground of
legal pre disposition. Where recusal is sought on the
ground, various questions arise for consideration.
Firstly, legal predisposition is the outcome of a judicial
process of interpretation, and the entire judicial system
exists for refining the same. There is absolutely nothing
wrong in holding a particular view in a previous
judgment for or against a view canvassed by a litigant.
No litigant can choose, who should be on the Bench.
He cannot say that a Judge who might have decided a
case on a particular issue, which may go against his
interest subsequently or is part of a larger Bench should
not hear his case. Furthermore, if a party or his Counsel
can at length argue on the question of recusal of the
Judge before him, he can also successfully question
the correctness of a judgment rendered by him. A
litigant has got the right to make arguments which suit
his cause before a Judge/Judges having taken a contrary
view earlier. Moreover, if it is open to one litigant to
seek recusal and recusal is permitted, then the right has
to be given to the opposite party to seek recusal of a
Judge who may have decided a case against his
interest. In case it is permitted to either side, that
would end judicial independence. Then parties will be
choosing Benches to their liking. In that case, the
Judges holding a view can be termed to be
disqualified. In case the submission of recusal is
accepted, the Judges having either side view, cannot
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hear the matter and have to recuse from hearing. In that
case to find neutral Judges would be difficult to find
and that would be subvert to the very concept of
independent judicial system. If litigants are given the
right to seek recusal of a judge on the ground that in a
smaller Bench, a view has been taken by the Judge, the
correctness of which has to be decided by the larger
Bench, which includes the same Judge, then on a
parity of reasoning recusal might be sought on the
ground of the judge having taken a view one way or the
other even in a different case in which similar issues
are involved if the judge has decided similar issues
earlier, in the same Court or in a different Court.
This would open the flood gates of forum shopping.
Recusal upon an imagined apprehension of legal pre-
disposition would, in reality amount to acceding to the
request that a Judge having a particular view and
leanings in favour of the view which suits a particular
litigant, should man the Bench. It would not only be
allowing Bench hunting but would also be against the
judicial discipline and will erode the confidence of the
common man for which the judicial system survives.
29. The question that comes to the mind is
whether one of us should recuse in order to prevent the
embarrassment caused to a Judge by a member of the
Bar, by seeking his recusal. Recusal would be the
easiest way to solve it. On the other hand, a larger
question arises. If request for recusal on the ground of
legal predisposition in the form of a judgment is
acceded to, that would destroy the very edifice of an
independent judicial system.
30. The entire judicial system is based on sound
constitutional principles. The roster making power is
bestowed on the Chief Justice of India so that litigants
are not able to choose the Judges before whom they
have to argue a matter, and he is a constitutional
functionary who has been enjoined with this task at
the highest pedestal to exercise the power of roster
making. He is the repository of faith. Once he has
exercised his power, it is not for the Judges to choose.
As per their oath, they have to discharge their duties
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THE HIGH COURT OF MADHYA PRADESH
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without fear and favour and in a dispassionate
manner without any ill will, bias towards litigants, or
a cause. The question which arises is whether merely
delivering a judgment of which correctness is to be
examined, would disqualifying a Judge from being part
of the larger Bench. The answer to the question has to
be in the negative as there is a consistent practice of
this Court which has evolved that the Judges who
have rendered a decision earlier in smaller combination,
have also formed part of the larger Bench, and
there are umpteen occasions as mentioned above when
Judges have overruled their own view. In LITEKY
(supra), the United States Supreme Court has held that
rather it may be advantageous to have them on a Bench
hearing the matter as judgments are rendered after
hearing the arguments of learned counsel for the
parties. There is always a scope to further develop the
law and to correct the errors, and this can better be done
by having Judges on the Bench, who have earlier
rendered judgments with respect to the subjectmatter to
which of the parties the view taken suits is not relevant.
31. If requests for recusal are acceded to for the
asking, litigants will be unscrupulously taking over the
roster making powers of the Chief Justice and that
would tantamount to interference with the judicial
system, by the mighty to have a particular Bench by
employing several means and putting all kinds of
pressures from all angles all around. It is the test of the
ability of the judicial system to withstand such
onslaught made from every nook and corner. Any recusal
in the circumstances is ruled out, such prayer strengthens
the stern determination not to succumb to any such
pressure and not to recuse on the ground on which
recusal sought because for any reason, such a prayer
is permitted, even once, it would tantamount to
cowardice and give room to big and mighty to destroy the
very judicial system. Moreover, recusal in such
unjustified circumstances, would become the norm.
32. It was vehemently urged by learned senior
counsel on behalf of the respondents that they may feel
embarrassed in arguing a proposition of law which has
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THE HIGH COURT OF MADHYA PRADESH
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been dealt with in the Indore Development Authority
elaborately. We find that given that arguments on
recusal, spilling for over a day, could be made
vociferously, in a belligerent fashion and with utmost
ability, the submission that the learned counsel would
feel diffident in arguing a proposition of law on merits,
is difficult to accept. We feel that there is no dearth
of talent in this Court to argue a matter most effectively
even against the tide. The lawyers have compelled this
Court time and again to change its views and to refine
the law. This Court is known for not a particular view
but for refining the law and that has been done with the
help, ability and legal ingenuity of the lawyers to
convince this Court with aplomb to correct its view.
That is how the process goes on as the entire system
exists for the people of this country. Under the guise of
that, a reasonable man should not have even an iota of
doubt as to the impartiality of the Tribunal. If recusal is
made, it would tantamount to giving room to
unscrupulous litigant to have a Judge of their choice
who can share the views which are to be canvassed by
them. No such right can be given to any person under
the aforesaid guise; there is no cause for any
apprehension. There is no room to entertain the same.
The plea cannot be termed anything other than Bench
hunting, if it is said that until and unless the one which
suits a litigant is found the matters are not to be argued.
33. It also passes comprehension whether in a
Constitution Bench, consisting of five Judges, prayer
for recusal of a Judge who has taken a particular view
earlier, is justified? The Bench consists of five
Judges. Each Judge may have his own view. They
would not succumb to a view held by one of the
judges. They may also have their own view in the
matter. Are they also to be disqualified? In case the
petitioner's prayer is to be allowed, then they may want a
Bench of 5:0 in their favour or 4 in favour and 1
against or 3 in favour and 2 against. That is not how
the system can survive. The very idea of seeking recusal
is inconceivable and wholly unjustified, and the prayer
cannot be acceded to.
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THE HIGH COURT OF MADHYA PRADESH
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34. The decision in Supreme Court Advocateson-
Record Association & Anr. v. Union of India (recusal
matter), (2016) 5 SCC 808, has been referred to.
Recusal of Justice Khehar (as His Lordship then was)
was sought from the Constitution Bench. The principles
have been summarised by this Court. The first principle
which this Court has discussed is the impartiality of a
Judge. It has been observed by Justice Chelameswar
that the first principle is that the Judge should be
impartial. Merely having a legal opinion has no
connection with impartiality. It may be within the
purview of the legal correctness of the opinion. The
second test is Latin maxim nemo judex in re sua i.e.,
no man shall be a Judge in his own cause. A judgment
rendered by a Judge is not in his own cause. Grant
Hammond, a former Judge of the Court of Appeal of
New Zealand has in his book 'Judicial Recusal', which
has been referred to, observed that English Common
Law on recusal was both simple and highly constrained;
a Judge could only be disqualified for a direct
pecuniary interest or consanguinity, affinity, friendship
or enmity with a party or because he was or had been a
party's advocate. The Court has discussed the matter
thus:
"12. Grant Hammond, a former Judge of the
Court of Appeal of New Zealand and an
academician, in his book titled Judicial Recusal
traced out principles on the law of recusal as
developed in England in the following words:
"The central feature of the early
English common law on recusal was
both simple and highly constrained: a
Judge could only be disqualified for a
direct pecuniary interest. What would
today be termed 'bias', which is easily
the most controversial ground for
disqualification, was entirely rejected
as a ground for recusal of Judges,
although it was not completely
dismissed in relation to jurors.
This was in marked contrast to the
relatively sophisticated canon law,
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THE HIGH COURT OF MADHYA PRADESH
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which provided for recusal if a Judge
was suspected of partiality because of
consanguinity, affinity, friendship or
enmity with a party, or because of his
subordinate status towards a party or
because he was or had been a party's
advocate."
He also pointed out that in contrast in the
United States of America, the subject is
covered by legislation.
13. Dimes v. Grand Junction Canal, (1852)
3 HLC 759, is one of the earliest cases
where the question of disqualification of a
Judge was considered. The ground was that
he had some pecuniary interest in the
matter. We are not concerned with the
details of the dispute between the parties to
the case. Lord Chancellor Cottenham heard
the appeal against an order of the Vice-
Chancellor and confirmed the order. The
order went in favour of the defendant
Company. A year later, Dimes discovered
that Lord Chancellor Cottenham had
shares in the defendant Company. He
petitioned the Queen for her intervention.
The litigation had a long and chequered
history, the details of which are not material
for us. Eventually, the matter reached the
House of Lords. The House dismissed the
appeal of Dimes on the ground that setting
aside of the order of the Lord Chancellor
would still leave the order of the Vice-
Chancellor intact as Lord Chancellor had
merely affirmed the order of the Vice
Chancellor. However, the House of Lords
held that participation of Lord Cottenham in
the adjudicatory process was not justified.
Though Lord Campbell observed: (Dimes
case, ER p. 315)
"... No one can suppose that Lord
Cottenham could be, in the remotest
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THE HIGH COURT OF MADHYA PRADESH
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degree, influenced by the interest he
had in this concern: but, my Lords, it
is of the last importance that the
maxim that no man is to be a Judge
in his own cause should be held
sacred. And that is not to be confined
to a cause in which he is a party, but
applies to a cause in which he has an
interest. ... This will be a lesson to all
inferior tribunals to take care not only
that in their decrees they are not
influenced by their personal interest,
but to avoid the appearance of
labouring under such an influence."
14. Summing up the principle laid
down by the abovementioned case,
Hammond observed as follows:
"The 'nopecuniary interest'
principle as expressed in Dimes
requires a judge to be automatically
disqualified when there is neither
actual bias nor even an apprehension
of bias on the part of that judge. The
fundamental philosophical
underpinning of Dimes is therefore
predicated on a conflict of interest
approach."
15. The next landmark case on the
question of "bias" is R. v. Gough,
1993 AC 646. Gough was convicted
for an offence of conspiracy to rob
and was sentenced to imprisonment
for fifteen years by the trial court. It
was a trial by Jury. After the
conviction was announced, it was
brought to the notice of the trial court
that one of the jurors was a neighbour
of the convict. The convict appealed
to the Court of Appeal unsuccessfully.
One of the grounds on which the
conviction was challenged was that, in
view of the fact that one of the jurors
being a neighbour of the convict
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presented a possibility of bias on her
part and therefore the conviction is
unsustainable. The Court of Appeal
noticed that there are two lines of
authority propounding two different
tests for determining disqualification
of a Judge on the ground of bias:
(1) "real danger" test; and
(2) "reasonable suspicion" test.
The Court of Appeal confirmed the
conviction by applying the "real danger" test.
16. The matter was carried further to the
House of Lords. Lord Goff noticed that
there are a series of authorities which are
"not only large in number but bewildering
in their effect". After analysing the
judgment in Dimes, Lord Goff held:
(Gough case, AC p. 661 FG)
"In such a case, therefore, not only is
it irrelevant that there was in fact no
bias on the part of the tribunal, but
there is no question of investigating,
from an objective point of view,
whether there was any real likelihood
of bias, or any reasonable suspicion of
bias, on the facts of the particular
case. The nature of the interest is
such that public confidence in the
administration of justice requires that
the decision should not stand."
In other words, where a Judge has a
pecuniary interest, no further inquiry as to
whether there was a "real danger" or
"reasonable suspicion" of bias is required to
be undertaken. But in other cases, such an
inquiry is required and the relevant test is
the "real danger" test: (Gough case, AC pp.
661 GH662 AB)
"... But [in other cases], the inquiry is
directed to the question whether there
was such a degree of possibility of
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bias on the part of the tribunal that the
court will not allow the decision to
stand. Such a question may arise in a
wide variety of circumstances. These
include ... cases in which the member
of the tribunal has an interest in the
outcome of the proceedings, which
falls short of a direct pecuniary
interest. Such interests may vary
widely in their nature, in their effect,
and in their relevance to the subject-
matter of the proceedings; and there
is no rule ... that the possession of
such an interest automatically
disqualifies the member of the
tribunal from sitting. Each case falls
to be considered on its own facts."
17. The learned Judge examined various
important cases on the subject and finally
concluded: (Gough case, AC p. 670 EG)
"... Finally, for the avoidance of
doubt, I prefer to state the test in terms
of real danger rather than real
likelihood, to ensure that the court is
thinking in terms of possibility rather
than probability of bias. Accordingly,
having ascertained the relevant
circumstances, the court should ask
itself whether, having regard to those
circumstances, there was a real danger
of bias on the part of the relevant
member of the tribunal in question, in
the sense that he might unfairly regard
(or have unfairly regarded) with
favour, or disfavour, the case of a
party to the issue under consideration
by him...."
18. Lord Woolf agreed with Lord Goff in
his separate judgment. He held: (Gough
case, AC p. 673 FG)
"... There is only one established
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special category and that exists where
the tribunal has a pecuniary or
proprietary interest in the subject-
matter of the proceedings as in Dimes
v. Grand Junction Canal. The courts
should hesitate long before creating
any other special category since this
will immediately create uncertainty as
to what are the parameters of that
category and what is the test to be
applied in the case of that category.
The real danger test is quite capable of
producing the right answer and ensure
that the purity of justice is maintained
across the range of situations where
bias may exist."
19. In substance, the Court held that in
cases where the Judge has a pecuniary
interest in the outcome of the proceedings,
his disqualification is automatic. No further
enquiry whether such an interest lead to a
"real danger" or gave rise to a "reasonable
suspicion" is necessary. In cases of other
interest, the test to determine whether the
Judge is disqualified to hear the case is the
"real danger" test.
20. The R. v. Bow Street Metropolitan
Stipendiary Magistrate, ex p Pinochet
Ugarte (No.2), (2000) 1 AC 119, added one
more category to the cases of automatic
disqualification for a Judge. Pinochet, a
former Chilean dictator, was sought to be
arrested and extradited from England for his
conduct during his incumbency in office.
The issue was whether Pinochet was
entitled to immunity from such arrest or
extradition. Amnesty International, a
charitable organisation, participated in the
said proceedings with the leave of the
Court. The House of Lords held that
Pinochet did not enjoy any such immunity.
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Subsequently, it came to light that Lord
Hoffman, one of the members of the Board
which heard Pinochet case, was a Director
and Chairman of a company (known as
AICL) which was closely linked with
Amnesty International. An application was
made to the House of Lords to set aside the
earlier judgment on the ground of bias on
the part of Lord Hoffman.
21. The House of Lords examined the
following questions:
(i) Whether the connection of Lord
Hoffman with Amnesty International
required him to be automatically
disqualified?
(ii) Whether an enquiry into the
question whether cause of Lord Hoffman's
connection with Amnesty International
posed a real danger or caused a reasonable
apprehension that his judgment is biased --
is necessary?
(iii) Did it make any difference that
Lord Hoffman was only a member of a
company associated with Amnesty
International which was in fact interested
in securing the extradition of Senator
Pinochet?
22. Lord Wilkinson summarised the
principles on which a Judge is disqualified
to hear a case. As per Lord Wilkinson:
(Pinochet case, AC pp. 132 GH133 AC)
"The fundamental principle is that a
man may not be a Judge in his own
cause. This principle, as developed by
the courts, has two very similar but
not identical implications. First it
may be applied literally: if a Judge is
in fact a party to the litigation or has a
financial or proprietary interest in its
outcome then he is indeed sitting as a
Judge in his own cause. In that case,
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the mere fact that he is a party to the
action or has a financial or proprietary
interest in its outcome is sufficient to
cause his automatic disqualification.
The second application of the
principle is where a Judge is not a
party to the suit and does not have a
financial interest in its outcome, but in
some other way his conduct or
behaviour may give rise to a suspicion
that he is not impartial, for example
because of his friendship with a party.
This second type of case is not strictly
speaking an application of the
principle that a man must not be Judge
in his own cause, since the Judge will
not normally be himself benefiting,
but providing a benefit for another by
failing to be impartial.
In my judgment, this case falls
within the first category of case, viz.
where the Judge is disqualified
because he is a Judge in his own
cause. In such a case, once it is
shown that the Judge is himself a
party to the cause, or has a relevant
interest in its subjectmatter, he is
disqualified without any investigation
into whether there was a likelihood or
suspicion of bias. The mere fact of his
interest is sufficient to disqualify him
unless he has made sufficient
disclosure...."
And framed the question: (AC p. 134BC)
"... the question then arises whether,
in nonfinancial litigation, anything
other than a financial or proprietary
interest in the outcome is sufficient
automatically to disqualify a man
from sitting as Judge in the cause."
(emphasis supplied)
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THE HIGH COURT OF MADHYA PRADESH
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He opined that although the earlier cases have
"all dealt with automatic
disqualification on the grounds of
pecuniary interest, there is no good
reason in principle for so limiting
automatic disqualification". (AC p.
135B)
23. Lord Wilkinson concluded that Amnesty
International and its associate company
known as AICL, had a nonpecuniary
interest established that Senator Pinochet
was not immune from the process of
extradition. He concluded that: (Pinochet
case, AC p. 135CD)
"... the matter at issue does not relate to
money or economic advantage but is
concerned with the promotion of the
cause, the rationale disqualifying a
Judge applies just as much if the
Judge's decision will lead to the
promotion of a cause in which the
Judge is involved together with one of
the parties."
(emphasis supplied)
24. After so concluding, dealing with the last
question, whether the fact that Lord
Hoffman was only a member of AICL but
not a member of Amnesty International made
any difference to the principle, Lord
Wilkinson opined that: (Pinochet case, AC
p. 132H133A)
even though a Judge may not have
financial interest in the outcome of a
case, but in some other way his
conduct or behaviour may give rise to
a suspicion that he is not impartial....
and held that: (AC p. 135 EF)
"... If the absolute impartiality of the
judiciary is to be maintained, there
must be a rule which automatically
disqualifies a Judge who is involved,
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THE HIGH COURT OF MADHYA PRADESH
CRA No.5491/2021
(BALRAM VS. STATE OF M.P. & ANR.)
whether personally or as a Director of
a company, in promoting the same
causes in the same organisation as is a
party to the suit. There is no room for
fine distinctions...."
This aspect of the matter was considered in
P.D. Dinakaran (1) v. Judges Inquiry
Committee, (2011) 8 SCC 380
25. From the above decisions, in our opinion,
the following principles emerge:
25.1 If a Judge has a financial interest in
the outcome of a case, he is automatically
disqualified from hearing the case.
25.2 In cases where the interest of the Judge
in the case is other than financial, then the
disqualification is not automatic but an
enquiry is required whether the existence of
such an interest disqualifies the Judge tested
in the light of either on the principle of "real
danger" or "reasonable apprehension" of
bias.
25.3 The Pinochet case added a new
category i.e. that the Judge is automatically
disqualified from hearing a case where
the Judge is interested in a cause which is
being promoted by one of the parties to the
case.
26. It is nobody's case that, in the case at
hand, Justice Khehar had any pecuniary
interest or any other interest falling under
the second of the abovementioned categories.
By the very nature of the case, no such
interest can arise at all.
27. The question is whether the principle of
law laid down in Pinochet case is
attracted. In other words, whether Justice
Khehar can be said to be sharing any interest
which one of the parties is promoting. All the
parties to these proceedings claim to be
promoting the cause of ensuring the existence
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THE HIGH COURT OF MADHYA PRADESH
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(BALRAM VS. STATE OF M.P. & ANR.)
of an impartial and independent judiciary.
The only difference of opinion between the
parties is regarding the process by which
such a result is to be achieved. Therefore, it
cannot be said that Justice Khehar shares any
interest which any one of the parties to the
proceeding is seeking to promote.
28. The implication of Shri Nariman's
submission is that Justice Khehar would be
predetermined to hold the impugned
legislation to be invalid. We fail to
understand the stand of the petitioners. If
such apprehension of the petitioners comes
true, the beneficiaries would be the
petitioners only. The grievance, if any, on
this ground should be on the part of the
respondents.
29. The learned Attorney General appearing
for the Union of India made an emphatic
statement that the Union of India has no
objection for Justice Khehar hearing the
matter as a Presiding Judge of the Bench.
30. No precedent has been brought to our
notice, where courts ruled at the instance of
the beneficiary of bias on the part of the
adjudicator, that a judgment or an
administrative decision is either voidable or
void on the ground of bias. On the other
hand, it is a well established principle of law
that an objection based on bias of the
adjudicator can be waived. Courts generally
did not entertain such objection raised
belatedly by the aggrieved party:
"The right to object to a disqualified
adjudicator may be waived, and this
may be so even where the
disqualification is statutory. The court
normally insists that the objection
shall be taken as soon as the party
prejudiced knows the facts which
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THE HIGH COURT OF MADHYA PRADESH
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entitle him to object. If, after he or his
advisors know of the disqualification,
they let the proceedings continue
without protest, they are held to have
waived their objection and the
determination cannot be challenged."
In our opinion, the implication of the above
principle is that only a party who has
suffered or is likely to suffer an adverse
adjudication because of the possibility of
bias on the part of the adjudicator can raise
the objection.
31. The significant power as described by
Shri Nariman does not inhere only to the
members of the Collegium, but inheres in
every Judge of this Court who might be
called upon to express his opinion regarding
the proposals of various appointments of the
High Court Judges, Chief Justices or Judges
of this Court, while the members of the
Collegium are required to exercise such
"significant power" with respect to each and
every appointment of the abovementioned
categories, the other Judges of this Court
are required to exercise such "significant
power", at least with respect to the
appointments to or from the High Court with
which they were earlier associated with either
as Judges or Chief Justices. The argument of
Shri Nariman, if accepted would render all
the Judges of this Court disqualified from
hearing the present controversy. A result not
legally permitted by the "doctrine of
necessity".
Justice J.S. Khehar, in his opinion, has
observed thus:
"57. The reason that was pointed out
against me, for seeking my recusal was,
that I was a part of the 1 + 4 Collegium.
But that should have been a
disqualification for Anil R. Dave, J. as
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THE HIGH COURT OF MADHYA PRADESH
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(BALRAM VS. STATE OF M.P. & ANR.)
well. When he commenced hearing of the
matters, and till 742015, he suffered the
same alleged disqualification. Yet, the
objection raised against me, was not
raised against him. When confronted, Mr
Fali S. Nariman vociferously contested,
that he had not sought the recusal of Anil
R. Dave, J. He supported his assertion
with proof. One wonders, why did he not
seek the recusal of Anil R. Dave, J.?
There is no doubt about the fact, that I
have been a member of the 1 + 4
Collegium, and it is likely that I would
also shortly become a Member of NJAC,
if the present challenge raised by the
petitioners was not to succeed. I would
therefore remain a part of the selection
procedure, irrespective of the process
which prevails. That however is the
position with reference to four of us (on
the instant fiveJudge Bench). Besides me,
my colleagues on the Bench -- J.
Chelameswar, Madan B. Lokur and
Kurian Joseph, JJ. would in due course
be a part of the Collegium (if the writ
petitioners before this Court were to
succeed), or alternatively, would be a
part of NJAC (if the writ petitioners were
to fail). In such eventuality, the averment
of conflict of interest, ought to have been
raised not only against me, but also
against my three colleagues. But, that
was not the manner in which the issue
has been canvassed. In my considered
view, the prayer for my recusal is not well
founded. If I were to accede to the prayer
for my recusal, I would be initiating a
wrong practice, and laying down a wrong
precedent. A Judge may recuse at his own,
from a case entrusted to him by the Chief
Justice. That would be a matter of his
own choosing. But recusal at the asking
of a litigating party, unless justified, must
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THE HIGH COURT OF MADHYA PRADESH
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(BALRAM VS. STATE OF M.P. & ANR.)
never to be acceded to. For that would
give the impression, of the Judge had
been scared out of the case, just by the
force of the objection. A Judge before he
assumes his office, takes an oath to
discharge his duties without fear or favour.
He would breach his oath of office, if he
accepts a prayer for recusal, unless
justified. It is my duty to discharge my
responsibility with absolute earnestness
and sincerity. It is my duty to abide by my
oath of office to uphold the Constitution
and the laws. My decision to continue to
be a part of the Bench, flows from the oath
which I took, at the time of my elevation to
this Court.
(emphasis supplied)
Justice Lokur, in his opinion, has observed:
"60. In my respectful opinion, when an
application is made for the recusal of a
Judge from hearing a case, the
application is made to the Judge
concerned and not to the Bench as a
whole. Therefore, my learned brother
Justice Khehar is absolutely correct in
stating that the decision is entirely his, and
I respect his decision.
65. The issue of recusal from hearing a
case is not as simple as it appears. The
questions thrown up are quite significant
and since it appears that such applications
are gaining frequency, it is time that some
procedural and substantive rules are
framed in this regard. If appropriate rules
are framed, then, in a given case, it would
avoid embarrassment to other Judges on
the Bench."
It has been held that decision to recuse is that of the
Judge concerned, and unjustified pressure should never
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THE HIGH COURT OF MADHYA PRADESH
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(BALRAM VS. STATE OF M.P. & ANR.)
be allowed.
35. Shri Tushar Mehta, learned Solicitor General, has
relied upon the decision in Subrata Roy Sahara v.
Union of India & Ors., (2014) 8 SCC 470. Recusal of
the Bench was sought by way of filing a petition. The
embarrassment which is caused by such a prayer,
concept of correction of a mistake, if any, recognition
of mistake and its rectification have also been
considered. This Court has observed:
"7. Now the embarrassment part. Having
gone through the pleadings of the writ
petition we were satisfied that nothing
expressed therein could be assumed as
would humiliate or discomfort us by
putting us to shame. To modify an earlier
order passed by us for a mistake we may
have committed, which is apparent on the
face of the record, is a jurisdiction we
regularly exercise under Article 137 of
the Constitution of India. Added to that,
it is open to a party to file a curative
petition as held by this Court in Rupa
Ashok Hurra v. Ashok Hurra, (2002) 4
SCC 388. These jurisdictions are regularly
exercised by us, when made out, without
any embarrassment. Correction of a
wrong order would never put anyone to
shame. Recognition of a mistake, and its
rectification, would certainly not put us to
shame. In our considered view,
embarrassment would arise when the order
assailed is actuated by personal and/or
extraneous considerations, and the
pleadings record such an accusation. No
such allegation was made in the present
writ petition. And therefore, we were fully
satisfied that the feeling entertained by the
petitioner, that we would not pass an
appropriate order, if the order impugned
dated 432014 was found to be partly or
fully unjustified, was totally misplaced."
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THE HIGH COURT OF MADHYA PRADESH
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(BALRAM VS. STATE OF M.P. & ANR.)
36. In Subrata Roy Sahara (supra) this Court has also
referred to the decision of Mr. R.K. Anand's case
(supra) in which it has been observed that the path of
recusal is very often a convenient and a soft option as a
Judge has no vested interest in doing a particular
matter. It is the Constitution of India which enjoins a
Judge to duly and faithfully and to the best of his
ability, knowledge, and judgment, perform the duties of
his office without fear or favour. Affronts, jibes, and
consciously planned snubs should not deter us from
discharging our onerous responsibility. This Court has
observed:
"10. We have recorded the above
narration, lest we are accused of not
correctly depicting the submissions as they
were canvassed before us. In our
understanding, the oath of our office
required us to go ahead with the hearing.
And not to be overawed by such
submissions. In our view, not hearing the
matter, would constitute an act in breach of
our oath of office, which mandates us to
perform the duties of our office, to the best
of our ability, without fear or favour,
affection or ill will.
11. This is certainly not the first time when
solicitation for recusal has been sought by
the learned counsel. Such a recorded
peremptory prayer was made by Mr R.K.
Anand, an eminent Senior Advocate, before
the High Court of Delhi seeking the recusal
of Mr Justice Manmohan Sarin from
hearing his personal case. Mr Justice
Manmohan Sarin while declining the
request made by Mr R.K. Anand,
observed as under:
"The path of recusal is very often a
convenient and a soft option. This is
especially so since a Judge really has no
vested interest in doing a particular matter.
However, the oath of office taken under
Article 219 of the Constitution of India
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THE HIGH COURT OF MADHYA PRADESH
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(BALRAM VS. STATE OF M.P. & ANR.)
enjoins the Judge to duly and faithfully and
to the best of his knowledge and judgment,
perform the duties of office without fear or
favour, affection or ill will while
upholding the Constitution and the laws. In
a case, where unfounded and motivated
allegations of bias are sought to be
made with a view of forum hunting/Bench
preference or browbeating the Court, then,
succumbing to such a pressure would
tantamount to not fulfilling the oath of
office."
The above determination of the High Court
of Delhi was assailed before this Court in
R.K. Anand v. Delhi High Court, (2009)
8 SCC 106. The determination of the High
Court whereby Mr Justice Manmohan Sarin
declined to withdraw from the hearing of the
case came to be upheld, with the following
observations: (SCC p. 192, para 263)
"263. The above passage, in our view,
correctly sums up what should be the
court's response in the face of a
request for recusal made with the
intent to intimidate the court or to get
better of an 'inconvenient' Judge or to
obfuscate the issues or to cause
obstruction and delay the proceedings
or in any other way frustrate or
obstruct the course of justice."
(emphasis supplied)
In fact, the observations of the High Court
of Delhi and those of this Court reflected
exactly how it felt, when the learned
counsel addressed the Court at the
commencement of the hearing. If it was
the learned counsel's posturing antics, aimed
at benchhunting or benchhopping (or should
we say, benchavoiding), we would not
43
THE HIGH COURT OF MADHYA PRADESH
CRA No.5491/2021
(BALRAM VS. STATE OF M.P. & ANR.)
allow that. Affronts, jibes and carefully and
consciously planned snubs could not deter
us from discharging our onerous
responsibility. We could at any time during
the course of hearing walk out and make
way for another Bench to decide the
matter, if ever we felt that that would be the
righteous course to follow. Whether or not
it would be better for another Bench to
hear this case will emerge from the
conclusions, we will draw, in the course of
the present determination.
131. We shall now deal with the substance,
and the import, of the judgments relied
upon. It is not the case of the petitioner
that we have any connection with either
the two Companies under reference, or any
other company/firm which constitutes the
Sahara Group. We may state, that neither
of us has even a single share with the
two Companies concerned or with any
other company/firm comprising of the
Sahara Group. In order to remove all
ambiguity in the matter we would further
state, that neither of us, nor any of our
dependent family members, own even a
single share in any company whatsoever.
Neither of us has been assisted in this
case, for its determination on merits by
any law clerk, intern or staff member,
while hearing, dealing with or deciding the
controversy. Nor has any assertion in this
behalf been made against us by the
petitioner or his learned counsel.
Accordingly, the factual position, which
was the basis of the decisions relied upon
by the learned counsel, is not available in
the facts and circumstances of this case. In
the above view of the matter, it is but
natural to conclude, that none of the
judgments relied upon by the learned
Senior Counsel for the petitioner, on the
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THE HIGH COURT OF MADHYA PRADESH
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(BALRAM VS. STATE OF M.P. & ANR.)
subject of bias, are applicable to the facts
and circumstances of this case. We are
satisfied that none of the disguised
aspersions cast by the learned Senior
Counsel, would be sufficient to justify the
invocation of the maxim, that justice must
not actually be done, but must also appear
to be done. As already noticed above, even
though our combination as a Bench, did
not exist at the time, when the present
petition was filed, a Special Bench, with
the present composition, was constituted
by the Hon'ble the Chief Justice, as a
matter of his conscious determination. No
litigant can be permitted to dissuade us in
discharging the onerous responsibility
assigned to us by the Hon'ble the Chief
Justice.
135. Dr. Rajeev Dhavan, learned Senior
Counsel also accused us of having a
predisposition in respect of the
controversy. This predisposition, according
to him, appeared to be on the basis of a
strong commitment towards the "other
side". This assertion was repeated several
times during the hearing. But, which is the
other side? In terms of our order dated 31-
82012 the only gainer on the other side is
the Government of India. The eighth
direction of our order dated 3182012,
reads as under: (SCC p. 172, para 326)
"326.8. SEBI (WTM) if, after the
verification of the details furnished, is
unable to find out the whereabouts of
all or any of the subscribers, then
the amount collected from such
subscribers will be appropriated to the
Government of India."
(emphasis supplied)
If the "other side", is the Government of
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THE HIGH COURT OF MADHYA PRADESH
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(BALRAM VS. STATE OF M.P. & ANR.)
India, there is certainly no substance in the
aspersion cast by the learned counsel. Just
the above aspect of the matter is sufficient
to burst the bubble of all the carefully
crafted insinuations, systematically
offloaded, by the learned counsel for
effect and impact.
137. The observations recorded in the above
judgment in Jaswant Singh v. Virender
Singh, 1995 Supp (1) SCC 384, are fully
applicable to the mannerism and demeanour
of the petitioner Mr Subrata Roy Sahara and
some of the learned Senior Counsel. We
would have declined to recuse from the
matter, even if the "other side", had been
a private party. For, our oath of office
requires us to discharge our obligations,
without fear or favour. We therefore also
commend to all courts, to similarly repulse
all baseless and unfounded insinuations,
unless of course, they should not be
hearing a particular matter, for reasons of
their direct or indirect involvement. The
benchmark, that justice must not only be
done but should also appear to be done,
has to be preserved at all costs."
37. In R.K. Anand v. Registrar, Delhi High Court,
(2009) 8 SCC 106, it was observed:
264. We are constrained to pause here for a
moment and to express grave concern over
the fact that lately such tendencies and
practices are on the increase. We have
come across instances where one would
simply throw a stone on a Judge (who is
quite defenceless in such matters!) and
later on cite the gratuitous attack as a
ground to ask the Judge to recuse himself
from hearing a case in which he would be
appearing. Such conduct is bound to cause
deep hurt to the Judge concerned but what
is of far greater importance is that it defies
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THE HIGH COURT OF MADHYA PRADESH
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(BALRAM VS. STATE OF M.P. & ANR.)
the very fundamentals of administration of
justice. A motivated application for
recusal, therefore, needs to be dealt with
sternly and should be viewed ordinarily as
interference in the due course of justice
leading to penal consequences."
38. In Kamini Jaiswal v. Union of India & Anr.,
(2018) 1 SCC 156, this Court has dealt with the
matter of recusal thus:
"24. There is no conflict of interest in such
a matter. In case a Judge is hearing a
matter and if he comes to know that any
party is unscrupulously trying to influence
the decisionmaking or indulging in
malpractices, it is incumbent upon the
Judge to take cognizance of such a matter
under the Contempt of Courts Act and to
deal with and punish such person in
accordance with law as that is not the
conflict of interest but the purpose for
which the entire system exists. Such things
cannot be ignored and recusal of a
Judge cannot be asked on the ground of
conflict of interest, it would be the saddest
day for the judicial system of this country
to ignore such aspects on the unfounded
allegations and materials. It was highly
improper for the petitioner to allege
conflict of interest in the petition filed that
the Hon'ble Chief Justice of India should
not hear on judicial side or allocate the
matter on the administrative side. It
appears that in order to achieve this end
the particular request has been made by
filing successive petitions day after the
other and prayer was made to avoid the
Hon'ble Chief Justice of India to exercise
the power for allocation of cases which
was clearly an attempt at forum hunting
and has to be deprecated in the strongest
possible words. Making such scandalous
remarks also tantamount to interfering
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THE HIGH COURT OF MADHYA PRADESH
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with administration of justice, an advocate
cannot escape the responsibility on the
ground that he drafted the same in his/her
personal capacity as laid down in
Shamsher Singh Bedi v. High Court of
Punjab & Haryana, (1996) 7 SCC 99. In
Charan Lal Sahu v. Union of India,
(1988) 3 SCC 255, this Court has
observed that in a petition filed under
Article 32 in the form of PIL attempt of
mudslinging against the advocates,
Supreme Court and also against the other
constitutional institutions indulged in by an
advocate in a careless manner,
meaningless and as contradictory
pleadings, clumsy allegations, contempt
was ordered to be drawn. The Registry was
directed not to entertain any PIL petition of
the petitioner in future.
27. This Court considered various categories
of forum shopping in Union of India v.
Cipla Ltd., (2009) 8 SCC 106. Even
making allegations of a per se conflict of
interest require the matter could be
transferred to another Bench, has also been
held to be another form of forum hunting.
This Court has considered various
decisions thus: (SCC pp. 31820, paras 146-
155)
"146. The learned Solicitor General
submitted that Cipla was guilty of
forum shopping inasmuch as it had
filed petitions in the Bombay High
Court, the Karnataka High Court and
also an affidavit in the Delhi High Court
as a member of the Bulk Drug
Manufacturers Association and had
eventually approached the Allahabad
High Court for relief resulting in the
impugned judgment and order dated 33-
2004. It was submitted that since Cipla
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THE HIGH COURT OF MADHYA PRADESH
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had approached several constitutional
courts for relief, the proceedings
initiated in the Allahabad High Court
clearly amount to forum shopping.
147. We are not at all in agreement with
the learned Solicitor General. Forum
shopping takes several hues and shades
and Cipla's petitions do not fall under
any category of forum shopping.
148. A classic example of forum
shopping is when a litigant approaches
one Court for relief but does not get the
desired relief and then approaches
another Court for the same relief. This
occurred in Rajiv Bhatia v. State
(NCT of Delhi), (1999) 8 SCC
525. The respondent mother of a young
child had filed a petition for a writ of
habeas corpus in the Rajasthan High
Court and apparently did not get the
required relief from that Court. She then
filed a petition in the Delhi High Court
also for a writ of habeas corpus and
obtained the necessary relief.
Notwithstanding this, this Court did not
interfere with the order passed by the
Delhi High Court for the reason that this
Court ascertained the views of the child
and found that she did not want to even
talk to her adoptive parents and
therefore the custody of the child
granted by the Delhi High Court to the
respondent mother was not interfered
with. The decision of this Court is on its
own facts, even though it is a classic
case of forum shopping.
149. In Arathi Bandi v. Bandi
Jagadrakshaka Rao, (2013) 15 SCC
790, this Court noted that jurisdiction in
a court is not attracted by the operation
or creation of fortuitous circumstances.
In that case, circumstances were created
by one of the parties to the dispute to
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(BALRAM VS. STATE OF M.P. & ANR.)
confer jurisdiction on a particular High
Court. This was frowned upon by this
Court by observing that to allow the
assumption of jurisdiction in created
circumstances would only result in
encouraging forum shopping.
150. Another case of creating
circumstances for the purposes of forum
shopping was World Tanker Carrier
Corpn. v. SNP Shipping Services (P)
Ltd., (1998) 5 SCC 310, wherein it was
observed that the respondentplaintiff had
made a deliberate attempt to bring the
cause of action, namely, a collision
between two vessels on the high seas
within the jurisdiction of the Bombay
High Court. Bringing one of the vessels
to Bombay in order to confer
jurisdiction on the Bombay High Court
had the character of forum shopping
rather than anything else.
151. Another form of forum shopping is
taking advantage of a view held by a
particular High Court in contrast to a
different view held by another High
Court. In Ambica Industries v. CCE,
(2007) 6 SCC 769, the assessee was
from Lucknow. It challenged an order
passed by the Customs, Excise and
Service Tax Appellate Tribunal
("CESTAT") located in Delhi before the
Delhi High Court. CESTAT had
jurisdiction over the State of Uttar
Pradesh, NCT of Delhi and the State of
Maharashtra. The Delhi High Court did
not entertain the proceedings initiated
by the assessee for want of territorial
jurisdiction. Dismissing the assessee's
appeal this Court gave the example of
an assessee affected by an assessment
order in Bombay invoking the
jurisdiction of the Delhi High Court to
take advantage of the law laid down by
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THE HIGH COURT OF MADHYA PRADESH
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the Delhi High Court or an assessee
affected by an order of assessment made
at Bombay invoking the jurisdiction of
the Allahabad High Court to take
advantage of the law laid down by it
and consequently evade the law laid
down by the Bombay High Court. It
was said that this could not be allowed
and circumstances such as this would
lead to some sort of judicial anarchy.
152. Yet another form of forum
shopping was noticed in Jagmohan
Bahl v. State (NCT of Delhi), (2014) 16
SCC 501, wherein it was held that
successive bail applications filed by a
litigant ought to be heard by the same
learned Judge, otherwise an
unscrupulous litigant would go on filing
bail applications before different Judges
until a favourable order is obtained.
Unless this practice was nipped in the
bud, it would encourage unscrupulous
litigants and encourage them to
entertain the idea that they can indulge
in forum shopping, which has no
sanction in law and certainly no
sanctity.
153. Another category of forum
shopping is approaching different courts
for the same relief by making a minor
change in the prayer clause of the
petition. In Udyami Evam Khadi
Gramodyog Welfare Sanstha v. State of
U.P., (2008) 1 SCC 560, it was noticed
by this Court that four writ applications
were filed by a litigant and although the
prayers were apparently different, the
core issue in each petition centred round
the recovery of the amount advanced by
the bank. Similarly, substituting some
petitioners for others with a view to
confer jurisdiction on a particular court
would also amount to forum shopping
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THE HIGH COURT OF MADHYA PRADESH
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by that group of petitioners.
154. Finally and more recently, in
Supreme Court Advocates onRecord
Assn. v. Union of India (Recusal
Matter), (2016) 5 SCC 808, Khehar, J.
noticed yet another form of forum shopping where a litigant makes allegations of a perceived conflict of interest against a Judge requiring the Judge to recuse from the proceedings so that the matter could be transferred to another Judge.
155. The decisions referred to clearly lay down the principle that the Court is required to adopt a functional test visàvis the litigation and the litigant. What has to be seen is whether there is any functional similarity in the proceedings between one court and another or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not."
39. In Bal Kishan Giri v. State of Uttar Pradesh, (2014) 7 SCC 280, this Court has considered derogatory remarks and efforts to destroy the system. The relevant portions are extracted hereunder:
"12. This Court in M.B. Sanghi v. High Court of Punjab and Haryana, (1991) 3 SCC 600, while examining a similar case observed: (SCC p. 602, para 2) "2. ... The foundation of [judicial] system which is based on the independence and impartiality of those who man it will be shaken if disparaging and derogatory remarks are made against the presiding judicial officers with impunity. It is high time that we realise that the much cherished judicial independence has to be protected not only from the executive 52 THE HIGH COURT OF MADHYA PRADESH CRA No.5491/2021 (BALRAM VS. STATE OF M.P. & ANR.) or the legislature but also from those who are an integral part of the system. An independent judiciary is of vital importance to any free society."
13. In Asharam M. Jain v. A.T. Gupta, (1983) 4 SCC 125, while dealing with the issue, this Court observed as under:
(SCC p. 127, para 3) "3. ... The strains and mortification of litigation cannot be allowed to lead litigants to tarnish, terrorise and destroy the system of administration of justice by vilification of Judges. It is not that Judges need be protected;
Judges may well take care of themselves. It is the right and interest of the public in the due administration of justice that has to be protected."
14. In Jennison v. Baker, (1972) 2 QB 52, All ER p. 1006d, it was observed: (QB p.
66 H) "... 'The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope.'"
40. The decision in All India Institute of Medical Sciences v. Prof. Kaushal K. Verma, (2015) 220 DLT 446 (W.P. [C] No.4103/2014), rendered by one of us, Ravindra Bhat, J., has also been referred, thus:
"25. Before ending this unusually prolix order, which can run into the danger of selfvindication, the Court observes that requests for recusal are to be based on reasonable apprehensions; they cannot be speculative or fanciful suppositions. An observation that needs to be emphasized is that recusals generally, and especially those fuelled by unjustified demands can 53 THE HIGH COURT OF MADHYA PRADESH CRA No.5491/2021 (BALRAM VS. STATE OF M.P. & ANR.) be burdensome on the judges who are eventually called upon to decide the cause. Whenever made, the concerned court or judge so charged is bound to take it seriously, as it undermines what is the bedrock of justice delivery impartiality. To borrow the words of Beverely Mclachlin (Chief Justice of Canada) ("Judging in a Democratic State") :
"...judges are not living Oracles. They are human beings, trained in the law, who struggle to understand the situations before them and to resolve them in accordance with the law and their consciences. And judges must learn to live with being wrong. As human beings, judges learn early in their career to deal with criticism. Every new judge dons the judicial robes resolved never to make a mistake. And every new judge fails. Decisions must sometimes be made without the opportunity for full reflection. The law may not be entirely clear. The truth may be elusive. In the result, even the best judges inevitably are found to have erred. The errors are publicly identified by appellate judges and laid plain for all to see. The fact that appellate judges themselves have been known to err may provide only limited consolation."
If one may add, the greater the experience of the judge, the more acutely she or he is aware of her or his fallibility and the pitfalls of acting on impulse or prejudice. The journey, which begins with certainty, later leads to a path of many grey areas. Given that language itself is an imperfect medium, words are but vessels giving shape to ideas and that no human being is perfect, no 54 THE HIGH COURT OF MADHYA PRADESH CRA No.5491/2021 (BALRAM VS. STATE OF M.P. & ANR.) judge can claim to be perfect in communicating ideas. The emphasis on a phrase here or an expression there, bereft of anything more, would not ipso facto disclose a predilection, or predisposition to decide in a particular manner."
There is a concurring opinion thus:
"1. I have seen the draft of the order, prepared by my brother S. Ravindra Bhat, J., on the request of recusal by the Division Bench headed by him. I fully concur with the conclusions reached by him and the reasoning leading thereto. I would only add that the request for recusal by the Bench ignores the fact that it comprises of two Judges each of whom have an independent mind to apply. The presence of another Judge with equal say strengthens the rigor of the judicial scrutiny and cannot be undermined."
41. Mr. Shyam Diwan, learned senior counsel has referred to the foreign Rules stating "what is at stake is the confidence which the courts in a democratic society must inspire in the public. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw". In support of his submission, he has referred to Section 47 of Title 28, Judiciary and Judicial Procedure, 1948 of United States of America; and Rule 24(5)(b) of Rules of Court of the European Union, stating that there is a statutory bar on any judge presiding over cases where judgments delivered by him are to be adjudicated upon in appeal.
42. The decisions and rules relating to the appeal against Chamber Judge are not at all relevant. There is no appeal within the Supreme Court. It has a totally different structure, and has its own corrective mechanism, need not be gainsaid. There is no room for reasonable apprehension to be entertained by the clientele of the respondent's counsel. There is no question of recusal on predisposition as to the legal issue or as to the relief to be granted, such an apprehension also is baseless.
55THE HIGH COURT OF MADHYA PRADESH CRA No.5491/2021 (BALRAM VS. STATE OF M.P. & ANR.) The ultimate test is that it is for the Judge to decide and to find out whether he will be able to deliver impartial justice to a cause with integrity with whatever intellectual capacity at his command and he is not prejudiced by any fact or law and is able to take an independent view. The answer would lie in examining whether without having any bias or without any pressure or not even irked by such a prayer for recusal, can he decide the case impartially. In case the answer is that he will be able to deliver justice to the cause, he cannot and must not recuse from any case as the duty assigned by the Constitution has to be performed as per the oath and there lies the larger public interest. He cannot shake the faith that the common man reposes in the judiciary as it is the last hope for them.
43. Having surveyed the precedents cited at the Bar, and having considered the arguments, it is my considered view that a judge rendering a judgment on a question of law would not be a bar to her or his participation if in a larger Bench if that view is referred for re consideration. The previous judgment cannot constitute bias, or a pre- disposition nor can it seem to be such, so as to raise a reasonable apprehension of bias. Nor can expressions through a judgment (based on the outcome of arguments in an adversarial process) be a "subject matter" bias on the merits of a norm or legal principle, or provisions. The previous decisions and practice of this court have clearly shown that there can be and is no bar as the respondents' senior counsel argue. Accepting the plea of recusal would sound a death knell to the independent system of justice delivery where litigants would dictate participation of judges of their liking in particular cases or causes.
44. Recusal is not to be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse. The embarrassment of hearing the lengthy arguments for recusal should not be a compelling reason to recuse. The law laid down in various decisions has compelled me not to recuse from the case and to perform the duty irrespective of the consequences, as nothing should come in the way of dispensation of justice or discharge 56 THE HIGH COURT OF MADHYA PRADESH CRA No.5491/2021 (BALRAM VS. STATE OF M.P. & ANR.) of duty as a Judge and judicial decisionmaking. There is no room for prejudice or bias. Justice has to be pure, untainted, uninfluenced by any factor, and even decision for recusal cannot be influenced by outside forces. However, if I recuse, it will be a dereliction of duty, injustice to the system, and to other Judges who are or to adorn the Bench/es in the future. I have taken an informed decision after considering the nittygritty of the points at issue, and very importantly, my conscience. In my opinion, I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse.
14. Even otherwise, no Judge should succumb to pressure put by the parties for recusing themselves. As already pointed out that this Court has always decided the bail application of co-accused persons purely on its own merits and some of the accused persons have also been granted bail, and some orders have already been upheld by the Supreme Court.
15. Be that whatever it may.
16. Although, I.A.No.32935/2021, which has been filed is contemptuous in nature, but this Court does not want to initiate proceedings for contempt of Court against the wife of the appellant with a hope and believe that good senses would prevail at some point of time.
17. Accordingly, I.A.No.32935/2021 is hereby rejected.
57THE HIGH COURT OF MADHYA PRADESH CRA No.5491/2021 (BALRAM VS. STATE OF M.P. & ANR.)
18. Heard on merits.
19. It is submitted by the counsel for the appellant that the appellant was not initially involved in the commission of the offence and he was subsequently dragged in. When Shri Govind Puri was directed to read out from the statements of the witnesses, then it was found that he was not having even the copy of the charge-sheet.
Taking a copy of charge-sheet from Shri Sanjay Gupta, who was appearing in connected matter, Shri Govind Puri, Advocate argued the matter. It is submitted that according to the FIR, the younger brother of the complainant was cutting a branch of Babool tree, which was objected by Balram Yadav. It is submitted that Balram Yadav, who was initially involved in the present case is the father of the co-accused Girraj Yadav and not the present appellant. Therefore, it is clear that there are two Balram Yadavs in the present case. This application is being decided by keeping in mind that the present appellant is not the father of co-accused Girraj Yadav, but he is a different person.
20. Thereafter, Shri Govind Puri was directed to read out the entire statement and by reading out the entire statement, it is submitted by the counsel for the appellant that it is alleged that when co-accused Balram Yadav challenged the younger brother of the complainant that he would call his son who would take care of everybody, only then it 58 THE HIGH COURT OF MADHYA PRADESH CRA No.5491/2021 (BALRAM VS. STATE OF M.P. & ANR.) is alleged that the present appellant alongwith the co-accused persons came on the spot and thereafter, the father of the complainant and other victims were assaulted, which resulted in the death of the father of the complainant. The presence of the appellant is specifically mentioned in the FIR as well as in the statements of the witnesses.
For the purposes of this bail application, prima facie it is clear that the appellant was the member of an unlawful assembly and was sharing common object. Otherwise there was no need for him to come alongwith other co-accused persons on the spot. In the present case, not only the father of the complainant was killed, but some of the other victims were also assaulted and the house of the complainant was also set on fire.
21. It is next contended by the counsel for the appellant that the appellant is in jail from 07/06/2020 and there is no progress in the trial. Unfortunately, this submission made by the counsel for the appellant cannot be considered in absence of order-sheets of the Trial Court. It is fairly conceded by Shri Govind Puri that he has not filed the complete order-sheets of the Trial Court to show that the appellant or any other co-accused person is not responsible for the delay.
22. The Supreme Court in the case of Anil Kumar Yadav Vs. State (NCT of Delhi) and Another reported in (2018) 12 SCC 129 59 THE HIGH COURT OF MADHYA PRADESH CRA No.5491/2021 (BALRAM VS. STATE OF M.P. & ANR.) has held that the custody period of one year in a case of murder cannot be said to be an excessive one.
23. Accordingly, this Court is of the considered opinion that no case is made out for taking a contrary view in the matter. However, liberty is granted to the appellant to revive the prayer alongwith the complete order-sheets of the Trial Court to indicate that the appellant or any other co-accused persons are not responsible for the delay.
24. Accordingly, the appeal fails and is hereby dismissed.
(G.S. Ahluwalia)
Pj'S/- Judge
PRINCEE BARAIYA
2021.12.06
20:05:59 +05'30'