Delhi High Court
H.K.L. Bhagat vs State on 20 May, 1996
JUDGMENT Jaspal Singh, J.
1. Lord Acton in his Essays On Freedom (1948) said that the "most certain test by which we judge whether a country is really free is the amount of security enjoyed by Minorities". We, as a nation, failed the test in November 1984 when thousands of innocent members of a minority community were subjected to murder, loot and arson. The petitioner H. K. L. Bhagat is alleged to be one of those persons involved in the butchery. He is facing trial in two of such cases pending before an Additional Sessions Judge. His grievance is that the learned Judge is biased against the politicians in general and against him in particular and that driven by that bias he has not only been passing "unsavoury" remarks against him but has also been importing material not relied upon by either side. It is also his grievance that he is not being shown any accommodation and that the learned Judge has been rushing through the cases in undue haste giving thereby an impression that he is in a great hurry to somehow convict him.
2. In support of the first contention my attention has been drawn to the following extracts taken from two orders. Whereas the first five are from an order passed on January 24, 1996, the remaining come from an order of February 19, 1996.
Order of January 24, 1996. (i) "..... it is also suggested that name of Shri Bhagat has been mentioned only because of political reasons. In fact the name of Shri Bhagat had been mentioned in several affidavits in case FIR No. 318/84 of P. S. Gandhi Nagar while forwarding the challan to the Court Shri Bhagat was not named as an accused despite the fact that the witness in that case had mentioned the name of Shri Bhagat as one of the accused and also in her affidavit she had named Shri Bhagat as an accused ..... The prosecution has sent a letter to the Ministry of Home (it is so mentioned in the case diary of the police) seeking sanction for prosecution of Shri Bhagat as Shri Bhagat was at that time an MP and Central Minister but no reply of this letter had been received ....."
(ii) "The witness Smt. Ajay Kaur in her statement which was recorded in the Court she again named Shri Bhagat as an accused however despite the fact that Shri Bhagat was not holding any office at that time he was not summoned by the Court and perhaps no request was made by the prosecution for summoning him. The appeal in the above case against the judgment delivered by my predecessor is pending before the Hon'ble High Court. If the accused has not so far been called to face the trial in any riot case it is not because of the witnesses, it is not because of any fault of any witness but it may be on account of wilful default on the part of the investigation agency ....."
(iii) "..... and when a political leader is sought to be arrested in some crime he along with his supporters creates a riot like situation, a chief criminal gets a dreaded criminal released on parole and shares political platform with him. Another Chief Minister gives pardon to a mass killer and she becomes a hero of the media, a central Minister plays host to hit man of Dawood and gives a status of official guest in a state guest house. Corrupt and criminals occupy the prime places in the society and peaceful majority of ordinary citizenry just gives in ....."
(iv) "..... I consider that politicians suffer from colour blindness. They cannot see any other colour in the things except the political colour ....."
(v) "..... It is normally seen that the politicians who are strong enough to contest elections, to become Ministers, to work day in and day out on public offices, become infirm and sick when they have to face trials."
(vi) Order of February 19, 1996 "..... instead of landing in jail, he landed in hospital on complaint of suffering from different ailments"
"....... He had remained in jail for a day or so out of the total judicial custody of about 4 weeks ..... If Shri Bhagat remained in judicial custody he may always be kept in hospitals lest another Rajan Pillay may not be enacted and the old age of Mr. Bhagat and the list of his old ailments, would always stand in the way of jail administration and the hospital authorities from producing him in the Court ...."
"..... it seems we are living not in an era of democracy but in an era of Bhagat-o-cracy where the police could not reconcile to the sending to jail of Shri Bhagat with powers of the yesteryears and Bhagat's powers of the present day ....."
As regards the second contention, my attention has been drawn to the fact that in one of the orders passed by the learned Judge he has referred to Ranganath Misra Commission and Jain. Aggarwal Committee Reports which, it is alleged, were not referred to or relied upon by either side.
3. In support of the last contention my attention has been drawn to the following :
(1) Bail was refused to the petitioner at the first instance though the co-accused Dr. Budh Prakash Kashyap alias Lamboo Doctor was enlarged on bail without "any fuss".
(2) Copies of all the documents were not supplied. The petitioner had to move applications for the purpose and that on the last of such applications the petitioner was burdened with Rs. 500/- as costs.
(3) The learned Judge refused to grant adjournments even on account of the illness of the petitioner or his counsel.
(4) Charges have been framed without affording opportunity to the counsel for the petitioner to address arguments.
4. I feel that before dealing with what has been highlighted a glance at the background is called for.
5. The petitioner was for some time a member of Parliament and a Minister in the Union Cabinet. Despite old age and alleged failing health he is still in the thick of Delhi Politics. It so happened that in Sessions Case No. 51 of 1995 State v. Ramji Lal which related to a November 1984 riot victim, one Satnami Bai was examined as PW 3. In her examination-in-chief she alleged that the petitioner was leading the mob which had killed her husband. This led the prosecution to move an application under Section 319 of the Code of Criminal Procedure and the learned Judge to summon the petitioner and Dr. Budh Prakash who too had been named. Dr. Budh Prakash who was already an accused in another case and who was present in Court on the date of order was taken into custody. The petitioner, on the other hand challenged the order passed under section 319 of the Code. This Court, however, confirmed the order Significantly, in the petition moved before the High Court also the petitioner had alleged that the learned trial Judge was biased. Anyhow, to continue with the narration, the petitioner moved an application for bail. It was dismissed on January 24, 1996. The first five extracts reproduced above are from the order dismissing the bail application of the petitioner.
6. It may be noticed that in the application for bail moved by the petitioner he had pointedly referred to Ranganath Misra Commission and to "various other Committees constituted to investigate the riot related matters."
7. What happened on the dismissal of the bail application makes an unfortunate reading. I would not like to delineate on it in detail. Suffice to say that instead of spending his remand period in jail, the petitioner saw himself most of the time in the comfort of hospitals proving true thereby what years before had been said by Krishna Iyer J. about the poor rotting in jails while the rich (and powerful ?) managing to remain in hospitals. Anyhow, to cut short, yet another application was moved for bail on which part arguments were heard on February 15, 1996. I will refer to the bail application a little later. What needs to be noticed is the following order passed on that date :
"The scrutiny of papers has been done by Mr. Ashish Bhagat, counsel for Mr. Bhagat. He states that some copies are not legible. He shall file a list of documents of which he wants fresh copies by Monday."
On February 19, 1996 bail was allowed to the petitioner. Extracts (vi) to (viii) reproduced above are from the said order of bail. However, what further needs to be noticed is that on that day the petitioner had moved an application for supply of legible copies on which the prosecution was directed to provide legible copies. The case was thereafter adjourned to March 4, 1996 for arguments on charge. However, arguments on charge could not be heard due to two applications moved by the petitioner one of which happened to be for supply of some more documents. Both the applications were disposed of and March 13, 1996 was fixed for supply of further copies. On March 13, 1996 the petitioner moved yet another application for supply of more documents. The documents asked for were copies of statements made by Satnami Bai under Section 161 of the Code of Criminal Procedure in different cases. The application was dismissed as not tenable. However, since the petitioner had also asked for supply of reports by Ranganath Misra Commission and Jain Aggarwal Committee, an order to supply the same was passed. The case was then adjourned to March 22, 1996 for arguments on charge. On March 22 counsel for petitioner was not present. The case was consequently adjourned to April 4 for arguments on charge. On 4th April the petitioner moved yet another application for supply of additional documents. On account of that application the case was adjourned to April 8 when the application was disposed of. On that day that the petitioner's counsel finally felt satisfied with the documents. Anyhow, the case had to be adjourned and as such April 15 was fixed for argument on charge. On that day too an application was moved by the petitioner for supply of further documents. While dismissing the application by a reasoned order, the learned Judge observed :
"Case is fixed for arguments on charge third time and every time counsel comes with a new application for supplying of documents. It is clearly delaying tactics being adopted by the accused. On the last hearing counsel was specifically asked if any other document is required to be given and counsel made a statement that no other document was required to be given ....."
The arguments be addressed. Counsel states he would not address the arguments today although the case is fixed for arguments and seeks time. The adjournment is granted subject to cost of Rs. 500/- to be paid to the legal aid and receipt to be produced in the Court."
The case was then adjourned to 18-4-96. On that day too arguments were not addressed. The plea taken was that the counsel for the petitioner was unwell. The learned trial Judge adjourned the case for arguments on charge for April 19, 1996 by an order relevant portion of which runs as under :
"Case is being fixed for arguments on charge for fourth hearing. On every hearing one or the other application is being made to delay the trial of the case. On last hearing the counsel refused to argue on charge on the ground that he would make some miscellaneous application before Hon'ble High Court. Case was fixed for arguments. Today an application has been made about the illness of the counsel stating that he had suffered heart stroke. On last hearing the adjournment was granted conditionally that the amount of Rs. 300/- will he deposited with legal aid and receipt shall be produced before the Court. That condition has not been complied with ....."
8. On April 19, the petitioner again sought adjournment on the ground of illness of his counsel Sh. Ashish Bhagat. The learned Judge noticed that besides Shri Ashish Bhagat some other counsel including Sh. I. U. Khan had been appearing for the petitioner and that Sh. Ashish Bhagat had only been associating with Sh. Khan. Feeling that the petitioner was delaying "the proceedings as far as possible", further adjournment was refused and the State was heard on the point of charge. The learned Judge records :
"Sh. H. K. L. Bhagat states that he protests the hearing of arguments in absence of his advocate. It has been made clear to him that his advocate is free to address the arguments. H. K. L. Bhagat is himself an advocate. The court can give an opportunity of addressing the arguments. Court cannot compell the unwilling advocates to argue.
What followed is also not without significance. Proverbially speaking, even the ink of the said order had not yet dried when the petitioner moved two more applications. One for adjournment and the other under section 311 of the Code of Criminal Procedure for permission to cross-examine Satnami Bai before charge. The first was dismissed. The second was held not maintainable in view of the order of this Court in the revision petition filed by the petitioner against order of his summoning and to which reference has already been made by me above. Since the petitioner refused to address arguments, April 20 was fixed for orders.
9. One thing more before I reach April 20, 1996. The two applications referred to above and which were moved on April 19 were both typed. The application for adjournment runs into four typed pages while the second application under S. 311 runs into three typed pages. I am mentioning it as I shall be reverting to it a little later.
10. On April 20, 1994 (1996) the petitioner through Shri Ashish Bhagat moved an application for stay of the proceedings on the ground that an application for transfer had been moved in the Court of Sessions as the petitioner did not expect "impartial and fair trial" and as he had "all reasonable apprehensions" that the Court had "made up its mind" to convict him. By a detailed order of the same day the learned trial Judge refused to stay the proceedings.
11. Three more things need to be noticed with regard to proceedings of April 20, 1996; (1) Shri Ashish Bhagat filed his power of attorney on that day, (ii) Shri Ashish Bhagat was asked to address arguments on charge but he refused. The Court thereupon observed : "Sh. Ashish Bhagat present in the Court and if he intends to address the arguments he is free to argue. Shri Bhagat (Ashish) states that he is present in the Court since morning till 12.30 only for the purpose of this application for adjournment and he is still unwell. However, he is very well for arguing this application".
And (iii) after rejection of the application, the petitioner refused to participate in the proceedings. This is what the learned Judge records :
"An application for adjournment is being made on behalf of Sh. Bhagat which has been rejected, vide separate order. Sh. Bhagat who is present in Court states that he is not going to participate in the proceedings being carried by the Court. He states that he would not sign any statement and would protest against continuation of proceedings by this court ..."
Charge was framed on April 20 and the case was adjourned to May 9 for arguments on application by the State for amendment of the charge.
On May 4 the present petition for transfer was ready. It was filed on May 7 and taken up on May 8.
On May 9 when the case was taken up by the learned trial Judge neither the petitioner was present nor his counsel and as such non-bail able warrants were ordered to be issued. Soon after the passing of that order appeared the counsel and moved an application for petitioner's exemption on the ground that petitioner was back again in the hospital. The learned Judge promptly ordered that the warrants be not issued. The case was taken up on May 10. The petitioner, however, was still in hospital. The matter was thus adjourned to May 13 and then to May 20.
12. On May 16, I proceeded to hear arguments on the present petition.
13. Time now to deal with the contentions raised. Undoubtedly the learned Judge has said a few things about the politicians of the day. These remarks are already the subject matter of a petition pending before a Division Bench. Under the circumstances I would rather prefer not to say anything more than this that it is the petitioner who has given political colour to the trial. In this respect his application for bail and the arguments advanced in support may be perused. It may also be said that stray passages torn out of context do invariably provide a distorted picture. Anyhow, Judges are expected not to let slip by their sang fiord even under stress and deliberate provocation. The donning of the gown demands this discipline. In the words of Justice Frankfurter : "A Court is not a forum for political debates". Nor, if I may add, is it a forum for moral guidance or sermons. Cicero once said of his friend Sulpicious Refus that he treated law "with the hand and mind of an artist". Every Judge is expected to treat it similarly. But then, all said and done, the outpourings of the learned trial Judge, if I may say so, do not seem to have led him away from the path of justice.
14. The learned Judge has undoubtedly referred to the affidavits filed in another case against the petitioner. Admittedly he has also referred to the reports of the Ranganath Misra Commission and of Justice Jain and Banerjee Committee. I am told that reference to the affidavits was in response to the arguments advanced on behalf of the petitioner in support of his bail application and that the information came from none other than the Special Prosecutor during the proceedings. As regards the reports of the Ranganath Misra Commission and the Jain Banerjee Committee, it was the petitioner himself who had referred them in his bail application. It was asserted by Mr. S. K. Aggarwal that the reports were referred to in extenso during arguments on the bail application. Surely then, the learned trial Judge was not introducing something extraneous to the proceedings.
15. The order of summoning the petitioner under Section 319 of the Code was the vindication of what David says : Inde Datae leges, Ne Firmer Omnia Posset Laws are made that the stronger might not in all things have his sway. However, unfortunately the petitioner appears to be still not reconciled to the situation. As already noticed, even in the petition to this Court against the said order, the petitioner made remarks against the learned trial Judge. During arguments on the bail application the learned trial Judge was warned by him that "the Court should take conscious decision in the case and it will have serious repercussions in the days to come." The petitioner's arguments invited an observation from the Court that "the petitioner was giving a political colour to the trial."
16. I have given above a sufficiently detailed resume of the proceedings. The record shows that the petitioner has been taking the proceedings in a cavalier fashion and has been guilty of adopting dilatory tactics. The way he moved one application after the other for supply of documents and that too only on the dates fixed for hearing arguments on charge, speaks for itself. What prevented the petitioner from moving one single application seeking at one go all the documents ? And, then what prevented him from moving the applications much before the actual dates fixed for arguments on charge ? Why did the petitioner not say on February 15, 1996, itself that the copies of all the documents had not been supplied ? The only protest lodged on that day was that some of the copies supplied are not legible. In any case, what were the documents asked for ? The documents asked for were statements of Satnami Bai recorded under Section 161 of the Code of Criminal Procedure pertaining to some other cases. Significantly none of those statements were relied upon by the prosecution. And, what were the other documents ? They were the records of Ranganath Misra Commission and Jain Banerjee Commission. Let us recollect that it was the petitioner who had relied upon those reports in his bail matter and not the prosecution. What is of greater significance is that on April 8, the petitioner had finally felt satisfied with the documents supplied and yet on the very next date he came out with another application for supply of further documents. What does one gather from all this ?
17. Something which I am constrained to call as most unfortunate followed the dismissal of petitioner's application on April 15. It was a date fixed for arguments on charge and when the learned trial Judge asked petitioner's counsel to address arguments, the learned counsel refused to and that too without any rhyme or reason. What followed on subsequent dates has been delineated by me above. I need say no more than this that it does not do any credit to the petitioner.
18. Though I have referred to above the proceedings of April 19 in sufficient detail, I am constrained to highlight a point or two. It too was a, date fixed for arguments on charge. First the petitioner made an effort to get an adjournment on the ground of his counsel's illness. When he found that he was not succeeding, he took out two typed applications and placed them before the learned trial Judge. One ran into four typed pages and the other into three. What does it show ? lt shows that the petitioner was already having those applications typed and ready and up his sleeves. If, so why did he not move them before April 19 ? In any case why did he not move them at the very first opportunity on April 19 ? One of those applications was under Section 311 of the Code of Criminal Procedure. It could easily be moved before April 19. Why was it thought fit to move it only on April 19, and that too after refusal to grant adjournment ? Does it not lead to any impression that the petitioner was bent upon somehow to delay the hearing of arguments on charge ?
19. On April 20, when counsel for the petitioner was asked to address arguments on the point of charge he refused to, taking the plea that he was unwell though he was too willing to address arguments on petitioner's application for stay of proceedings. As if all this was not enough, the petitioner lost no time in declaring that he was "not going to participate in the proceedings", that "he would not sign the statement" and "would protest against continuation of proceedings."
20. The petitioner says that the learned trial Judge is biased and is out to convict him. In support reference has been made to Amar Singh v. Sadhu Singh 26 Cri LJ 853 : (AIR 1925 Lahore 361); Mohd Abdul Raoof v. State of Hyderabad, AIR 1951 Hyderabad 50 : (52 Cri LJ 273); Manak Lal v. Dr. Prem Chand Singhvi, . There cannot possibly be any quarrel with the proposition of law laid down in these authorities. But then each case has to be looked into keeping in view its own facts. No pecuniary interest is alleged here. What is borne out from the record is that there exists no reasonable ground for assuming the possibility of a bias of course, bias is always a question of fact to be decided in each case. The record shows that despite his having earlier rejected the bail application, the learned Judge did not hesitate to enlarge the petitioner on bail. Though some of the documents asked for had not even been relied upon by the prosecution he promptly ordered for supply of those documents also. He even granted adjournments to accommodate the petitioner. The way he repeatedly asked the petitioner and his counsel to address arguments on charge speaks of his anxiety to deliver justice.
21. I am sorry to say that it is the petitioner who has not covered himself with glory. It can be no part of a gentleman's trait to treat judicial proceedings in a cavalier fashion and to resort to threats of "serious repercussions in the days to come" (See : Order of January 24, 1996) and non-participation in the proceedings (See order of April 20, 1996.) or to adopt dilatory tactics and then cry wolf.
22. For the reasons recorded above, I find no ground to allow the petition. The same stands dismissed.
23. This, however, is not the end of the matter. As already noticed above, despite opportunity the petitioner did not address arguments on the point of charge and consequently charge was framed. The State, it appears, has moved an application for its amendment. Since, the learned trial Judge shall have to hear arguments on the same and pass an appropriate order thereon, I direct, in exercise of powers under Section 482 of the Code of Criminal Procedure, that let the learned trial Judge hear the parties afresh on the point of charge. In other words let the petitioner have yet another opportunity. "To be perfectly just" says Addison, "is an attribute of the divine nature; to be so to the utmost of our abilities is the glory of man". Let the trial Judge attain it.
24. The learned trial Judge shall now fix a date for hearing arguments on charge. I hope on the day so fixed the petitioner will not be in hospital, the lawyers will not be on strike and the Judge will not be on leave.
25. Petition dismissed.