Delhi High Court
Court On Its Own Motion vs State And Ors. on 29 November, 2007
Author: Madan B. Lokur
Bench: Manmohan Sarin, Madan B. Lokur
JUDGMENT Madan B. Lokur, J.
1. The application under consideration, styled as an application for clarification of the order dated 4th October, 2007 arises in circumstances that may only be described as unfortunate. The prayers in the application are as follows:
(a) clarify/review the order passed by it [this Court] on 4.10.2007
(b) in view of the difference of opinion between Hon'ble Mr. Justice Manmohan Sarin and Hon'ble Mr. Justice Sudarshan Kumar Mishra, the matter be ordered to be placed before the Third Judge to be nominated by the Hon'ble Chief Justice;
(c) pass any other order/orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
2. At the outset, it is necessary to make it clear that on 4th October, 2007 three orders were passed by this Court 'the first by one of us (Manmohan Sarin, J' hereinafter referred to as the first order), the second by Hon'ble Mr. Justice Sudershan Kumar Misra (hereinafter referred to as the second order) and the third by the Bench comprising both the learned judges (hereinafter referred to as the third order). On the basis of the contents of the application, the contentions urged as well as nothing having been said to the contrary, it is quite clear that the clarification or review of the order prayed for is the first order passed by Manmohan Sarin, J and we are proceeding on that basis.
3. Briefly, the circumstances in which the first order dated 4th October, 2007 came to be passed are that Mr. R.K. Anand, Senior Advocate and a noticee in criminal contempt proceedings pending before us, moved an application (before the Bench consisting of Manmohan Sarin, J and Sudershan Kumar Misra, J) in which it was prayed that Sarin, J recuse himself from hearing the contempt case. It was, inter alia, alleged by Mr. R.K. Anand that he is not likely to get justice from Sarin, J for a variety of reasons. In a rather detailed order, Sarin, J dealt with all those reasons and held that 'There is no factual basis or any foundation for nurturing any apprehension of bias, leave aside any reasonable basis therefore, which is altogether missing.' Sarin, J then declined the prayer for recusal and dismissed the application. As noted above, it is this order of which Mr. R.K. Anand seeks a review or clarification.
4. Misra, J passed the second order and it is necessary to quote it in full since it resulted in considerable discussion. The second order reads as follows:
With deference to the decision of my very learned and far more experienced brother, which I have had the privilege of reading in draft; and with respect, I regret that I find myself unable to concur. I do so with great diffidence in view of the fact that the nature of the controversy before us pertains to my learned brother alone. It revolves around a number of factual assertions, which can only be known to my learned brother personally, and which must necessarily be examined in the light of the law on the subject. Therefore, I consider it inappropriate to express any opinion in the matter, one way or the other.
5. In view of the second order, Mr. R.K. Anand has made the second prayer in the application under consideration. In general terms, the submission being that there is a difference of opinion between the two learned judges regarding the disposal of the application for recusal and, therefore, the difference of opinion should be resolved by a third learned judge.
6. The third order passed on 4th October, 2007 (by the Bench) really provides a cue to the controversy and has, in our opinion, a vital impact on the second prayer made in the application under consideration. It is, therefore, necessary to quote the third order in full. This reads as follows:
Replies have been filed on behalf of Mr. R.K. Anand, Mr. I.U. Khan and Mr. Sri Bhagwan Sharma. The same are taken on record. Copies have been received by the amices Curiae today, who may study the same.
Following the note given by Sudershan Kumar Misra, J., he has now expressed his disinclination to hear the matter any further, list for directions on 11th October, 2007.
Manmohan Sarin, J Sukershan K. Misra, J
7. As a result of the third order dated 4th October, 2007, Hon'ble the Chief Justice constituted the present Bench to further hear the matter. We heard learned Counsel for Mr. R.K. Anand and the learned amices Curiae on 12th and 14th October, 2007 when we reserved orders.
The first issue: constitution of the Bench
8. The first issue canvassed before us was that since the application was one for review of the order dated 4th October, 2007 it should be heard by the Bench consisting of Sarin and Misra, JJ. It was submitted that under these circumstances, it would be inappropriate for this Bench to deal with the application. It was suggested (as a possibility) that if both the learned judges once again sit together as a Bench, there may be a change of opinion (by either of them) resulting in a total reversal of fortunes. It was submitted that quite obviously, unless there is a very good reason, the same learned judge or judges who render a decision must hear the application seeking review of that decision. It was contended that in the present situation, no such good reason exists in as much as Misra, J is very much a part of this Court and available to hear the review application. That being so, the application must be placed before a Bench of Sarin and Misra, JJ and Hon'ble the Chief Justice erroneously constituted another Bench, excluding Misra, J from the newly constituted Bench to hear the application under consideration.
9. The contention urged on behalf of the Applicant is misconceived, in as much as it overlooks a very crucial fact. The application filed by Mr. R.K. Anand is for clarification or review of the first order passed by Sarin, J. 'it is not for review of the order passed by Misra, J. Indeed, the Applicant has no grievance against the second order or the third order. This is clear from a reading of the application itself, which extensively quotes from the first order and criticizes it. There is not a whisper that the second order is factually erroneous or otherwise requires to be reviewed. Nor is there anything to suggest that the third order requires a review. Consequently, as long as the author of the first order' Sarin, J. 'hears the review application, that is good enough. In the present situation, he is sitting as a member of the Bench hearing the review application and there can be no objection to that. No case law or any other precedent or academic treatise has been shown by learned Counsel to suggest that as a hard and fast rule, Misra, J ought to be a member of the Bench hearing the application for review of the first order. Consequently, there is no reason to list the application under consideration before the Bench of Sarin and Misra, JJ.'
10. Of course, learned Counsel is right in contending that unless there is some supervening circumstance, Misra, J ought to be a member of the Bench hearing the application under consideration. But, this is where another crucial fact is overlooked by learned Counsel, which is that Misra, J has expressed (in no uncertain terms) in the third order his 'disinclination to hear the matter any further'.
11. One of the issues debated was what is meant by the disinclination expressed by Misra, J. Does his disinclination have an all-encompassing meaning that he would not like to have anything further to do with the matter, signifying that he has completely washed his hands off the matter 'Or, does it have a limited meaning that henceforth he would not like to participate in any proceedings in the matter, leaving open his participation in relation to earlier proceedings, such as a review or clarification of earlier orders passed by the Bench of which he was a member' According to learned Counsel for the Applicant, the third order has a limited application and Misra, J has not washed his hands off the case completely. Alternatively, it was submitted that the interpretation of the third order is best left to be decided by a Bench consisting of Sarin and Misra, JJ.
12. As far as the alternative contention is concerned, it merits rejection for the simple reason that the Applicant has not requested for a clarification of the third order and so it remains for us to interpret the third order as best as we can. We have, therefore, necessarily to proceed on the basis that even according to the Applicant, the third order needs to be meaningfully interpreted and nothing more.
13. In our opinion, the third order must be given an all-encompassing meaning, particularly when it is read in sequence with the first and second order. But, before doing that, it would be necessary to understand the second order.
The second issue: interpreting the second order
14. What actually does the second order say? It would be necessary to comprehend the second order not only for dealing with the contention of learned Counsel for the Applicant but also for considering the second prayer made by the Applicant. It may be mentioned, en passant, that the major portion of the proceedings were occupied in trying to appreciate the second order and that is why it is necessary to deal with it in some detail.
15. It was submitted by learned Counsel for the Applicant that in the second order Misra, J has expressed his inability to concur with the opinion expressed by Sarin, J in the draft order circulated by him to Misra, J. Learned Counsel submitted that 'concur' means 'to agree' and he cited Black's Law Dictionary (7th edition) in this regard. There is no difficulty in accepting that 'concur' means 'to agree'. But Misra, J has given no reason why he does not concur with Sarin, J. On the contrary, he says a little later in his order that in the nature of the controversy, the factual assertions made by Mr. R.K. Anand would have to be examined in the light of the law on the subject. Having said this, Misra, J considered it inappropriate to express any opinion in the matter, one way or the other.
16. On a reading of the second order as a whole, it appears that Misra, J merely did some loud thinking that he did not agree with the opinion of Sarin, J without giving a reasoned opinion on the factual assertions. Why Misra, J adopted this course is because he felt that the factual assertions were in the personal knowledge of Sarin, J only. Misra, J also chose not to express any opinion or even examine the law on the subject. Since Misra, J did not give any definitive or conclusive opinion either on the facts or on the law, his inability to concur with Sarin, J was, therefore, only an observation or a comment neither supported by an analysis of the facts nor the law. The observation or comment does not have any binding value or cast any obligation on anybody - the result being that only the opinion of Sarin, J has any force in law. There are several reasons for saying so.
17. A binding decision or expression of opinion is conveyed either in a judgment or in an order or direction. This is perhaps more than obvious, but if any authority is required for this, it is to be found both in the Code of Civil Procedure (CPC) and the Criminal Procedure Code (CrPC).
18. In so far as the CPC is concerned, one needs only go through Section 2(9) read with Order XX Rules 4 and 5, Order XLI Rule 31 and Order XLII Rule 32 to realize that a judgment must contain reasons for the decision arrived at. The position in the CrPC is no different. Under the CrPC, a judgment is explained in Section 354 thereof and this may be read along with Sections 264 and 387.
19. All the above provisions make it abundantly clear that in the absence of reasons, neither procedural statute recognizes a judgment as having binding force if it is not supported by reasons. It is nobody's case that the second order is supported by reasons. That being so, it is not a judgment as anyone versed in the law would understand it.
20. The requirement of giving reasons for sustaining a judgment was laid down by the Supreme Court almost forty years ago when it was said in Swaran Lata Ghosh v. H.K. Banerjee :
A judicial determination of a disputed claim where substantial questions of law or fact arise is satisfactorily reached, only if it be supported by the most cogent reasons that suggest themselves to the Judge a mere order deciding the matter in dispute not supported by reasons is no judgment at all.
21. More recently, the requirement of giving reasons in support of a judgment was reiterated in Union of India v. Essel Mining & Industries Ltd. when it was said:
It is not the number of pages in a judgment which is relevant. It is on the other hand, the sufficiency of reasons indicated to justify the conclusions.
22. Similarly, in Sanjay Singh v. U.P. Public Service Commission it was said:
Broadly speaking, every judgment of superior courts has three segments, namely, (i) the facts and the point at issue; (ii) the reasons for the decision; and (iii) the final order containing the decision.
23. Under no circumstances, therefore, can the second order be said to be a judgment particularly since it is not supported by any reasons. Can it be described as a 'decision' or a 'direction' or an 'order'? The answer to this must also be in the negative since no conclusion has been stated in as much as it has not been held that either the application is dismissed or it is allowed. That this is not a matter of semantics is clear from Sanjay Singh wherein a distinction is made between the reasons for a judgment and the relief given the reasons given may not result in a particular relief. It is said, The reasons for the decision or the ratio decidendi is not the final order containing the decision. In fact, in a judgment of this Court, though the ratio decidendi may point to a particular result, the decision (final order relating to relief) may be different and not a natural consequence of the ratio decidendi of the judgment. This may happen either on account of any subsequent event or the need to mould the relief to do complete justice in the matter.
24. Therefore, even if it could be said by some stretch of imagination that Misra, J gave some reasons in the second order, he certainly did not pass any final order or give any direction or render any decision, rendering the reasons meaningless and without any conclusion.
25. Learned Counsel for the Applicant relied on State of U.P. v. Jeet S. Bisht wherein a different sort of situation had arisen. The contention of learned Counsel was that even where there is a concurrence of views, but a difference in the reasons for the conclusion, the matter may be referred to a third judge for resolution. In that case, both the Hon'ble Judges of the Supreme Court came to the same conclusion, but for different reasons. The Hon'ble Judges then referred the matter to Hon'ble the Chief Justice of India for nominating another Bench. This is not the issue that arises in the present case, but it nevertheless underscores the complexities involved in deciding cases where there is a difference of views. However, as already mentioned, such an issue does not arise in the present case since Misra, J has neither passed a final order nor does the second order contain any reasons.
26. The second order, therefore, is neither a judgment, nor an order, nor a decision, nor a direction, nor does it contain any reasons. In fact, even Misra, J does not classify the second order as a judgment, decision, order or direction. In the third order, the Bench (of which Misra, J was a member) describes the second order as a 'note' (Following the note given by Sudershan Kumar Misra, J...).
27. This is not to say that every 'order', 'direction' or 'decision' given by a superior court must be supported by reasons ' not at all. There are interlocutory directions, orders or decisions given by superior courts day in and day out. They are not always supported by reasons but that does not detract from their binding force. All such orders or directions or decisions mandate the performance of some duty or to refrain from doing something. The second order, however, as already mentioned does not conclude anything in as much as it does not dispose of the application or even postpone its consideration. The first sentence of the second order, therefore, cannot be read as anything other than an observation or a comment made by Misra, J without having any conclusive or binding result.
28. Learned Counsel for the Applicant referred to In re Sham Lal (1978) 2 SCC 479 to contend that it is not always necessary for a Court to give reasons in support of its decision. The decision cited is not at all apposite. In the first place, the decision was in the context of suo motu proceedings initiated by the Supreme Court, and that too in its contempt jurisdiction. Moreover, the Supreme Court decided to drop the proceedings and not proceed further in the matter. The Supreme Court did mention in its order that it had taken all the pros and cons into consideration for initiating contempt proceedings but found that it is not a fit case for doing so. The contempt jurisdiction of the Supreme Court is a special jurisdiction and the general principles advocated by learned Counsel would surely not be applicable, given the full facts and circumstances of the case. It would certainly have been a different matter if the Supreme Court had decided to punish the alleged contemnor, but that was not so.
29. It is possible to argue (though we do not give any final conclusion on it, since it is not necessary to do so) that Misra, J was entitled to take a view on the application for recusal even if 'allegations' were made only against Sarin, J. This is because it is the Court that speaks, not an individual judge. This appears to be so from In re Arundhati Roy (2002) 3 SCC 343 where a request was made that one of the learned judges recuse himself from the case and that request was turned down by the Bench, not by the individual judge. Similarly, in P.K. Ghosh v. J.G. Rajput the Supreme Court held that one of the learned judges constituting the Bench ought to have recused himself from hearing the matter (on merits) but did not find fault in the Bench per se hearing the matter even though the 'allegations' pertained only to one learned Judge.
30. Perhaps a clearer exposition on this issue is to be found in Election Commission of India v. Dr. Subramaniam Swamy wherein the Supreme Court suggested the procedure that ought to be followed in a situation concerning recusal. This is what the Supreme Court said:
We are, therefore, of the opinion that the proper course to follow is that the Chief Election Commissioner should call a meeting of the Election Commission to adjudicate on the issue of disqualification of Ms J. Jayalalitha on the grounds alleged by Dr Swamy. After calling the meeting he should act as the Chairman but then he may recuse himself by announcing that he would not participate in the formation of opinion. If the two Election Commissioners reach a unanimous opinion, the Chief Election Commissioner will have the opinion communicated to the Governor. If the two Election Commissioners do not reach a unanimous decision in the matter of expressing their opinion on the issue referred to the Election Commission, it would be necessary for the Chief Election Commissioner to express his opinion on the doctrine of necessity. We think that in the special circumstances of this case this course of action would be the most appropriate one to follow because if the two Election Commissioners do not agree, we have no doubt that the doctrine of necessity would compel the Chief Election Commissioner to express his views so that the majority opinion could be communicated to the Governor to enable him to take a decision in accordance therewith as required by Article 192(1) of the Constitution.
31. From the above, it follows that there were various combinations available to the Bench consisting of Sarin and Misra, JJ. They could have (as a Bench) taken a unanimous decision on the application for recusal; both the learned judges could have taken a decision and disagreed with each other; Sarin, J could have left it to Misra, J to take a decision for the Bench after abstaining himself; Misra, J could have abstained from taking a decision and left it to Sarin, J to decide for the Bench. As it happens, the fourth alternative was taken - Misra, J heard the learned Counsel but chose not to participate in the formation of the decision or to express his opinion, apart from the comment that he made. This appears to be perfectly legal and valid and the decision so rendered by Sarin, J (effectively, in the circumstances, for the Bench) would be the appropriate decision to adopt as the opinion of the Bench.
32. This view is supported by Guardians of Poor v. Guardians of Poor (1889) 24 QBD 117 wherein it was said, We know that each of them considers the matter separately, and then they consider the matter jointly, interchanging their judgment, so that every one of them has seen the judgments of others. If they mean to differ in their view, they say so openly when they come to deliver their judgments and if they do not do this, it must be taken that each of them agrees with the judgments of the others.
33. Similarly, in Overseers of Manchester v. Guardians of Ormskrik Union (1890) 24 QBD 678 it was said, Where in the House of Lords one of the learned Lords gives an elaborate explanation of the meaning of a statute, and some of the other learned Lords present concur in the explanation, and none express their dissent from it, it must be taken that all of them agreed in it.
34. It also appears that the latter part of the second order makes it clear that Misra, J has chosen not to enter into any controversy on the merits of the allegations made against Sarin, J on facts or to analyze the law on the subject. Perhaps, the learned judge felt some embarrassment in doing so, but in any event, Misra, J refrained from expressing any opinion in the matter. Quite obviously, therefore, what was said by Misra, J in the earlier portion of the second order was not an expression of opinion 'otherwise it would appear as if the earlier portion and the latter portion of the second order contradict each other' a result that cannot be countenanced.
35. It must follow from this discussion that Misra, J did not express any definitive or binding opinion on the controversy in the beginning of the second order as contended by learned Counsel for the Applicant; Misra, J did not deliver any judgment or pass any order or direction on the application for recusal. This is fortified by what he has unequivocally said that he considers it 'inappropriate to express any opinion in the matter, one way or the other.'
36. Even if it is assumed that Guardians of Poor and Overseers of Manchester do not lay down the correct law, Misra, J did right by not expressing any opinion on the 'allegations' made against Sarin, J. In Jewell Ridge Coal Corporation v. Local No. 6167, United Mine Workers of America, 325 US 897 (1945) it was held that a complaint as to the qualification of a justice of the Supreme Court to take part in the decision of a cause 'cannot properly be addressed to the Court as a whole'? and it is the responsibility of each justice to determine for himself the propriety of withdrawing from a case.
37. Similarly, an application for the recusal of Justice Scalia from hearing Cheney, Vice President of the United States v. United States District Court for the District of Columbia 542 US 367 (2004) was heard and decided, not by the Court, but by Justice Scalia only. In Laird v. Tatum 409 US 824 (1972) Justice Rehnquist alone decided an application for his recusal from a case. He stated the practice followed in the United States Supreme Court in Hanrahan v. Hampton 446 US 1301 (1980) in the following words:
Plaintiffs-respondents and their counsel in these cases have moved that I 'be recused from the proceedings in this case' for the reasons stated in their 14-page motion and their five Appendices filed with the Clerk of this Court on April 3, 1980. The motion is opposed by the state - defendant petitioners in the action. Since generally the Court as an institution leaves such motions, even though they be addressed to it, to the decision of the individual Justices to whom they refer, see Jewell Ridge Coal Corp. v. Mine Workers 325 U.S. 897 (1945) (denial of petition for rehearing) (Jackson, J., concurring), I shall treat the motion as addressed to me individually. I have considered the motion, the Appendices, the response of the state defendants, 28 U.S.C. 455 (1976 ed. and Supp. II), and the current American Bar Association Code of Judicial Conduct, and the motion is accordingly Denied.
38. Therefore, whichever way one looks at it, the second order has no binding force, it does not express any opinion and, therefore, it is difficult to accept the contention of learned Counsel for the Applicant that there is a difference of opinion between Sarin, J and Misra, J 'in fact, Misra, J has not expressed any opinion. Consequently, there is no need to request Hon'ble the Chief Justice to send the case to a third learned judge to resolve the 'difference of opinion' ' there is only one opinion expressed and that is of Sarin, J and that opinion is the decision of the Court and there is no difference of opinion between the two learned judges constituting the Bench.
39. We may look at the problem from another angle. If a learned judge decides to recuse himself from hearing a case, for some personal reason, can another learned judge sitting with him differ and insist that the learned judge should not recuse himself, thereby virtually compelling him to hear and decide a case, which he does not want to for personal reasons. The answer to this must obviously be in the negative.
Third issue: effect of the third order
40. The third order, quite naturally, comes after the second order wherein Misra, J has categorically stated that he does not express any opinion on the facts surrounding the controversy or the correct position in law. Having said that, Misra, J withdrew from the case by expressing his disinclination to hear the matter any further. What does this mean 'Earlier in the day Misra, J chose not to express any opinion on facts or in law and a little later he chose to withdraw from the case. The only conclusion that one can reasonably arrive at from this is that Misra, J did not want to have anything to do with the case' on facts, in law or even otherwise. When the opportunity presented itself before him for expressing an opinion, he decided not to. Had he any judicial interest in the matter, he would have certainly expressed himself one way or the other. From this, it must be concluded, in our opinion, that he had washed his hands off the case and explicitly said so at the first available opportunity.
41. To suggest, as the Applicant is doing, that notwithstanding the third order, Misra, J further hear or deal with the matter is uncalled-for. As we have already held, the issue of recusal could have (possibly) been decided by the Bench, but Misra, J left it for Sarin, J to decide and he then had really no effective role to play in the decision making process as he himself has indicated by necessary implication. To insist that Misra, J hears the matter is to needlessly embarrass him. If a judge does not want to substantively deal with a case, then to require him to do so 'unless it is absolutely necessary' will only cause him discomfiture and surely the Applicant does not have any such intention.
42. It was contended on behalf of the Applicant that Hon'ble the Chief Justice erred in constituting the present Bench, to the exclusion of Misra, J. On the basis of the reasons indicated above, we are of the opinion that there is no error committed by Hon'ble the Chief Justice in constituting a special Bench to hear the application filed by the Applicant and that it was not obligatory to have the application under consideration listed before the Bench of Sarin and Misra, JJ.
43. Hon'ble the Chief Justice is undoubtedly the master of the roster. [see for example State of Maharashtra v. Narayan Shamrao Puranik and State of Rajasthan v. Prakash Chand ]. What would one expect the learned Chief Justice to do under the circumstances - He receives the third order which unequivocally suggests to him that Misra, J has 'expressed his disinclination to hear the matter any further'. He also receives with it an application with the prayers as mentioned above. Hon'ble the Chief Justice is aware, on going through the case papers, that 'allegations' have been made only against Sarin, J and that he has rejected those 'allegations'. He is also aware that Misra, J has expressed no opinion on the 'allegations'. On the totality of the facts, Hon'ble the Chief Justice decides, in the interest of the Applicant and in the interests of justice, to constitute a special Bench to hear the application, even though the learned Chief Justice had the option to request Sarin, J to alone hear the application. In doing so, Hon'ble the Chief Justice discharged his duty, as one would expect him to and no fault can be found in this regard.
44. Moreover, the Applicant has not substantively challenged the order passed by Hon'ble the Chief Justice in constituting the special Bench. There is no reason, therefore, to set aside the administrative order passed by Hon'ble the Chief Justice. The order passed by Hon'ble the Chief Justice constituting the special Bench to hear the application under consideration is correct, with respect, in law and even on merits, more so considering the facts of this case.
Conclusions:
45. On the basis of our opinion expressed on the various issues raised, we conclude as follows:
1. Given the nature of the prayers made in the application under consideration, it is not at all necessary that only a Bench consisting of Sarin and Misra, JJ should hear and decide it. Sarin, J is competent to decide the application alone and it was not even necessary for Lokur, J to be a member of the Bench hearing the application.
2. There is no illegality in the application under consideration being heard and decided by a Bench consisting of Sarin, J and Lokur, J.
3. Hon'ble the Chief Justice is fully competent to constitute the present Bench to hear the application under consideration.
4. In the second order, Misra, J has expressed no opinion, let alone any binding opinion, on the merits of the 'allegations' made against Sarin, J and in the circumstances of the case commendably so, even though the law in our country apparently does not prohibit him from doing so. On the contrary, it would have been unfortunate if Misra, J had expressed an opinion on the 'allegations' made against Sarin, J.
5. There is no doubt that Misra, J would not like to hear the case any further and it would be inadvisable to request him, let alone compel him, to do so. Misra, J has completely washed his hands off the case for all intents and purposes. Hon'ble the Chief Justice took the right step, with respect, in constituting a special Bench to hear the application under consideration.
On the merits of the request for review:
46. Learned Counsel for the Applicant submitted that he had nothing to say on the merits of the request for review, if the other submissions made by him were rejected. Since we have rejected all the submissions made by learned Counsel for the Applicant, we dismiss the request for a review of the first order since no submissions have been made in support of the request. Even otherwise, in the first order Sarin, J has comprehensively dealt with the grounds and pleas which are sought to be raised in the application under consideration. These do not constitute valid grounds for review and no clarification is needed. At best, the grounds can be urged in an appeal.
47. It may be mentioned that learned Counsel for the Applicant referred to a few decisions of this Court where there has been a difference of opinion between two learned judges and also the procedure for making a reference to a third learned judge. Since we have come to the conclusion that there was no difference of opinion between Sarin, J and Misra, J it is not necessary to deal with those decisions.
48. As a postscript, we may add that a copy of this decision be placed before Hon'ble the Chief Justice for framing a practice direction, if deemed advisable, to the effect that when an application for recusal of a judge is made, then that application should be considered only by that learned judge and his decision on the application would be final, since the application would essentially pertain to him only. This would not only set a healthy practice to be followed but would also obviate any unnecessary discussion as has happened in this case.
49. Both the substantive prayers in the application are rejected.