Orissa High Court
BLAPL/8661/2017 on 18 May, 2018
BLAPL No.8661 of 2017
11. 17.05.2018/ This order relates to disposal of the prayer made
18.05.2018
by the petitioner in his affidavit filed on his behalf on
11.5.2018.
2. The background of the case in short is that on
20.9.2013 while the informant-Advocate was returning in
his Car after finishing his Court work along with his
brother-in-law, two motorcyclists followed his Car and
came in front of his Car and threw bombs to his Car. As
such, the informant and his brother-in-law sustained
injury and they were shifted to SCB Medical College and
Hospital, Cuttack for treatment. A case under Sections
341/307/34 of IPC read with Sections 25/27 of Arms Act
and Section 9(b) of the Explosive Act was started. During
course of investigation, the present petitioner was found
to have made conspiracy for an attempt to kill the
informant because of the previous dispute between them.
3. Charge-sheet is submitted in this case and the
bail application of the present petitioner was rejected by
this Bench on 20.6.2017. However, the successive bail
application was filed by the present petitioner on
13.11.2017 seeking bail in this case. While this successive
bail application is pending for consideration, the present
affidavit in question is filed on 11.5.2018 seeking transfer
of this case to some other Bench solely on the ground that
why the Court while sitting to hear the application under
Section 439 of Cr.P.C. has directed for the whereabouts of
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the petitioner and asking the NIRTAR at Olatpur, SCB
Medical College and Hospital, Cuttack and Superintendent
of Jail, Choudwar to file affidavit although the petitioner is
suffering from ailments. Since there is delay in hearing the
bail application of the petitioner under Section 439 of
Cr.P.C. but sitting as an appellate authority, the right of
the petitioner as available under Article 21 of the
Constitution has been curtailed. So, this petitioner is not
reposing confidence on the Court and seeks to transfer of
the bail application to some other Bench.
4. Mr. H.S. Mishra, learned counsel for the
petitioner while placing the affidavit submitted that the
petitioner wants the prayer in the affidavit should be first
considered and he does not want to place the main bail
application when petitioner has filed this affidavit for
transfer of the case. According to him, the Court has listed
the matter time to time to know whether the petitioner
has been brought to the jail custody but due to health
ailment he is under treatment at NIRTAR and there is no
necessity to make such enquiry except causing delay in
hearing the successive bail application. So, the petitioner
has no faith on the Bench and requires transfer of this bail
application to some other Bench.
5. Mr. D.K. Mishra, learned Additional
Government Advocate strenuously opposed the affidavit.
According to him, such affidavit does not give arise
because to recuse from this case the petitioner himself is
contributing to delay in disposal of the bail application.
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Moreover, the entire order-sheet of this case and previous
bail application would show steps taken for expeditious
disposal of the bail application. Apart from this, this
successive bail application is to be heard by this Bench
because this Bench has earlier rejected the bail application
of the present petitioner vide BLAPL No.1039 of 2017 and
the Hon'ble Supreme Court in Shahzad Hasan Khan v.
Ishtiaq Hasan Khan and another, (1987) 2 SCC 684
have held the following:
"........Longstanding convention and judicial discipline
required that respondent's bail application should
have been placed before Justice Kamleshwar Nath
who had passed earlier orders, who was available as
Vacation Judge. The convention that subsequent bail
application should be placed before the same Judge
who may have passed earlier orders has its roots in
principle. It prevents abuse of process of court
inasmuch as an impression is not created that a
litigant is shunning or selecting a court depending on
whether the court is to his liking or not, and is
encouraged to file successive applications without any
new factor having cropped up. If successive bail
applications on the same subject are permitted to be
disposed of by different Judges there would be
conflicting orders and a litigant would be pestering
every Judge till he gets an order to his liking resulting
in the creditability of the court and the confidence of
the other side being put in issue and there would be
wastage of courts' time. Judicial discipline requires
that such matter must be placed before the same
judge, if he is available for orders."
Since there is no biasness or any other things
involved, but the petitioner had only made this affidavit
for an ulterior motive which is best known to him, the
prayer in the affidavit need not be allowed. Learned
counsel for the informant also supported him.
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6. Considered the submissions of the learned
counsels for both the parties. Recusal of a Judge in Bench
hearing the matter is well considered by catena of
decisions of the Hon'ble Apex Court. In the decision
reported in Jagmohan Bahl v. State (NCT of Delhi), JT
2014 (14) SC 369 where His Lordships observed the
following:
"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 on sanctity."
7. In the case of Supreme Court Advocates-
on-Record Association and another v. Union of
India, (2016) 5 SCC 808, the Hon'ble Supreme Court
observed the following:
".......... 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 never be
accepted 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 part of the Bench, flows from the oath which I
took, at the time of my elevation to this Court."
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8. In the case of Kamini Jaiswal v. Union of
India, (2018) 1 SCC 156 where Their Lordships have
observed the following:
"32. On behalf of the petitioner for recusal of Hon'ble
A M Khanwilkar, J., reliance has been placed on the
decision in Ranjit Thakur v. Union of India & Ors.
(1987) 4 SCC 611 in which it has been laid down
that reasonableness of the apprehension or bias in
the mind of the party has to be seen. We find that
there is no room for the petitioner to infer the bias.
There is no reasonable basis to pray for recusal of
Hon'ble A.M.Khanwilkar, J. In our opinion that
tantamount to contempt of court and an attempt at
forum hunting. Reference has also been made to the
decision in Supreme Court Advocates on Record
Association v. Union of India (2016) 5 SCC 808
in which maxim nemo judex in causa sua has been
considered, that no man is to be judge in his own
cause, should be held sacred and that maxim is not to
be confined to a case in which he is a party but
applies to a cause in which he has an interest. It is far
fetched and too tenuous to submit that any Judge of
this Court much less Hon'ble A.M. Khanwilkar, J. has
any interest in the subject matter and for that reason
in spite of there being no allegation in the writ
petition, Shri Justice A. M. Khanwilkar should recuse.
There is no room for reasonable suspicion even in
remote and argument is simply too derogatory to be
made, probably that has been made anyhow or
somehow to protect the case and to bring disrepute
to this Court. We cannot fall prey to such
unscrupulous devices adopted by the litigants, so as
to choose the Benches, as that is a real threat to very
existence of the system itself and it would be
denigrated in case we succumb to such pressure
tactics."
9. With due regard to the aforesaid decisions, it
appears that recusal of a Judge from Bench is not at the
whims and caprice of the litigants. It is the Judge himself
to choose whether he should sit and continue in the
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Bench. If the cases will be transferred from one Bench to
another Bench and according to the wish of the litigant
then it would be perhaps the Bench hunting which is not
at all a good sign for administration of justice. Of course
the matter to be considered from case to case whether a
Judge would recuse from hearing of the case. Keeping in
mind all these principles, let me analyze the fact of the
case where this Bench should recuse himself or not.
10. On perusal of the record, it appears this case
was listed on 14.12.2017 before the assigned Bench
where the Bench found that the earlier bail application was
rejected by this Bench for which it should be disposed of
by this Bench subject to the order of the Hon'ble Chief
Justice. Then the order of the Hon'ble Chief Justice was
obtained on 15.12.2017 and accordingly this matter was
placed before this Bench for the first time on 2.1.2018. On
that day, the petitioner took adjournment showing the
matter was placed on 16.1.2018 when the Counsel for the
State took time to take instruction. Then the matter listed
before this Bench on 12.2.2018 where the petitioner
claimed his case is not being committed to the Court of
Session whereas the case of co-accused has already been
committed to the Court of Session even if the petitioner is
in custody. Then the counsel for the State took
adjournment to take instruction and to produce the copies
of the order passed by the learned Magistrate. The matter
was placed before this Court on 27.3.2018. On that day,
on perusal of the certified copy of the order sheets, it
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appears that the petitioner is not being produced before
the learned Magistrate because he has been already under
treatment for quite long time at NIRTAR but not in SCB
Medical College and Hospital, Cuttack. NIRTAR is a
Rehabilitation Centre. Since the petitioner was not
produced before the learned Magistrate, the case against
him was split up. The affidavits of the concerned
authorities were called for to ascertain the facts
necessitating to split up the case. On 23.4.2018 it was
informed that the petitioner has been discharged on
9.4.2018 and he has returned to jail custody. When the
matter is going to be heard on 2.5.2018 the petitioner
changed the Advocate and on that day Mr. H.S. Mishra,
learned Advocate submitted that he has just entered
appearance and sought time to get ready in the matter for
which the matter was listed to 14.5.2018.
11. From the aforesaid scenario, it appears when
the petitioner himself took the plea in the bail application
for not being taken up his matter by the learned
Magistrate and that was the ground for granting bail in
successive bail application showing the change of
circumstance, the Court in its wisdom enquired what
happened to the petitioner as it is the prerogative of the
Court to find out whether the petitioner in custody has
been time to time remanded or on the ground of health
condition has remained aloof from trial which is allegedly
made a ground for granting bail. When the matter is listed
on 14.5.2018 the petitioner is not ready for hearing on the
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bail petition but interested for shifting of the case to other
Bench. Thus, delay in disposal of bail application is at the
instance of the petitioner.
12. In view of the decisions of the Hon'ble
Supreme Court as discussed above, since the bail
application has been specially assigned for the reason this
Bench has earlier rejected the bail application and there is
no any biasness or any delay in disposal of the bail
application, the apprehension in the mind of the petitioner
is misconceived and misdirected. Rather, the certified
copy of the order sheet dated 25.4.2018 maintained by
the learned Magistrate filed on 14.5.2018 by the learned
Additional Government Advocate shows that the petitioner
is in jail custody. So, there is no reason for this Court to
recuse from this case to hear the successive bail
application. Hence, the prayer in the affidavit being devoid
of merit stands rejected.
List this matter today (18.5.2018) for hearing
on bail application.
................................
Dr.D.P.Choudhury, J.
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