21 July 2018 5:38 AM GMT
A judge has to ensure that judicial process is insulated from scheming parties trying to circumvent the process by belated pleas of recusal, said a Calcutta High Court bench which was forced to undertake the “unsavoury” exercise of deciding a plea of its own bias stemming from its use of expression “ progress of trial ”.A bench of Justice Joymalya Bagchi and Justice Ravi Krishan...
A judge has to ensure that judicial process is insulated from scheming parties trying to circumvent the process by belated pleas of recusal, said a Calcutta High Court bench which was forced to undertake the “unsavoury” exercise of deciding a plea of its own bias stemming from its use of expression “ progress of trial ”.
A bench of Justice Joymalya Bagchi and Justice Ravi Krishan Kapur rejected the plea of recusal moved by petitioner Munshi Matiar Rahaman, who claimed to be a practicing advocate.
On what led to this belief that the bench may be biased, Rahaman had said the bench had recalled an earlier oral order (which had not been signed) granting him bail and thereafter, had refused such prayer. The second reason for his apprehension was the use of the expression 'trial’ in the order dated 20th June, 2018, which in Rahaman’s assessment had prejudiced the trial judge and prompted him to proceed with framing of charge and commence of trial against him and the co-accused.
In its decision dismissing his plea of recusal, the bench said, “At the outset, we clarify that we have neither any affinity nor antipathy to hear the instant bail application. However, as the judicial business assigned to this Bench by the Hon’ble The Chief Justice casts a solemn duty upon us to consider the instant matter, we deem it our constitutional responsibility to adjudicate the legality and propriety of the prayer for recusal in accordance with law.”
The bench cited the ratio of the Supreme Court in Supreme Court Advocates-on-record Association & Anr. vs. Union of India & Ors, wherein the then Chief Justice of India JS Khehar had observed: “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 acceded to.”
The bench then looked at the chronology of events that led to Rahaman, accused of assault on a public servant, claiming apprehension of bias.
On May 18, 2018, when the matter came before the bench, on a mistaken understanding that co-accused persons were on bail, the bench had orally dictated an order granting bail to the petitioner.
On the same day, counsel for the state mentioned the matter upon notice to the advocate for the petitioner and submitted that none of the co-accused persons were on bail and the medical reports relating to assault on the police officer disclosed grave injuries on him which had rendered him paralysed and bedridden.
Since the bail order had not been signed by the bench till then, it directed that the matter be placed before it on June 4. On the said date, the bench heard the counsel for the petitioner as well as the state and adjourned the hearing by two weeks after it was informed that a prayer for transfer of the proceeding was pending for consideration before the Sessions judge.
On June 8, the matter was transferred from Additional Sessions Judge, 1st Court, Uluberia, to Additional Sessions Judge, 1st Court, Howrah.
Subsequently, the transferee judge fixed the matter for consideration of charge on a number of dates, i.e., 15th June, 2018; 18th June, 2018, and ultimately on 20th June, 2018.
On June 20, the adjourned bail application was also taken up by the high court bench which was informed that the matter has once again been adjourned by the Sessions court and now fixed for June 25.
Under such circumstances, the bench adjourned the hearing of the bail application till 3rd July, 2018 and directed a report to be filed with regard to ‘progress of trial’ on the next date of hearing.
This led to the petitioner filing the instant application for recusal of the bench.
Not likely to generate fear of apprehension
“From the sequence of events as narrated above, we feel persuaded to observe that neither the recall of the oral unsigned order by this bench on 18th May, 2018 nor the use of the expression ‘progress of trial’ in the order dated 20th June, 2018 can be construed to be circumstances which are likely to generate an impression of bias in the mind of any litigant far less one who is an advocate practicing law,” said the bench.
“It is trite law that an order though orally pronounced in Court does not become final till it is signed,” it added.
The bench expressly stated that it was on an erroneous understanding of the facts that it had passed an oral order of bail but the error was immediately brought to its notice by the state and that it had given an opportunity of being heard to the petitioner by keeping the matter for another day.
It also noted that the petitioner never raised the apprehension of bias when the bench heard matter on merits and also added that it had adjourned the matter awaiting decision on the point of transfer so as to strike a balance between the competing claims of right to liberty of an undertrial on the one hand and the necessity of expeditious disposal of proceeding involving grave offences on the other hand.
With the state arguing that the petitioner has been using delay tactics, the bench noted that even on June 20, the trial court had adjourned the matter only because the petitioner had raised objections with regard to the counsel who would represent him in the matter.
“It is in this backdrop that the court on 20th June 2018, had sought for a report as to ‘progress of trial’ in the instant case. On the next date of hearing, senior advocate for the petitioner raised an objection to the aforesaid expression and submitted that the said expression had caused prejudice to his client as the Judge proceeded to frame charge and fixed dates for recording of prosecution evidence in the instant case.
“We have given our anxious consideration to such plea of prejudice…no grievance with regard to the manner in which the Bench had conducted the hearing of the bail application had been expressed prior to 3rd July, 2018. Only when the matter had ripened for the recording of prosecution evidence such plea has been belatedly raised,” the court observed.
It also noted that at no stage of the proceeding had the petitioner made any prayer for discharge before the trial court.
Used the word ‘trial’ in generic sense
“It is also apposite to note that the words ‘progress of trial’ when read contextually in the facts of the case meant progress of the proceeding before the trial court and such expression had not been used in contradistinction to the word ‘inquiry’ under Section 2(g) of the Code of Criminal Procedure,” said the bench.
It also relied on various apex court cases which acknowledged the use of the word ‘trial’ in a generic sense rather than in the strict sense of commencement of proceeding from the stage of framing of charge.
Scheming parties and belated pleas of recusal
“We have no doubt in our mind that the use of the aforesaid expression could not have caused any reasonable apprehension of bias or prejudice in the mind of a man of ordinary prudence far less the petitioner, who claims to be a practicing advocate…On the other hand, the conduct of the petitioner in seeking adjournments before the trial court on one plea or the other and thereafter belatedly raising the instant plea for recusal clearly exposes his intention to unnecessarily delay the proceeding.
“It is the constitutional duty of every Judge to decide matters not only ‘without favour’ but also ‘without fear’. Insinuations of bias or prejudice founded on irrelevant or flimsy grounds ought to be dealt with sternly and the court ought not to bow down to such instances of browbeating and recuse itself on the plea of remaining insouciant. A judge dealing with a lis is required not only to see that the cause is dealt with fairly but also has to ensure that the judicial process is insulated from the machinations of scheming parties and the majesty of justice is preserved,” said the bench.
“A party to a lis particularly an advocate as in the present case who seeks to circumvent the judicial process through various subterfuges of delay and/or belated pleas of recusal ought not to be encouraged by a mechanical acceptance of such plea on its face value but a deeper scrutiny as to its tenability in law and in fact is necessary before it is accepted and acted upon,” it concluded.