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Judge Can't Recuse From A Case Merely Because His Father Appeared In It For The State Earlier: Sikkim HC [Read Order]

Ashok Kini
26 March 2019 9:19 AM GMT
Judge Cant Recuse From A Case Merely Because His Father Appeared In It For The State Earlier: Sikkim HC [Read Order]
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"In my view, it is the duty of a Judge to hear every matter placed before him without fear or favour"
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The Sikkim High Court rejected an application of a District Judge who wanted to recuse from a case on the ground that his father who was an Additional Advocate General, had appeared for the State in respect of the same subject matter.

The District Judge had referred the matter to High court when it was brought to its notice that his father had appeared for the state in the 'Title Appeal'. The High court registered the reference as a Transfer petition.

In my view, this cannot be and should not be ground for recusal from the case, said Chief Justice Vijai Kumar Bist after he noted that the District Judge himself was not involved in any manner with the case and was not appearing for any of the parties. The Court observed:

"It was his father who was appearing for the respondent, that too, for the State as State Counsel/Additional Advocate General. In fact, in many cases the Counsel for the State appear on behalf of the State. They do not even remember in which case they appeared for the State. The father of the District Judge appeared in his private capacity and the District Judge had nothing to do with the said case. In some cases it is found that father appears for one party and son appears for opposite party. They appear for the respective parties in their individual capacity. Nothing wrong in it."

Justice Bist also added that is the duty of a Judge to hear every matter placed before him without fear or favour. While rejecting the application, the judge further observed:

"A Judge can recuse when he or his family members' interest is involved in the case. He can also recuse when his close relative is a party in the lis. He can recuse from a case where one of the parties is known to him and is closely associated with him. He can also recuse when he had earlier as an Advocate appeared for one of the parties. A Judge can also recuse where he had earlier given legal opinion in the matter or has a financial interest in the litigation."

The court noted a Supreme Court judgment in Supreme Court Advocates-On-Record Association and Another vs. Union of India, wherein it was held that if a Judge has a financial interest in the outcome of a case, he is automatically disqualified from hearing the case. In cases where the interest of the Judge is other than financial, then the disqualification is not automatic but an enquiry is required where the existence of such an interest disqualifies the Judge tested in the light of either on the principle of "real danger" or "reasonable apprehension", the Supreme Court had held in the said judgment.

The court also observed that in Trishala vs. M.V. Sundar Raj which held that merely because, whilst at the Bar, the judge was a Standing Counsel for the Municipal Corporation, he was not precluded either in law or on propriety from hearing any case in which a Corporator is a party in his personal capacity.

Read Order


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