RAJEEV BHARDWAJ Vs. STATE OF H. P.
LAWS(HPH)-2021-3-28
HIGH COURT OF HIMACHAL PRADESH
Decided on March 08,2021

Rajeev Bhardwaj Appellant
VERSUS
STATE OF H. P. Respondents

JUDGEMENT

Anoop Chitkara,J. - (1.) Seeking appropriate directions qua the judgment passed by one of the Hon'ble Judges of this Court, who pronounced a dissenting verdict in Letters Patent Appeals, and decided in favour of the petitioners; the private respondents 3 to 6, came up before the third Judge, under Section 151 CPC, alleging that now they have come to know that wife of the Hon'ble Judge who gave the dissenting pronouncement, is related to the wife of one of the Appellants and thus the judgment given by the said Hon'ble Judge is non est as being coram non-judice.
(2.) The prayer clause of the application reads as follows: "a.That the dissenting view so recorded by the Hon'ble Justice Sureshwar Thakur, in LPA 33 and 39 of 2019, dated 11.3.2020, be declared coram non-judice and nonest in the eyes of law; b. That the LPA 33 and 39 of 2019 may thus kindly be remitted to the Hon'ble Chief Justice for constitution of a Division Bench for hearing the LPA afresh in the interest of justice and fairplay."
(3.) Mr. Bipin Chander Negi Ld. Senior Advocate, who represents 5th and 6th respondents, namely Mr. Chirag Bhanu Singh and Mr. Arvind Malhotra, in LPAs, argued that the allegations pointed out in the application establish bias. Thus, the application deserves acceptance in terms of its prayers. Ld. Sr. Advocate has relied upon the following judicial precedents to buttress his contentions: a). D K Khanna v Union of India , 1973 AIR(HP) 30, wherein a Division Bench of this Court holds, "[24] Bias has been classified into different categories. We are concerned here with personal bias. Personal bias may arise from personal hostility to one party or from personal friendship or family relationship with the other. In the case of family relationship, the challenge to the proceeding need only establish so close a degree of relationship as to give rise to the reasonable likelihood of the Judge espousing the cause as his own. However, in England in 1572 a Court upheld an objection, in Vernon v. Manners.,1572 2 Plowd 425 to the validity of a proceeding in which the Sheriff who had summoned the jury was related in the ninth degree to one of the parties. Closer relationship has invariably led to the invalidation of the proceedings. In Bridgman v. Holt.,1693 1 ShowPC 111, Holt C. J. withdrew from a case in which his brother was a party, Reference may be made to R. v. Rand.,1866 1 QB 230. In Becquet v. Lamp-riere.,1830 1 Knnaop 376 the Privy Council disqualified the jurat of the Royal Court of Jersey from hearing a case in which his deceased wife's nephew was a party." b). State of Punjab v. Sumedh Singh Saini , 2011 14 SCC 770, wherein Hon'ble Supreme Court holds, "[24] There may be a case where allegations may be made against a Judge of having bias/prejudice at any stage of the proceedings or after the proceedings are over. There may be some substance in it or it may be made for ulterior purpose or in a pending case to avoid the Bench if a party apprehends that judgment may be delivered against him. Suspicion or bias disables an official from acting as an adjudicator. Further, if such allegation is made without any substance, it would be disastrous to the system as a whole, for the reason, that it casts doubt upon a Judge who has no personal interest in the outcome of the controversy. xxx xxx xxx [36] Thus, it is evident that the allegations of judicial bias are required to be scrutinised taking into consideration the factual matrix of the case in hand. The court must bear in mind that a mere ground of appearance of bias and not actual bias is enough to vitiate the judgment/order. Actual proof of prejudice in such a case may make the case of the party concerned stronger, but such a proof is not required. In fact, what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. However, once such an apprehension exists, the trial/judgment/order etc. stands vitiated for want of impartiality. Such judgment/order is a nullity and the trial "coram nonjudice". [106] The order impugned has rightly been challenged to be a nullity at least on three grounds, namely, judicial bias; want of jurisdiction by virtue of application of the provisions of Section 362 Cr.P.C. coupled with the principles of constructive res judicata; and the Bench had not been assigned the roster to entertain petitions under Section 482 Cr.P.C. The entire judicial process appears to have been drowned to achieve a motivated result which we are unable to approve of. [107] It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case. [108] In Badrinath v. State of Tamil Nadu & Ors. , 2000 AIR(SC) 3243; and State of Kerala v. Puthenkavu N.S.S. Karayogam & Anr. , 2001 10 SCC 191, this Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle is applicable to judicial, quasi-judicial and administrative proceedings equally. [109] Similarly in Mangal Prasad Tamoli (dead) by Lrs. v. Narvadeshwar Mishra (dead) by Lrs. & Ors. , 2005 3 SCC 422, this Court held that if an order at the initial stage is bad in law, then all further proceedings, consequent thereto, will be non est and have to be necessarily set aside. [110] In C. Albert Morris v. K. Chandrasekaran & Ors. , 2006 1 SCC 228, this Court held that a right in law exists only and only when it has a lawful origin. (See also: Upen Chandra Gogoi v. State of Assam & Ors. , 1998 3 SCC 381; Satchidananda Misra v. State of Orissa & Ors. , 2004 8 SCC 599; Regional Manager, SBI v. Rakesh Kumar Tewari , 2006 1 SCC 530; and Ritesh Tewari & Anr. v. State of U.P. & Ors. , 2010 AIR(SC) 3823). [111] Thus, in view of the above, we are of the considered opinion that the orders impugned being a nullity, cannot be sustained. As a consequence, subsequent proceedings/orders/FIR/ investigation stand automatically vitiated and are liable to be declared non est." c). Supreme Court Advocates-on-Record Association and Another v. Union of India , 2016 5 SCC 808, Per Hon'ble Mr. Justice J.Chelameswar, "[10] t is one of the settled principles of a civilised legal system that a Judge is required to be impartial. It is said that the hallmark of a democracy is the existence of an impartial Judge. [25] From the above decisions, in our opinion, the following principles emerge; 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 in the case is other than financial, then the disqualification is not automatic but an enquiry is required whether the existence of such an interest disqualifies the Judge tested in the light of either on the principle of "real danger" or "reasonable apprehension" of bias. The Pinochet case added a new category i.e that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case." Per Hon'ble Mr. Justice Kurian Joseph, "One of the reasons for recusal of a Judge is that litigants/the public might entertain a reasonable apprehension about his impartiality. As Lord Chief Justice Hewart said: "It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." R v. Sussex Justices, Ex parte McCarthy , 1924 1 KB 256. And therefore, in order to uphold the credibility of the integrity institution, the Judge recuses from hearing the case. A Judge of the Supreme Court or the High Court, while assuming Office, takes an oath as prescribed under Schedule III to the Constitution of India, that: "......I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws." [69] Called upon to discharge the duties of the Office without fear or favour, affection or ill-will, it is only desirable, if not proper, that a Judge, for any unavoidable reason like some pecuniary interest, affinity or adversity with the parties in the case, direct or indirect interest in the outcome of the litigation, family directly involved in litigation on the same issue elsewhere, the Judge being aware that he or someone in his immediate family has an interest, financial or otherwise that could have a substantial bearing as a consequence of the decision in the litigation, etc., to recuse himself from the adjudication of a particular matter. No doubt, these examples are not exhaustive. [70]. Guidelines on the ethical conduct of the Judges were formulated in the Chief Justices' Conference held in 1999 known as "Restatement of Judicial Values of Judicial Life". Those principles, as a matter of fact, formed the basis of "The Bangalore Principles of Judicial Conduct, 2002" formulated at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague. It is seen from the Preamble that the Drafting Committee had taken into consideration thirty two such statements all over the world including that of India. On Value 2 "Impartiality", it is resolved as follows: "Principle: Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made. Application: 2.1 A judge shall perform his or her judicial duties without favour, bias or prejudice. 2.2 A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary. 2.3 A judge shall, so far as is reasonable, so conduct himself or herself as to minimise the occasions on which it will be necessary for the judge to be disqualified from hearing or deciding cases. 2.4 A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue. 2.5 A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where 2.5.1 the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; 2.5.2 the judge previously served as a lawyer or was a material witness in the matter in controversy; or 2.5.3 the judge, or a member of the judge's family, has an economic interest in the outcome of the matter in controversy: Provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice." The simple question is, whether the adjudication by the Judge concerned, would cause a reasonable doubt in the mind of a reasonably informed litigant and fair-minded public as to his impartiality. Being an institution whose hallmark is transparency, it is only proper that the Judge discharging high and noble duties, at least broadly indicate the reasons for recusing from the case so that the litigants or the well- meaning public may not entertain any misunderstanding that the recusal was for altogether irrelevant reasons like the cases being very old, involving detailed consideration, decision on several questions of law, a situation where the Judge is not happy with the roster, a Judge getting unduly sensitive about the public perception of his image, Judge wanting not to cause displeasure to anybody, Judge always wanting not to decide any sensitive or controversial issues, etc. Once reasons for recusal are indicated, there will not be any room for attributing any motive for the recusal. To put it differently, it is part of his duty to be accountable to the Constitution by upholding it without fear or favour, affection or ill- will. Therefore, I am of the view that it is the constitutional duty, as reflected in one's oath, to be transparent and accountable, and hence, a Judge is required to indicate reasons for his recusal from a particular case. This would help to curb the tendency for forum shopping." ;


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