Munshi Matiar Rahaman vs State Of West Bengal

In Re : C.R.A.N. 1746 of 2018

Petitioner has taken out this application seeking recusal of the instant case from the Bench alleging bias on the part of the Bench towards him.

Upon such oral submissions being made by the learned senior advocate for the petitioner, we requested him to take out an appropriate application in

that regard which came to be filed by way of the instant application being CRAN 1746 of 2018.

Affidavit-in-opposition to the said application has been filed on behalf the State-respondents. The same be kept with the record.

We have considered the pleadings and arguments of both the parties.

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.

In this regard, it may be profitable to refer to the ratio of the Apex Court in Supreme Court Advocates-on-record Association & Anr. vs. Union of

India & Ors. reported in (2016) 5 SCC 808, wherein Khehar, CJ. (as His Lordship then was) inter alia observed that it is the duty of a Court to decide

a plea of recusal on merits and not release a matter on the mere asking of a litigant. Khehar, C.J. succinctly enunciated the law of recusal as follows:-

“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. For that would give the impression, that 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.â€​

In view of the aforesaid enunciation of law, we are obliged to examine the plea of recusal in an objective and dispassionate manner on merits and not

accept the same at the bidding of a party.

In the recusal application it is, inter alia, alleged that this Bench is prejudiced towards the petitioner as it had recalled an earlier oral order (which had

not been signed) granting bail to the petitioner and thereafter had refused such prayer. The other issue raised is the use of the expression 'trial’ in

the order dated 20th June, 2018 which in the assessment of the petitioner had prejudiced the trial Judge and prompted him to proceed with framing of

charge and commence of trial against the petitioners. Such submissions have been disputed on behalf of the State and it has been contended that the

petitioner had made repeated efforts to delay the trial in the instant case.

For a better appreciation of the matter in issue, a chronological narration of events may be worthwhile, which is set out hereinbelow: -

On 18th May, 2018 when the matter was called on before this 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 selfsame day at 2:00 P.M. learned advocate for the State mentioned the matter upon

notice to the learned 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. As the order of bail had not been signed

by us and the petitioner was unrepresented, we directed the matter to be placed as ‘To Be Mentioned’ on 4th June, 2018 (as the Summer

Vacation had intervened). On 5th June, 2018 we reconsidered the matter at length and gave ample opportunity of hearing to the learned senior

advocate appearing for the petitioner as well as the learned advocate for the State. We were informed by the learned Public Prosecutor that a prayer

for transfer of the proceeding was pending for consideration before the Sessions Judge.

Under such circumstances, we considered it prudent to adjourn the hearing of the matter for two weeks so that necessary decision on the issue of

transfer may be taken by the Sessions Judge in the meantime. The learned Sessions Judge vide order dated 8th June, 2018 transferred the matter from

the file of the Additional Sessions Judge, 1st Court, Uluberia to the file of the Additional Sessions Judge, 1st Court, Howrah and 14th June, 2018 was

fixed for appearance before the said court.

Subsequently, the transferee Judge fixed the matter for consideration of charge on a number of dates, that is, 15th June, 2018, 18th June, 2018 and

ultimately on 20th June, 2018.

On that day the adjourned bail application was also taken up for hearing by us and we were informed that the matter had again been adjourned before

the trial Court and date for consideration of charge has been fixed on 25th June, 2018. Under such circumstances, we 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. At this stage the

instant application for recusal was filed on the grounds as quoted above.

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.

It is trite law that an order though orally pronounced in Court does not become final till it is signed. The factual matrix of the case clearly indicates that

on an erroneous understanding that co-accused persons are on bail, this Bench had orally pronounced an order granting bail to the petitioner on parity.

Such error was immediately brought to the notice of the Bench by the learned advocate on behalf of the State and that too upon due notice to the

learned advocate for the petitioner. Since the petitioner was unrepresented on the next day when the matter was listed as ‘To Be Mentioned’,

the Bench considered it prudent to give the petitioner an opportunity of hearing and placed the matter on the next date, that is, 4th June, 2018 as the

Summer Vacation had intervened. No objection to such conduct of the Bench was raised by the petitioner or by his advocates on the next date of

hearing, that is, 5th June, 2018 when the Bench proceeded to consider the matter on merits. Having gone through the materials on record including the

gravity of the offence and the life threatening injuries suffered by a public servant while in discharge of official duties who we were informed is still

bedridden in a paralytic condition and since a prayer for transfer of the proceeding was pending before the Sessions Judge, we considered it apt to

adjourn 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.

On the next date of hearing, that is, 20th June, 2018 we were informed that the matter had been transferred to the Additional Sessions Judge, 1st

Court, Howrah and a number of dates had been fixed for consideration of charge. It appears from the pleadings in the affidavit-inopposition filed by

the State and the orders placed before us that it was the petitioner who had raised objections with regard to the Counsel who would represent him in

the matter and on such score the trial court had adjourned the matter till 25th June, 2018 in order to ensure that the petitioner is not denied adequate

legal representation.

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, learned senior advocate for the petitioner raised 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. We are not unconscious that while considering a plea of prejudice the Court must

not only see whether actual prejudice is caused but must examine whether a reasonable apprehension of prejudice is created in the mind of a litigant

or stakeholder in justice. As discussed earlier 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 recording of prosecution evidence such plea has been

belatedly raised. It is also important to note that at no stage of the proceeding had the petitioner made any prayer for discharge before the trial court

which in the given circumstances could be said to have been prejudiced by use of the expression ‘progress of trial’ in order dated 20th June,

2018 as claimed by him.

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. It is also relevant to note that the Apex Court in various authorities had 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. [See: Union of India and Others

vs. Major General Madan Lal Yadav (Retd.) (1996) 4 SCC 127 (Para 27) & Bipinchandra Parshottamdas Patel (Vakil) vs. State of Gujarat and

Others (2003) 4 SCC 642 (Paras 51 to 53 & 60)].

In the aforesaid factual matrix, 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.

Furthermore, the petitioner had not even at the stage of consideration of charge, contested such exercise by praying for discharge and had permitted

the framing of charge against him without demur.

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. 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.

In this context, it may be apposite to recount the observations of Kurian Joseph, J. in Supreme Court Advocates-on-record Association & Anr. (supra)

as follows:-

“74. There may be situations where mischievous litigants wanting to avoid a Judge may be because he is known to them to be very strong and thus

making an attempt for forum shopping by raising baseless submissions on conflict of interest. The Constitutional Court of South Africa in President of

the Republic of South Africa v. South African Rugby Football Union, has made two very relevant observations in this regard: (ZACC para 46)

“46. … ‘Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do

not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a Judge, they will

have their case tried by someone thought to be more likely to decide the case in their favour.’ …

‘It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case

impartially or without prejudice, rather than that he will decide the case adversely to one party.â€​

Ultimately, the question is whether a fair-minded and reasonably informed person, on correct facts, would reasonably entertain a doubt on the

impartiality of the Judge. The reasonableness of the apprehension must be assessed in the light of the oath of office he has taken as a Judge to

administer justice without fear or favour, affection or ill will and his ability to carry out the oath by reason of his training and experience whereby he is

in a position to disabuse his mind of any irrelevant personal belief or predisposition or unwarranted apprehensions of his image in public or difficulty in

deciding a controversial issue particularly when the same is highly sensitive.â€​

Hence, we undertook the unsavoury exercise to adjudicate the plea of bias on which the prayer for recusal is founded and we are constrained to hold

that the same is wholly unfounded both in law and in fact and is liable to be turned down.

The application being CRAN 1746 of 2018 is accordingly, dismissed.

In Re : C.R.M. 2866 of 2018

At this juncture learned senior advocate for the petitioner refuses to argue the application for bail.

Accordingly, the matter is directed to go out of the list.

Liberty to mention.