Court On Its Own Motion vs State
2007 Latest Caselaw 1908 Del

JUDGMENT

Manmohan Sarin, J.

Page 2760

1. This is an application moved by the applicant Mr. R.K. Anand seeking discharge from the present Bench and to request one of us (Manmohan Sarin, J.) to recuse from hearing the above matter.

Page 2761

2. The applicant states that he has a feeling that he is not likely to get justice for variety of reasons. It is urged that he has tried to forget the past and bury the hatchet, but the manner in which the matter is being dealt with, has caused greatest damage to his reputation. The applicant avers that a note and annexures in a sealed cover would be handed over in the Court personally. Applicant prays for 'in-camera' proceedings so as to avoid embarrassment. The said application had come up before the Court on 5.9.2007, when the applicant handed over the note along with annexures. The unsigned note and the annexures were signed by the applicant. A copy of the note and annexures were directed to be provided to the amices Curiae Mr. Arvind Nigam, to address the Court on the prayer made for recusal. The applicant prayer for 'in-camera' proceedings was not acceded to.

3. Mr. Uday Lalit, Senior Advocate, has been heard on behalf of the applicant. Learned Senior Counsel addressed the Court on the approach to be adopted and judicial principles to be applied in exercising discretion, while considering the prayer for recusal. Learned Counsel submitted that while dealing with the prayer for recusal, the basic principles of 'audi alterem partem' and 'no person shall be a Judge in his own cause' have to be kept in mind. Further, that justice not only must be done but also appear to be done, has to be adhered to. Regarding bias, he submitted that the applicant seeking recusal was not required to demonstrate real or actual bias or that the conduct was such that it would lead to an adverse decision. It would be sufficient if a reasonable apprehension of bias was shown. Moreover, the matter has to be judged not from the perspective of the Judge, but from the point of view or perspective of the litigant. Applicant has placed on record a compilation of judgments in two volumes. Reliance was placed by counsel on Manak Lal, Advocate v. Dr. Prem Chand Singhvi reported at to urge that it was the essence of judicial decision making and administration that Judges should be able to act impartially, objectively and without any bias. The test was not whether bias had affected the judgment but whether litigant could reasonably apprehend that bias attributable to the member of a Tribunal might have operated in final decision of the Tribunal. It is in this sense that it is often said that justice must not also be done but must also appear to be done.

4. Reliance was next placed on A.K. Kripak and Ors. v. Union of India and Ors. reported at noting that the test was not actual bias since it was difficult to prove the state of mind. The Court observed that what is to be seen was whether there was reasonable ground for believing that the Tribunal was likely to have been biased. Counsel also referred to Ranjit Thakur v. Union of India and Ors. reported at wherein Page 2762 the Supreme Court noted legal principles regarding determination of alleged bias or likelihood of bias. Paras 15, 16, 17, 18, 19 and 20 of the judgment, which are relevant, are reproduced for facility of reference.

15. The second limb of the contention is as to the effect of the alleged bias on the part of respondent 4. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent No. 4 was likely to be disposed to decide the matter only in a particular way.

16. It is the essence of a judgment that it is made after due observance of the judicial process; that the court or tribunal passing it observes, at least the minimal requirements of natural justice; is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial 'coram non-judice.

17. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, 'Am I biased'; but to look at the mind of the party before him.

18. Lord Esher in Allinson v. General Council of Medical Education and Registration said:

The question is not, whether in fact he was or was not biased. The court cannot inquire into that. In the administration of justice, whether by a recognized legal court or by persons who, although not a legal public court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration, any person who is to take part in it should not be in such a position that he might be suspected of being biased.

19. In Metropolitan Properties Co. (F.G.C.) Ltd. V. Lannon, Lord Denning M.R. observed:

...in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favor one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.

20. Frankfurter, J. in Public Utilities Commission of the District of Columbia v. Pollak said:

The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately Page 2763 and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment.

5. Learned Counsel next referred to State of West Bengal and Ors. v. Shivananda Pathak and Ors. Reported at . The Supreme Court noted the distinction between bias as a pre-disposition or pre-determination so much so that it did not leave the mind open to conviction thereby rendering the Judge unable to exercise impartiality. The Supreme Court, at the same time, quoting Frank J. of the United States in Linahan, notes:

However, if 'bias' and 'partiality' be defined to mean the total absence of preconceptions in the mind of a Judge, then no one has ever had a fair trial and no one will. The human mind, even at infancy, is no blank piece of paper. We are born with predisposition. Much harm is done by the myth that, merely by taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.

6. Lastly, counsel referred to the judgment of one of us (Manmohan Sarin, J.) in Harsh Talwar v. Smt.Rani Gadhoke wherein the Court while dealing with a petition for transfer of a case pending before the Rent Control Tribunal, had held that while dealing with an application for transfer of proceedings, the Court has to consider whether there was a basis for a reasonable apprehension in the mind of the litigant that he may not get justice. Para 16 of the judgment reads as under:

16. The determining factor in an application for transfer of a proceeding is to assess whether the events, as reported, would give a cause of reasonable apprehension in the mind of the litigant that he may not get justice from the Court concerned. Confidence of both the parties as well as of the public being reposed in the Court is a vital element in the administration of justice. If the admitted events or facts are such as are capable of destroying the said confidence, then interference is called for. It may very often happen that the apprehension may not Page 2764 fully meet the strict legal standards. Yet, the said assessment has to be made from the point of view of the affected litigant. While judging the basis of the appellant's apprehension of not getting justice, Court should put itself in such a party's armchair to see how the events would affect the party's mind. Justice has not only to be done but it should be seen to have been done.

The above case is clearly distinguishable on facts. The Rent Control Tribunal (RCT) had denied the petitioner's request for a pass over and adjournment and respondent was heard in the absence of petitioner's counsel. In the hearing on the next day, as per petitioner's version, RCT had shouted at him stating, 'Keep quiet or I will throw you out.' Appellant's case is that the RCT told him, 'Receipts are clearly forged. Either you come within 7 days and report to me withdrawing the appeal or I will hold you guilty of forgery and send you behind bars.' Appellant's counsel had confirmed the words used by the Rent Control Tribunal and the incident was not in dispute. It was in these facts that the above transfer application was allowed, taking into account the apprehension from the petitioners perspective.

7. Mr. Uday Lalit submitted that the approach to be adopted in criminal or quasi- criminal proceedings like criminal contempt should be more liberal, lenient in favor of the applicant or accused since the very liberty could be in peril. In case of doubt, decision should be in favor of recusal. Learned Counsel submitted that this was all the more so since the element of bias may enter the sub-conscious mind and affect it without the Judge being fully conscious of it.

8. Having enunciated the legal principles, learned Counsel for the applicant proceeded to refer to the application and the note given by the applicant. He submitted that the applicant entertained an apprehension on account of the past events where according to the applicant, one of us Manmohan Sarin,J then an Advocate, in 1988, by misusing his powerful position as Vice President of Delhi High Court Bar Association, moved a resolution in the meeting of the Executive Committee to discuss the merits and de-merits of the applicant's name and opposed his candidature for nomination as a Judge of the High Court by getting the resolution passed against him. Counsel then referred to the alleged verbal duel of applicant and exchange of abuses with one of us, Manmohan Sarin, J then an Advocate. Further, that there was hostility between the applicant and him since 1984. Another factor sought to be urged was that one of us, Manmohan Sarin, J in his days of practice as an Advocate, had been the Advocate for India Today (Living Media). The present owners of NDTV Mrs. Radhika Roy and Mr. Pranav Roy had been closely associated with India Today inasmuch as that India Today had published the book of Mr. Pranav Roy titled 'India Decides'.

9. Reference is next made in the application to the possibility and likelihood of prejudices coming to the mind of the Judge, who in his days of practice, had allegedly handled the cases of the brothers of the applicant on his recommendation and might have been privy to family gossip and thereby prejudice the Judge's mind.

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10. Reliance is placed on a copy of an alleged complaint purportedly made by the applicant to the Prime Minister against his political rival and former Law Minister, who has been accused of misusing his position as a Law Minister in the NDA regime to carry out a tirade against the applicant. Allegations in the complaint are made against the Law Minister for misuse of power and corruption in judiciary including allegation against a former Judge of this Court having retired as Chief Justice. In the said complaint, a passing reference is made to one of us, Manmohan Sarin, J., being part of the coterie of Judges close to the said Judge/Chief Justice. Reference is also made to the arrest of a former Judge of this Court, by CBI in a case of corruption. It is suggested that after the arrest of the Judge media had gone to the house of Justice Sarin for his comments. It is submitted that on account of the aforesaid, Justice Sarin may bear ill will to him.

11. Reference is next made to the case on the civil side in the matter of BMW compensation case where one of us, Manmohan Sarin, J., did not allegedly allow the prayer for withdrawal of the suit of family members of the victims and expressed an opinion against the accused. There is likelihood of pre-conceived notion that accident was caused by a BMW car driven by Sanjeev Nanda, which is likely to have affect on this case. Grievance is also made to the Chief Justice for having marked the case to the present Bench when the Regular Bench declined to take up the matter. Grievance is also made of the appointment of the amices Curiae, who is stated to be hostile to the applicant. Supporting annexures are the alleged complaints made on 8.5.2003 to the Prime Minister and certain news clippings regarding the association of Pranav Roy and Radhika Roy with India Today. Lastly, reference is made to a letter of 8.8.2007 to the Chief Justice of Delhi High Court seeking transfer of case administratively.

12. In the light of the foregoing, Mr. Uday Lalit, learned Senior Counsel, submitted that the applicant has demonstrated that there were background facts suggestive of hostility from 1984 and that the applicant nurtured those feelings not now but even in 2003 and had mentioned the name of Manmohan Sarin, J. in the complaint to the Prime Minister against the Law Minister and the concerned Judge/Chief Justice. He submits that thus, the apprehension of bias nurtured by the respondent could not be said to be unreasonable and following the dictum of Supreme Court in P.K. Ghosh, IAS and Anr. v. J.G. Rajput, reported at that the apprehension was not unreasonable and there was no compelling necessity for the Judge to do the case, a case for recusal was made out. Learned Counsel further submitted that the applicant had come to the Court without delay and it was a bona fide application. It was not a case of any 'bench hunting'. The Court had not expressed any opinion so far on merits and thus, the application for recusal could not be said to be motivated.

13. Learned amices Curiae Mr. Arvind Nigam, has addressed on the application for recusal including the note and the annexures submitted by the applicant. At the outset, learned Counsel submits that the Page 2766 application, note and the annexures thereto contain scandalous and defamatory imputations against persons, who are not party to the proceedings. He submits that the contents of the application and note are in derogation of the law of pleadings, giving a go-by to precision and moderation. He submits that the complaint made by the applicant against his political opponent and a former Law Minister accusing him of misuse of power, engineering corruption and manipulation in judiciary as part of the applicant's own political or other agenda/ambitions, cannot be permitted to be used as a vehicle for defamation and slander of parties, which are not before the Court. He submitted that the prayer made for 'in-camera' proceedings and the submissions of the documents accompanying the note in sealed cover were intended by the applicant to secure protection against himself for an action for defamation. The subject matter of the said complaints was not an issue in these proceedings. He submits that the note, complaint and the documents do not pertain to the matter in issue and were liable to be struck off from the record as unnecessary, frivolous and impeding a fair trial. Relying on Mulla's commentary on Order 6 Rule 16 CPC wherein with regard to scandalous pleadings, it is provided:

Every Court has an inherent power, quite independently of this rule, to strike out scandalous matter in any record or proceedings. 'The court has a duty to discharge towards the public and the suitors, in taking care that its records are kept free from irrelevant and scandalous matter'. 'Scandal is calculated to do great and permanent injury to all persons, whom it affects, by making the records of the court the means of perpetuating libelous and malignant slanders; and the court, in aid of the public morals, is bound to interfere to suppress such indecencies, which may stain the reputation and wound the feelings of the parties and their relatives and friend.

The commentary then goes on to cite the cases where the High Court expunged objectionable passages alleging partiality against a Judge in a Memorandum of Appeal or defamatory allegations in a bail application. Learned amices Curiae also relied on H.P.S. Chawla v. Dr. M.P.S. Chawla reported at DB wherein the Division Bench of this Court expunged portion of the Will which contained scandalous, defamatory and libelous statements by the Testator giving reasons for exclusion of one of the legal heirs from the share in the estate. The expunging of any part of the will was sought to be opposed on the ground that the court either grants a probate to a will or rejects a grant and it was not required to modify the will. The Division Bench upheld the submission of the appellant holding that as a Court of equity, the High Court would be exercising its inherent powers to do justice between the parties and after the High Court was satisfied that the submissions made in the will were scandalous, malignant and defamatory to the calling or esteem of a person, without affecting Page 2767 the bequest or the transfer of the property, the High Court would be well within its jurisdiction to do so.

14. Learned amices Curiae submitted that the Court not only had the inherent power, but also a duty to preserve the purity of its record and to strike out the slanderous and defamatory reference to persons, who were not before it and especially when reference to them were not relevant for the purposes of enquiry before the Court. He submitted that if this note with annexures were allowed to be kept on record, it could cause irreparable damage by persons seeking certified copies of the same and then misusing them. He prayed that the Court be pleased to issue necessary directions and orders in this regard. He submitted that the contents of the note and the documents attached thereto were not only scandalous but also amounted to contempt. He submitted that the applicant in para 13 of the note has stated as under:

That before the case was heard by this Bench, it was known in the Bar that an amices is going to be appointed. The names of four lawyers were in circulation in the Bar. The applicant was quite disturbed by the said information. He contacted a common friend of his and Mr. Justice Manmohan Sarin to find out whether a particular person is going to be appointed as an amices curiae. He brushed aside and laughed at it. It was found to be true when Mr. Arvind Nigam was appointed as amices.

Learned amices Curiae submits that the aforesaid action itself constitutes an admission regarding the attempt to interfere with and impede the administration of justice and the applicant was liable to be proceeded for contempt on this ground also. The contents of the note were even otherwise scandalous. There is merit in the submission of the learned amices Curiae.

15. Before dealing with the submissions of the amices Curiae on the plea of recusal on merits, it may be noticed that there is no quarrel with the propositions and the legal principles enunciated in the judgments referred to earlier on behalf of the applicant that it was not necessary to demonstrate real or actual bias. A reasonable apprehension of bias would suffice. Further, that the matter had to be considered from the litigant's perspective and not only on the Judge's own belief that he would remain impartial and would objectively render justice. The Supreme Court also noted Frank, J's observations that bias impartiality cannot be defined to mean total absence of pre-conception or predilection. Further, there should be a foundation on facts on which the right thinking members would infer a reasonable basis of apprehension of bias. It cannot be illusory or a mere pretence.

16. Learned amices has also relied on the judgments in Ranjit Thakur (supra), P.K. Ghosh (supra), Election Commission of India and Anr. v. Page 2768 Dr. Subramanium Swamy and Anr. reported at . amices also relied on Arundhiti Roy in re Suo Motu contempt petition 2002 (2) SCC 343, Locabail Ltd. v. Bayfield Properties Ltd. and Anr. reported at (2000) 1 All England Reporter 65. Learned amices Curiae in particular, relied on the following passages from Locabail:

(4) In considering whether there is a real danger of bias on the part of a judge everything depends on the facts, which may include the nature of the issue to be decided. However, a judge's religion, ethnic or national origin, gender, age, class, means or sexual orientation cannot form a sound basis of an objection. Nor ordinarily, can an objection be soundly based on the judge''s social, educational service or employment background or that of his family; his previous political associations; his membership of social, sporting or charitable bodies; his Masonic associations; his previous judicial decision; his extra-curricular utterances; his previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or his membership of the same Inn, circuit, local Law Society or chambers.

(1) Where it is alleged that there is a real danger or possibility of bias on the part of a judicial decision- maker, that danger will be eliminated and the possibility dispelled if it is shown that the judge was unaware of the matter relied upon as appearing to undermine his impartiality. Accordingly, in applying the real danger or possibility of bias test, it is often appropriate to inquire whether the judge knew of the matter in question....

17. The application contains only a bald averment that the applicant has a feeling that he is not likely to get justice based on past events and the manner in which the matter is being dealt with, having caused damage to the reputation of the applicant. Learned amices Curiae submits that the allegations in the application are vague. The note lacks factual foundation. As the matter referred to is more than two decades old, records of the Delhi High Court Bar Association were called for. In the year 1988 following were the Office Bearers of the Delhi High Court Bar Association:

  Mr. Justice Arun Kumar, former Judge Supreme
Court of India, then an Advocate               -   President
Mr. Vijay Kishan Makhija                       -   Vice-President
Mr. R.K. Watel                                 -   Honorary Secretary
Mr. Shyam Moorjani                             -   Treasurer
Mr. R.M. Tuffail                               -   Joint Secretary
 

Mr. Manmohan Sarin, Advocate was not even an Office Bearer and was not holding the post of Vice-President and as such there was no question of mis- using the allegedly powerful position to pass any resolution. He was only a first time Executive Committee Member of the Association. The record of resolutions of the Delhi High Court Bar Association shows that the resolution passed by the Executive committee opposing the proposed appointment as a Judge of the High Court was not in respect of the applicant. It concerned an Officer, who was Deputy Legal Adviser, Land Acquisition Department of Delhi Administration, who had not been selected for the post of Additional District Judge but as per the information available, his Page 2769 name was being proposed for appointment as a High Court Judge. The Executive Committee having found the proposed appointment to be shocking and revolting, in an emergent meeting on 24th November, 1988, passed a resolution, opposing the said appointment. Record of the Delhi High Court Bar Association shows that subsequently, a proposal was mooted to discuss the candidature of other aspirants on merits also. Mr. R.M. Tufail, Joint Secretary, desired to present a draft of a resolution in respect of the applicant against whom, he had several complaints. The Executive Committee resolved to permit the same. However, Mr. R.M. Tufail subsequently did not pursue the matter or draft the resolution informing that he did not have proof of the allegations and the matter was dropped. No such resolution, as alleged, or otherwise, is on record or was forwarded to the Government. Hence, it is totally wrong to suggest that Manmohan Sarin, Advocate, as Vice President of the Delhi High Court Bar Association, had moved the resolution and opposed the candidature of the applicant. He was neither the Vice President nor had moved any such resolution.

18. The allegation of any unpleasant fight or hurling of abuses as sequel thereto is wholly false. There is no basis of any hostility from 1984 or any time thereafter or relations being inimical. There is no basis for nurturing any ill will. The averment in the application 'Applicant has tried his best to have cordial relations with him (Manmohan Sarin, J.) but his conduct as a Judge hearing the instant case has fortified his belief of applicant that old hostility is still prejudicing the mind of Mr. Manmohan Sarin. It seems stars of both do not match.' Fortunately, our jurisprudence does not either contemplate or envisage such matching of stars, which deserve to be deprecated as the basis for seeking recusal. In the proceedings before the Bench after authentication of the video/audio recordings and hearing them, the Bench has only directed initiation of contempt proceedings and called upon the applicant to show cause against it. It is the applicants own submission that there has been no adjudication on merits. Therefore, there is no occasion to give rise to any apprehension or fortification of alleged old hostility. The averments regarding the stars not matching seems to suggest that the applicant's desire is to have his matter heard where he perceives his stars match.

19. The allegation of alleged possible bias on account of said Radhika Roy and Pranav Roy having been associated with India Today and having now joined NDTV is to say the least, preposterous. Living Media or India Today were just one of the clients of Manmohan Sarin, then an Advocate, who was engaged on a case to case basis. The present lis is contempt proceedings initiated against the respondent and not a lis between the applicant and NDTV. Rather, the amices Curiae has been directed to address the Court on the role of NDTV for action in accordance with law.

20. The apprehension of possible bias on account of family gossip due to Manmohan Sarin, Advocate, conducting cases of the brothers of the applicant is again wholly misconceived. The applicant was not a party to any of those proceedings concerning his cousins and relations wherein the Chairman of Gabriel group of companies and his brothers and sisters Page 2770 were the affected parties. The applicant was not a party to those proceedings and none of the litigation had any connection whatsoever with the applicant.

21. It is not necessary for the Bench to join issue on the complaint made by the applicant against his political and other rivals at the Bar except to state that the relationship of Manmohan Sarin, Advocate and now a Judge, has been a formal one with the said persons as with the applicant. The alleged complaint of the applicant to the Prime Minister wherein the name of one of us, Manmohan Sarin, J., is mentioned as one of the Judges among others, being close to Judge/Chief Justice complained against. This complaint was not known to Manmohan Sarin, J. Copy of the complaint does not carry any endorsement of it being endorsed to persons named. Accordingly, the dictum of Locabail's case regarding the Judge not being aware of the grievance or complaint would apply in the present case. Similarly, the Bench is not concerned with the allegations that may have been made against the persons mentioned in the complaint in relation to a former Judge of this Court.

22. There is considerable merit in the submission of the learned amices curiae that the note and the annexure contain defamatory and scandalous imputations against third parties and are not relevant for the matter in issue. Some of the averments and imputations are bordering contempt. The innuendo in the suggestion of media having gone to the residence of Manmohan Sarin, J., who was the Judge-In-Charge (Original Side), upon the arrest of a former Judge are wholly unwarranted. At the relevant time, Justice Sarin was out of town in Shillong conducting the proceedings of a Tribunal under the Unlawful Activities (Prevention) Act, 1967.

23. In the present application, the request for recusal is being dealt with as such it is not proposed to take any action for contempt, save to direct that the scandalous and defamatory imputations in the note and complaint and the innuendos made therein, shall not be permitted to be used/cited for any purpose other than for this recusal application. The note and the annexures be kept in a sealed cover. Certified copies of the note and annexures would not be made available to any third parties save the applicant and that too only for the purposes of legal remedies, if any, to be availed and be re-sealed thereafter.

24. The averment that in the BMW case in spite of admission made by family members for withdrawal of the suit, Manmohan Sarin, J. did not allow the withdrawal of the suit, is contrary to record. The application and payment of compensation was duly allowed. Directions were given for deposit of the amount in Court. The applicant wanted an admission in the application for withdrawal from an injured victim, who was being compensated that the accident was not caused by the BMW car but by a truck. The Court only ruled 'the disposal of the suit pursuant to the settlement reached between the parties shall not be taken as acceptance of any of the averments and contention of the parties. It shall not have any bearing or effect on the criminal proceedings in relation to the incident.' The said decision was not challenged by the appellant and the suggestion Page 2771 that the criminal Court is to come to an independent finding as being indicative of bias of the Presiding Officer, has only got to be stated to be rejected.

25. It is not necessary to deal in detail with the scandalous and defamatory allegations contained in the note and the annexures thereto except to state that it is an invidious attempt of the applicant to somehow create a factual foundation when none exists for the purposes of his recusal application. Applicant's attempt appears to be to make a grievance out of anything and everything. One fact which completely demonstrates and exposes the falsity and hollowness of the averments of the applicant's so called hostility from 1984-88 till date is the fact that the applicant as a Senior Counsel, with a wide flourishing practice, has been regularly appearing and arguing numerous cases before the Bench of Justice Manmohan Sarin in Single Bench as well as in the Division Bench right from 1995 till the present application was made, without even a murmur or whisper or protest. Had there been any ill will, hostility or prejudice, apprehension of bias thereof or for that matter, suspicion of bias, applicant would not have been regularly appearing before the Bench and getting orders, both favorable and unfavorable without seeking even once recusal from the Bench or expressing its dissatisfaction in the last 12 years. This cuts at the very root of the Applicant's case for recusal. The present application thus, appears to be an attempt at forum hunting or the desire to 'match stars'.

26. The applicant's assertion of the case being conducted in undue haste is mis-conceived and contrary to record. The listing of the matter on 16th August, 2007 and 20th August, 2007 was on account of miscellaneous applications. In the present case, notice had been issued only after ascertaining full facts from NDTV by Hon'ble the Chief Justice on 31.5.2007 and the matter had been assigned to the Bench presided over by the undersigned on 4.7.2007. The Bench over six hearings and after viewing the CDs and due authentication of the recordings, passed the order on 7.8.2007. Hence, it cannot be said that there was any undue haste in issuance of notice to initiate contempt. The applicant and another Senior Advocate were present on 31.7.2007. However, the present application had been moved belatedly on 3rd September, 2007 i.e., after passing of the order on 7th August, 2007. The applicant could have moved the application for recusal immediately after the assignment of the case.

27. There is no factual basis or any foundation for nurturing any apprehension of bias, leave aside any reasonable basis therefore, which is altogether missing. The genesis of the alleged hostility is claimed to be misusing of position as Vice President of Delhi High Court Bar Association by moving and passing a resolution against the candidature of applicant. This has been found to be false as noted in para 17. there was, thus, no question of any altercation as alleged or otherwise with the applicant. Besides, these allegations relate to remote decisions of the Bar Associations and no such inference of possible or likelihood of apprehension of bias can be drawn. Reference may usefully be made to Locabail's case (supra).

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28. The path of recusal is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favor affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting/Bench preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfillling the oath of office.

29. Regarding the approach to be adopted when confronted with allegations of bias, hostility and unjustified criticism, one is reminded of the words of Lord Denning while holding that contempt jurisdiction should be sparingly used. The observations in R. v. Metropolitan Police Commissioner ex p. Blackburn (1968) 2 All England reporter 319:

All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticism. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of critic, nothing which is said by this person or that nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.

This impels me to hold that invidious and motivated attempts at Bench hunting or brow-beating the Court need to be firmly dealt with and not permitted. In such a situation, it is the duty of the Judge to bear the 'cross' unflinchingly and unmindful of consequences, act with rectitude and sobriety, upholding judicial integrity by discouraging such attempts while retaining the objectivity, will and determination to do justice.

In view of the foregoing discussion, the prayer for recusal is declined. Application is dismissed.

30. With deference to the decision of my very learned and far more experienced brother; which I have had the privilege of reading in draft; and with respect, I regret that I find myself unable to concur. I do so with great diffidence in view of the fact that the nature of the controversy before us pertains to my learned brother alone. It revolves around a number of factual assertions, which can only be known to my learned brother personally, and which must necessarily be examined in the light of the law on the subject. Therefore, I consider it inappropriate to express any opinion in the matter, one way or the other.