Himachal Pradesh High Court
Tejinder Singh vs Sonia Pasricha Rt on 29 November, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
Cr. Appeals No. 423 to 425 of 2022
Reserved on: 18.10.2023
Decided on: 29.11.2023
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1). Cr. Appeal No.423 of 2022
Tejinder Singh
of
...Appellant
Versus
Sonia Pasricha rt ...Respondent
_____________________________________________________
2). Cr. Appeal No.425 of 2022
Tejinder Singh
...Appellant
Versus
Sonia Pasricha ...Respondent
_____________________________________________________
Tejinder Singh
...Appellant
Versus
Sonia Pasricha ...Respondent
_____________________________________________________
Coram
Hon'ble Mr. Justice Sushil Kukreja, Judge
Whether approved for reporting?
_____________________________________________________
For the appellant(s): Mr. R.L. Sood, Senior Advocate with
Mr. Atul Jhingan and Mr. Arjun Lall,
Advocates in all the appeals.
Whether reporters of Local Papers may be allowed to see the judgment?
For the respondent(s): Mr. Ajay Kochhar, Senior Advocate with
Mr. Vivek Sharma, Advocate in all the
.
appeals.
Sushil Kukreja, Judge
As the point in issue in all these appeals is common,
hence, these are being taken up together for discussion and
of
deciding the point involved therein.
2. Appellant Tejinder Singh preferred three separate
rt
appeals, laying challenge to the judgments of acquittal dated
17.09.2022, passed by learned Judicial Magistrate First Class,
Court No.7, Shimla, H.P., in three separate complaints filed by him
under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as "NI Act").
3. Briefly stated the facts, which emerge from the record,
are that complainant Tejinder Singh (appellant herein in these
appeals) filed three separate complaints against accused Sonia
Pasricha (respondent herein in these appeals) under Section 138
of the NI Act, for dishonouring of three cheques issued by the
accused in favour of the complainant. As the accused did not have
requisite balance in her bank account, hence, the said cheques
were dishonoured and thereafter when she failed to make the
payments, the complainant filed three separate complaints under
.
Section 138 of the NI Act against her.
4. The learned trial Court, after conclusion of trial,
dismissed all the three complaints filed by the complainant and
acquitted the accused-respondent of the offence under Section
of
138 of the NI Act by three separate judgments. Aggrieved against
the said judgments of acquittal, the appellant-complainant
rt
preferred the instant appeals.
5. All these appeal were heard by this Court on
24.07.2023 and thereafter when these came to be listed on
18.10.2023, learned Counsel for the respondent, on the
instructions received from respondent Sonia Pasricha, who was
present in person, orally submitted that this Court should recuse
from these matters as the Division Bench (DB), comprising Shri
Vivek Singh Thakur, J. and myself (Sushil Kukreja, J.), had
recused from the matter being FAO (FC) No.12 of 2023, in which
the present appellant Tejinder Singh was one of the parties.
Learned counsel further submitted that he had got full faith in this
Hon'ble Court, but on the instructions of the respondent, the prayer
for recusal was made.
6. On the other hand, learned Senior Counsel for the
.
appellant objected to the oral prayer made on behalf of respondent
Sonia Pasricha and submitted that such prayer of the respondent
could not be accepted and, if she wanted this Court to recuse, an
application, supported with an affidavit, should have been filed by
of
her assigning a valid reason for recusal from these matters.
7. Before I proceed further, it may be pertinent to mention
rt
here that these cases came up before me for arguments on
24.07.2023, on which date, the arguments were heard and the
judgments were reserved. However, to clear certain ambiguities,
these cases were fixed for re-arguments and till then no request
was made to me that I should recuse from these matters for any
reason whatsoever, including the fact that the Division Bench,
comprising Shri Vivek Singh Thakur, J. and myself had recused
from the matter being FAO (FC) No.12 of 2023, in which the
present appellant Tejinder Singh was one of the parties. It is not
the case of the respondent that she was not aware at the time of
hearing the arguments about the fact that the Division Bench,
comprising of Shri Vivek Singh Thakur, J. and myself, had recused
from the matter in which the present appellant was one of the
parties. If on account of such fact, she had any doubt with regard
.
to my independence and capacity to do justice in these cases,
nothing prevented her from making such a request before the
commencement of arguments or at the time of the arguments.
However, for the reasons best known to the respondent, she had
of
not made any such request at that stage.
8. Asking a Judge to recuse himself by a party or litigant
rt
is required to be viewed very seriously, unless by such request,
certain issues are brought to the notice of the Judge taking up the
matter, which disqualifies him from taking such matter due to some
personal or private interest, relationship with the party/parties to
the lis etc. The issue of recusal is considered by the Ho'ble
Supreme Court in a catena of judgments. In R.K. Anand Versus
Registrar, Delhi High Court, (2009) 8 SCC 106, the Hon'ble
Supreme in paras- 255, 261 & 263 held as under:-
"255. Of all the obstructive measures adopted before
the High Court the most unfortunate and undesirable came
from RK Anand in the form of a petition `requesting' Manmohan
Sarin J., the presiding judge on the bench dealing with the
matter, to recuse him from the proceeding. This petition, an ill
concealed attempt at intimidation, was, as a matter of fact, RK
Anand's first response to the notice issued to him by the Court.
He stated in this petition that he had the feeling that he was not
likely to get justice at the hands of Manmohan Sarin J. He
further stated alluding to some past events, that he had tried his
best to forget the past and bury the hatchet but the way and the
manner in which the matter was being dealt with had caused
the greatest damage to his reputation. He made the prayer that
.
the recusal application should be heard in camera and the main
matter be transferred to another bench of which Sarin J. was
not a member. Along with the petition he filed a sealed cover
containing a note and the materials giving rise to the belief that
he was not likely to get justice at the hands of Sarin J.
-------- -------- --------
261. As regards the complaint to the Prime Minister in
which Sarin J. was said to be a member of the alleged coterie
around the Chief Justice, Sarin J. commented that until a copy
of
of the complaint was filed with the recusal application he was
not even aware of it.
------ ------- --------
rt263. In the order the concerned judge further
observed:
"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 favour
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 fulfilling the oath of
office."
The above passage, in our view, correctly sums up
what should be the Court's response in the face of a request for
recusal made with the intent to intimidate the court or to get
better of an `inconvenient' judge or to obfuscate the issues or
to cause obstruction and delay the proceedings or in any other
way frustrate or obstruct the course of justice."
9. In Kamini Jaiswal Versus Union of India and
another, (2018) 1 SCC 156, the Hon'ble Supreme in para- 29 held
as under:-
"29. Yet another disturbing feature which aggravates
the situation is that prayer has been made, that one of us,
Justice A.M. Khanwilkar, should recuse from the matter. This
is nothing but another attempt of forum hunting which cannot
be permitted. Rather this kind of prayer was held to be
contemptuous, aggravating the contempt in the case of Dr.
.
D.C. Saxena. This is yet another strategy to succeed in the
attempt that the Hon'ble Chief Justice of India should not take
up the matter himself in the judicial side and administrative
side for what may apply to and hold good for one of us will be
equally applicable to Hon'ble Chief Justice of India. Though it
was submitted that there is no allegation against Justice A.M.
Khanwilkar but since he decided the matter of medical college
with respect to which FIR has been lodged, he should recuse.
In our opinion, rather it is the duty of the Bench to take up
of
such matter firmly; such unscrupulous allegations and
insinuations cannot be allowed to be hurled by oral prayer
made on behalf of the petitioner for recusal. This is simply
deprecated and we find that it is another attempt to bring the
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system in disrepute, casting of unwarranted aspersions
tantamounts to seriously jeopardizing the independence of the
judiciary."
10. In Indore Development Authority Versus Manohar
Lal and others, (2020) 6 SCC 304, the Hon'ble Supreme in paras
31 to 34 held as under:-
"31. Recusal has been prayed for on the ground of legal
predisposition. Where recusal is sought on the ground, various
questions arise for consideration. Firstly, legal predisposition is
the outcome of a judicial process of interpretation, and the
entire judicial system exists for refining the same. There is
absolutely nothing wrong in holding a particular view in a
previous judgment for or against a view canvassed by a litigant.
No litigant can choose, who should be on the Bench. He cannot
say that a Judge who might have decided a case on a
particular issue, which may go against his interest
subsequently or is part of a larger Bench should not hear his
case. Furthermore, if a party or his counsel can at length argue
on the question of recusal of the Judge before him, he can also
successfully question the correctness of a judgment rendered
by him. A litigant has got the right to make arguments which
suit his cause before a Judge/Judges having taken a contrary
view earlier. Moreover, if it is open to one litigant to seek
recusal and recusal is permitted, then the right has to be given
to the opposite party to seek recusal of a Judge who may have
decided a case against his interest. In case it is permitted to
either side, that would end judicial independence. Then parties
will be choosing Benches to their liking. In that case, the
.
Judges holding a view can be termed to be disqualified. In case
the submission of recusal is accepted, the Judges having either
side view, cannot hear the matter and have to recuse from
hearing. In that case to find neutral Judges would be difficult to
find and that would be subvert to the very concept of
independent judicial system. If litigants are given the right to
seek recusal of a Judge on the ground that in a smaller Bench,
a view has been taken by the Judge, the correctness of which
has to be decided by the larger Bench, which includes the
of
same Judge, then on a parity of reasoning recusal might be
sought on the ground of the Judge having taken a view one
way or the other even in a different case in which similar issues
are involved if the Judge has decided similar issues earlier, in
rt
the same court or in a different court. This would open the
floodgates of forum shopping. Recusal upon an imagined
apprehension of legal predisposition would, in reality amount to
acceding to the request that a Judge having a particular view
and leanings in favour of the view which suits a particular
litigant, should man the Bench. It would not only be allowing
Bench hunting but would also be against the judicial discipline
and will erode the confidence of the common man for which the
judicial system survives.
32. The question that comes to the mind is whether one
of us should recuse in order to prevent the embarrassment
caused to a Judge by a member of the Bar, by seeking his
recusal. Recusal would be the easiest way to solve it. On the
other hand, a larger question arises. If request for recusal on
the ground of legal predisposition in the form of a judgment is
acceded to, that would destroy the very edifice of an
independent judicial system.
33. The entire judicial system is based on sound
constitutional principles. The roster-making power is bestowed
on the Chief Justice of India so that litigants are not able to
choose the Judges before whom they have to argue a matter,
and he is a constitutional functionary who has been enjoined
with this task at the highest pedestal to exercise the power of
roster-making. He is the repository of faith. Once he has
exercised his power, it is not for the Judges to choose. As per
their oath, they have to discharge their duties without fear and
favour and in a dispassionate manner without any ill will, bias
towards litigants, or a cause. The question which arises is
whether merely delivering a judgment of which correctness is to
be examined, would disqualify a Judge from being part of the
larger Bench. The answer to the question has to be in the
negative as there is a consistent practice of this Court which
has evolved that the Judges who have rendered a decision
.
earlier in smaller combination, have also formed part of the
larger Bench, and there are umpteen occasions as mentioned
above when Judges have overruled their own view. In Liteky,
the United States Supreme Court has held that rather it may be
advantageous to have them on a Bench hearing the matter as
judgments are rendered after hearing the arguments of the
learned counsel for the parties. There is always a scope to
further develop the law and to correct the errors, and this can
better be done by having Judges on the Bench, who have
of
earlier rendered judgments with respect to the subject-matter:
to which of the parties the view taken suits, is not relevant.
34. If requests for recusal are acceded to for the asking,
litigants will be unscrupulously taking over the roster-making
rt
powers of the Chief Justice and that would tantamount to
interference with the judicial system, by the mighty to have a
particular Bench by employing several means and putting all
kinds of pressures from all angles all around. It is the test of the
ability of the judicial system to withstand such onslaught made
from every nook and corner. Any recusal in the circumstances
is ruled out, such prayer strengthens the stern determination
not to succumb to any such pressure and not to recuse on the
ground on which recusal is sought because for any reason,
such a prayer is permitted, even once, it would tantamount to
cowardice and give room to big and mighty to destroy the very
judicial system. Moreover, recusal in such unjustified
circumstances, would become the norm."
11. In the cases on hand, coming to the submission of the
learned Senior Counsel for respondent Sonia Pasricha that I
should recuse from these cases as the Division Bench comprising
Shri Vivek Singh Thakur, J. and myself had recused from the
matter being FAO (FC) No.12 of 2023, in which the present
appellant Tejinder Singh was one of the parties, in my view, it is not
a plausible reason for me to accede to the request of the
respondent. I do not know either of the parties to the lis and I have
got no personal interest in these matters or in the outcome of the
.
same. The recusal by the Division Bench comprising Shri Vivek
Singh Thakur,J. and myself (Sushil Kukreja, J.), in the case in
which the present appellant Tejinder Singh was one of the parties,
is no ground to have any imagined apprehension in the mind of
of
respondent Sonia Pasricha that I would deal with these cases with
a bias against her.rt
12. As a Judge of this Court, I owe my allegiance to the
constitution of India and the law of the land. As a Judge, while
assuming office, I have taken oath as prescribed under Article 219
read with Third Schedule 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,"
13. I have taken oath to do my duties faithfully and to the
best of my ability, knowledge and judgment and to perform the
duties of my office without fear or favour, affection or ill-will and in a
dispassionate manner without any bias towards litigants, or a
cause. I am fully conscious of my responsibilities as a Judge of this
Court. I have no particular interest in any particular case that is
.
listed before me as per roster. As observed earlier, I would have
recused myself from these cases at the initial stage itself, had such
request been made before me on that day itself when the said
cases were listed for arguments. But the learned Senior Counsel
of
representing respondent Sonia Pasricha never raised the said
issue at any stage of the hearing and proceeded to advance his
rt
submissions without any objection. Although, there is no
justification for, or reasonableness in entertainment of any such
request for recusal by the respondent, yet to maintain the integrity
of the principle, "justice should not only be done, but should
manifestly and undoubtedly be seen to be done" and also to uphold
the highest standards of judicial ethics, I hereby recuse myself
from hearing these cases.
14. Hence, the Registry is directed to list these cases
before the appropriate Bench, after obtaining necessary approval
from Hon'ble the Chief Justice.
( Sushil Kukreja )
November 29, 2023 Judge
(VH)
