S.P. Choudhary vs Central Bureau Of Investigation
2022 Latest Caselaw 134 MP

                               1



     THE HIGH COURT OF MADHYA PRADESH
                   M.Cr.C.No.62237/2021


Jabalpur Dated : 04.01.2022
Mr. Bhavesh Parmar and Mr. Ajay V. Gupta, Ld. Counsels for
the petitioners.

Mr. J.K. Jain, Ld. Assistant Solicitor General for the
respondent/CBI.

The present petition invokes the inherent jurisdiction

of this Court in conjunction with section 407 Cr.P.C, for the

transfer of Criminal Appeal Nos. 100366, 100364, and

100365 all of the year 2010 along with the appeal filed by

the CBI, being Criminal Appeal No.100487/2010, pending

before the Court of the Ld. Sessions Judge Bhopal, to any

other Court. They are aggrieved by the impugned order

dated 30/11/2021 whereby an application for recusal and

transfer moved by the Petitioners herein was heard and

rejected by the Ld. Sessions Judge.

2. The Ld. counsel for the petitioner has raised three issues

before this Court, which according to him was not referred

and considered to by the Ld. Court below. They are ; (I)

where, the Supreme Court lays down a test for bias, the Ld.

Judge failed to apply the test and answer the same, one way

or the other. (II) there has been no reference by the Ld.

Court of Sessions to paragraph no.10 of the judgment of

the Supreme Court in A.U. Kureshi Vs. High Court of

Gujarat and another reported in (2009) 11 SCC 84 and

- (III) the Ld. Court below did not pass any finding on the

nature of the prejudice that would be caused to the CBI if

the case was transferred to any other Sessions Court.

3. The three appeals mentioned hereinabove are preferred by

the petitioners herein against the order dated 7.6.2010

passed by the Ld. CJM Bhopal in RCT 8460/1996. By the

said order the petitioners have been found guilty and

convicted for an offence under section 304-A IPC simplicitor

and suffer a sentence of two-years rigorous imprisonment.

The Central Bureau of Investigation has also filed a

criminal appeal for enhancement of sentence /punishment

awarded to the petitioners. All these appeals are pending

before the Ld. Sessions Judge, Bhopal.

4. The Ld. counsel for the petitioners have submitted that the

petitioners have a reasonable apprehension of bias on the

part of the Ld. Sessions Judge as earlier, she occupied on

deputation, the office of the Deputy Commissioner of the

Welfare Commission under the Bhopal Gas Leak Disaster

(Procession of Claims Act 1985) and in that capacity, she

was entrusted with responsibility of registration and

acceptance of compensatory claims for death, disability,

injuries etc., of the survivors of the 1984 gas disaster. The

grounds on which bias was apprehended by the petitioners

herein are that the Ld. Sessions Judge, having been a party

to the discussion at the highest level and on all aspects of

the Bhopal Gas Tragedy, including the cause for the same

and while dealing with the victims of Bhopal Gas Tragedy

as Deputy Welfare Commissioner, would have seen human

suffering and loss from close quarters for a long period of

time. Before the Ld. Court below, the petitioners relied upon

a catena of judgments, most notable amongst them being

A.U. Kureshi Vs. High Court of Gujarat and other (2009)11

SCC 84.

5. The Ld. Court below referred to these judgments and culled

out the broad principles, which have been laid down in

these cases. According, it opined that the Supreme Court

held that a) no one can act in a judicial capacity if his

previous conduct gives ground for believing that he cannot

act with an open mind. b) no man can be a judge in his own

cause and justice should not only be done but manifestly

be seen to be done, c) the scale should not only be held even

but they must not even be seen to be inclined, d) a person

having interest in the subject matter of the cause is

precluded from acting as Judge and e) to disqualify a

person from adjudicating on the ground of interest in the

subject matter of lis, the test of real likelihood of bias is to

be applied. The Court went on to observe that one has to

enquire as to whether there is a real danger of bias on the

part of the person against whom such apprehension is

expressed. The Ld. Court below has also taken into

consideration the opposition of the Central Bureau of

Investigation and thereafter dismissed the application for

recusal and fixed the next date of hearing on 6.1.2022.

6. It would be relevant to mention here that these appeals are

now in the 22nd year and are at the stage of final hearing. It

would also be necessary to state here that this Court, vide

memo dated 18.10.2021 and 24.10.2021, has directed the

Trial Courts to ensure disposal of the 25 oldest cases

pending before them. This Court further directed that these

cases may be taken up on a day-to-day basis and a weekly

report in respect of the progress of the trial be dispatched

on every Friday to the High Court.

7. The principal submission of the Ld. counsel for the

petitioners is that the Ld. Sessions Judge, having

discharged the function of the Deputy Commissioner of the

Welfare Commission under the Bhopal Gas Leak Disaster

(Processing of Claims Act, 1985), had an opportunity to be

involved in the disbursement of compensation to those

affected by the Gas leak and in the said process, has

experienced human pain and destitution of the victims of

the tragedy. It is also apprehended that while working in

the said capacity the Ld. Sessions Judge may have had

gained personal knowledge of the facts and circumstance

leading to the accident, the proceedings before the Ld. Trial

Court, the evidence drawn by the parties etc., and

therefore, may not be in a position to objectively assess the

grounds taken in the appeal. He has referred to the

judgment of A.U. Kureshi supra with specific reference to

paragraph 10 wherein, the Supreme Court held that it is an

accepted principle of natural justice that a person should

not be a Judge in his/her own cause. The proposition arises

from the Latin maxim Nemo debet esse judex in

propria sua causa and is one of the precepts of natural

justice, on the basis of which the observations of the

Supreme Court was passed.

8. This Court feels it necessary to briefly refer to the factual

aspects of the judgment passed by the Supreme Court in

A.U. Kureshi's case. In that case the High Court of Gujarat,

which was the respondent before the Supreme Court,

received a complaint wherein it was alleged against the

appellant A.U. Kureshi that in a criminal case under the

Gambling Act, he had passed an order acquitting the

accused and returned the money that was seized from the

accused at the scene of occurrence. On the basis of the

complaint, the High Court of Gujarat issued a charge sheet

to the appellant and a departmental enquiry initiated

thereafter, found him guilty as charged and a show cause

notice was issued to him, the reply to the same being found

unsatisfactory, the High Court dismissed him from service.

In paragraph 7, the Supreme Court recorded the fact that

one of the members of the disciplinary committee of the

High Court of Gujarat, which dealt with the appellant's

appeal was also the same Judge who heard his special civil

application on the judicial side. The Supreme Court further

recorded that this fact was not contested by the counsel

appearing for the respondent High Court.

9. A judgment passed by the Supreme Court is not an

enchanted shoe fitting all sizes. The ratio has to be culled

from the case and appreciated in the backdrop of the facts

of that case. The inferior Court must assess whether the

observations made by the Supreme Court were broadly on

the facts and circumstances of the particular case before it

or, was the intention of the Supreme Court to lay down an

indelible proposition of law having binding precedential

value. In 2002, a three-judge bench of the Supreme Court

held "Courts should not place reliance on decisions

without discussing as to how the factual situation fits

in with the fact situation of the decision on which

reliance is placed. Observations of courts are not to be

read as Euclid's theorems nor as provisions of the

statute. These observations must be read in the context

in which they appear. Judgments of courts are not to

be construed as statutes. To interpret words, phrases

and provisions of a statute, it may become necessary

for Judges to embark upon lengthy discussions but the

discussion is meant to explain and not to define. Judges

interpret statutes, they do not interpret judgments..."1.

10. Therefore, the observation of the Supreme Court in

paragraph 10 of A.U. Kureshi's case, must be seen in the

context of the contents of paragraph 7 of that judgement.

In that case one of the Judges in the disciplinary committee

had previous prior knowledge of the specific facts and

circumstances relating to the alleged misdemeanor by the

appellant A.U. Kureshi. This knowledge was gained by that

Judge while sitting on the judicial side where he heard the

case of the appellant. Therefore, the Judge who was sitting

in the disciplinary committee already had made up his

mind after having decided the special civil application

no.6164/2002 filed by A.U. Kureshi on the judicial side. In

Haryana Financial Corporation Vs. Jagdamba Oil Mills - (2002) 3 SCC 496 - paragraph

such a situation the same Judge sitting in the disciplinary

committee to adjudicate on the administrative side on the

very same facts and allegations which he had previously

seen on the judicial side, one could safely hold that

objectivity could have been compromised and, therefore, an

element of bias was writ large.

11. Ld. counsel for the petitioner has thereafter referred to the

judgment of the Supreme Court in Ranjit Thakur Vs

Union of India, 1987 (4) SCC 611, in which the Supreme

Court held in paragraph 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". This case reached the Supreme Court

on account of a Court martial proceeding. The

officer who had earlier punished the delinquent

employee and against whom the appellant had sent

representation complaining ill -treatment, was the

same officer who again framed charges against the

appellant and constituted the summary Court

martial proceedings of which, he himself was part

of along with two others. The factual aspects of this

case also reveals that the degree of personal

knowledge was so high and so directly relevant to

the factual aspects of the case to be decided against

the adverse/affected party, that the authority

should have recused himself from the case of the

Petitioner (before the Supreme Court) .

12. However, it is to be seen whether these judgments

would be applicable in the facts of the present case.

The apprehension of the petitioners, as stated

earlier hereinabove, is only on the ground that the

Ld. Sessions Judge had earlier served as a Deputy

Commissioner of the Welfare Commission under

the Bhopal Gas Leak Disaster (Processing of Claims

Act, 1985). Not a s ingle instance has been given as

to what were those facts which may have been dealt

with by the Ld. Sessions Judge in the aforesaid

capacity as Deputy Commissioner of the Welfare

Commission, which are also the issues directly

related to the Criminal Appeals pending hearing.

Nowhere has it been alleged that the Ld. Sessions

Judge ever acquired knowledge of the specific facts

and circumstances, the allegations against the

petitioners, and the law involved, while occupying

the office of the Deputy Commissioner of the

Welfare Commission. Undisputedly, in th at

capacity, the only duty of the Ld. Sessions Judge

was to disburse the compensation to those affected

by the Gas Tragedy. She was not required to look

into the circumstances leading to the Gas Tragedy

or to the cases that arose therefrom , or to the

conviction handed down to the petitioners by the

Ld. trial Court. Those aspects woul d now be looked

into by the Ld. Sessions Judge while hearing the

Criminal Appeals. Besides, the Ld. Sessions Judge

left the office of the Deputy Commissioner of the

Welfare Commission under the Bhopal Gas Leak

Disaster (Processing of Claims Act, 1985) in the

year 2004 and between 2004 and 2021, the Ld.

Sessions Judge has never been associated with the

functioning of the Welfare Commission in any

capacity.

13. Terms like "bias" and "reasonable suspicion" have

the tendency to be amorphous and no rule of thumb

can be applied for defining them. However, it may

safely be said that the test must be one of a

reasonable person and the same does not apply to

one who indulges in flights of fantasy, where

suspicion is based on unreasonable , untenable and

incomprehensible grounds. If the contention of the

Ld. Counsel for the Petitioners is accepted, there is

no judge available in State of Madhya Pradesh who

is ignorant of the 1984 tragedy and has not felt the

human pain associated with it. However, that does

not mean that the judge has lost the ability to be

objective while discharging his/her judicial

function and that bias would sweep over the ability

of the judge to be dispassionate. The

dispassionateness of a judge is always the

presumption an d the apprehension of bias to

dislodge that presumption, must be based on

proximate and palpable cause not obscure and

remote speculations.

14. In this particular case, merely because the Ld.

Sessions Judge had officiated in the aforesaid

capacity fifteen years before, without there being

any specific instances or allegations against the Ld.

Sessions Judge, which may raise an apprehension

of bias or suspicion in the mind of a reasonable

man, the allegation s of bias are downright

preposterous and dismissed as such by this Court.

15. The contention of the Ld. counsel for the

petitioners that the fear of bias expressed by the

petitioners, has not been disputed by the Ld.

Sessions Judge is of no consequence as the

presumption is always one of fairness and the

absence of bias . It is for the person alleging bias

and predisposition to bring on record such material

on the basis of which a reasonable inference may

be drawn, which in this particular case, it was

never done. Ld. Counsel for the petitioners has also

drawn the attention of this Court to the order dated

22.12.2021 passed in this petition , by another co-

ordinate bench, who recused himself from hearing

this M.Cr.C. only on the sole ground (as so stated

by the petitioners) that he too was a part of the

Bhopal Gas Commission at one point of time. In

the opinion of this Court, the rec usal was not

required for the reasons hereinabove, but

abundans cautela if the Ld. Co-ordinate bench had

thought it otherwise, the same has to be respected.

16. As regards the arguments put forth by the Ld.

counsel for the petitioners regarding lack of

prejudice to the C.B.I the same was not required to

be gone into, as the bias itself in the first instance,

has not been found by this Court on the part of the

Ld. Sessions Judge. Therefore, merely the absence

of any kind of prejudice being caused to the C.B.I.,

is not a reason to allow the present petition .

17. Under the circumstances, in view of what has been

argued and considered hereinabove, this petition

sans substance and is hereby dismissed. The Trial

Court is requested to proceed with the hearing of

the appeal and conclude the same as expeditiously

as possible.

(Atul Sreedharan) Judge ss/a

Digitally signed by SHYAMLEE SINGH SOLANKI Date: 2022.01.10 19:29:29 +05'30' Adobe Reader version: 11.0.8