Narinder Singh Arora vs State (Govt. Of Nct Of Delhi) & Ors

Narinder Singh Arora .............. Appellant

versus

State (Govt. of NCT of Delhi) and Ors. ...........Respondents

O R D E R

H.L. Dattu, J.

Leave granted.

1) The present appeal, by way of special leave, is directed

against the Judgement and Order dated 01.09.2010 of the

High Court of Delhi in Criminal Revision No. 555 of 2003

whereby the High Court has dismissed the revision petition

preferred by the appellant against the Judgment and Order dated

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22.03.2003 passed by Learned Additional Sessions Judge in

Sessions Case No. 104 of 2001.

2) Since we intend to remand the matter to the

High Court for fresh disposal, it is not necessary to go into the

factual matrix. Suffice to state that the appellant had filed a

complaint against the respondents dated 24.11.1988 which was

registered as FIR No. 393 of 1988 at P.S.- Srinivaspuri, New

Delhi. Subsequently, the charges were framed against the

respondents under Sections 498-A, 304-B read with Section-34

and Section 302 of the IPC by Shri. Prithvi Raj, learned

Additional District & Sessions Judge dated 15.05.1995.

Thereafter, the case was listed before Shri. S.N. Dhingra,

Additional Sessions Judge for the trial, however, the learned

Judge had recused from hearing the matter for personal reasons

vide Order dated 25.09.2000. The said Order is extracted

below:

"25-09-2000

Present:- Spl. P.P. for the State

All the accused on bail.

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For personal reason I do not want to try this case. The

case be sent to Ld. Sessions Judge, Delhi for marking it

to some other court.

Put up on 11-10-2000 to find out to which court case

has been allocated.

A.S.J. New Delhi

25-09-2000"

3) Accordingly, the case was withdrawn from the Court of Shri.

S.N. Dhingra, Additional Sessions Judge and transferred to the

Court of Shri. S.M. Chopra, Additional Sessions Judge vide the

Order dated 29.09.2000 of the Sessions Judge. Eventually the

accused respondents were tried and acquitted vide Judgment

and Order dated 22.03.2003 passed by Ms. Manju Goel,

Additional Sessions Judge. Being aggrieved by the Judgment

and Order, the appellant preferred a revision petition before the

High Court. The same was dismissed vide impugned final

Judgment and Order dated 01.09.2010 passed by learned Judge,

Shri. Justice S.N. Dhingra.

4) It is apparent that the fact of earlier recusal of the case at

the trial by learned Shri Justice S.N. Dhingra himself, was not

brought to his notice in the revision petition before the High

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Court by either of the parties to the case. Therefore, Shri

Justice S.N. Dhingra, owing to inadvertence regarding his

earlier recusal, has dismissed the revision petition by the

impugned Judgment. In our opinion, the impugned Judgment,

passed by Shri Justice S.N. Dhigra subsequent to his recusal

at trial stage for personal reasons, is against the principle of

natural justice and fair trial.

5) It is well settled law that a person who tries a cause

should be able to deal with the matter placed before him

objectively, fairly and impartially. No one can act in a judicial

capacity if his previous conduct gives ground for believing

that he cannot act with an open mind or impartially. The broad

principle evolved by this Court is that a person, trying a cause,

must not only act fairly but must be able to act above suspicion

of unfairness and bias. In the case of Manak Lal v. Dr. Prem

Chand Singhvi, AIR 1957 SC 425, it was observed:

"5. ... every member of a tribunal that [sits to]

try issues in judicial or quasi-judicial

proceedings must be able to act judicially; and

it is of the essence of judicial decisions and

judicial administration that Judges should be

able to act impartially, objectively and without

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any bias. In such cases the test is not whether

in fact a bias has affected the judgment; the

test always is and must be whether a litigant

could reasonably apprehend that a bias

attributable to a member of the tribunal might

have operated against him in the final decision

of the tribunal. It is in this sense that it is often

said that justice must not only be done but must

also appear to be done."

6) In the case of A.K. Kraipak v. Union of India, (1969) 2

SCC 262, this Court, while discussing the rule of bias, has

observed:

"15. ... At every stage of his participation in the

deliberations of the Selection Board there was a

conflict between his interest and duty. Under

those circumstances it is difficult to believe that

he could have been impartial. The real question

is not whether he was biased. It is difficult to

prove the state of mind of a person. Therefore

what we have to see is whether there is

reasonable ground for believing that he was

likely to have been biased. ... In deciding the

question of bias we have to take into

consideration human probabilities and ordinary

course of human conduct."

7) In the case of S. Parthasarathi v. State of A.P., (1974) 3

SCC 459, this Court has applied the "real likelihood" test and

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restored the decree of the trial court which invalidated

compulsory retirement of the appellant by way of punishment.

This Court observed:

"16. ... We think that the reviewing authority

must make a determination on the basis of the

whole evidence before it, whether a reasonable

man would in the circumstances infer that there

is real likelihood of bias. The court must look at

the impression which other people have. This

follows from the principle that justice must not

only be done but seen to be done. If right-minded

persons would think that there is real likelihood

of bias on the part of an inquiring officer, he

must not conduct the enquiry; nevertheless, there

must be a real likelihood of bias. Surmise or

conjecture would not be enough. There must

exist circumstances from which reasonable men

would think it probable or likely that the

inquiring officer will be prejudiced against the

delinquent. The court will not inquire whether he

was really prejudiced. If a reasonable man

would think on the basis of the existing

circumstances that he is likely to be prejudiced,

that is sufficient to quash the decision...."

8) In the case of G. Sarana (Dr.) v. University of Lucknow,

(1976) 3 SCC 585, this Court had referred to the judgments of

A.K. Kraipak v. Union of India (Supra) and S. Parthasarathi

v. State of A.P. (Supra) and observed:

6 "11. ... the real question is not whether a

member of an administrative board while

exercising quasi-judicial powers or discharging

quasi-judicial functions was biased, for it is

difficult to prove the mind of a person. What has

to be seen is whether there is a reasonable

ground for believing that he was likely to have

been biased. In deciding the question of bias,

human probabilities and ordinary course of

human conduct have to be taken into

consideration."

9) In the case of Ranjit Thakur v. Union of India, (1987) 4 SCC

611, this Court has held:

"15. ... 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 whether Respondent 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

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biased?'; but to look at the mind of the party

before him."

10) In the case of Secy. to Govt., Transport Deptt. v. Munuswamy

Mudaliar, (1988) Supp. SCC 651, this Court considered the

question as to whether a party to the arbitration agreement

could seek change of an agreed arbitrator on the ground that

being an employee of the State Government, the arbitrator

will not be able to decide the dispute without bias. While

reversing the judgment of the High Court, which had

confirmed the order of the learned Judge, City Civil Court

directing the appointment of another person as an arbitrator,

this Court observed:

"12. Reasonable apprehension of bias in the

mind of a reasonable man can be a ground for

removal of the arbitrator. A predisposition to

decide for or against one party, without proper

regard to the true merits of the dispute is bias.

There must be reasonable apprehension of that

predisposition. The reasonable apprehension

must be based on cogent materials. See the

observations of Mustill and Boyd, Commercial

Arbitration, 1982 Edn., p. 214. Halsbury's

Laws of England, 4th Edn., Vol. 2, para 551,

p.282 describe that the test for bias is whether a

reasonable intelligent man, fully apprised of all

the circumstances, would feel a serious

apprehension of bias."(emphasis supplied)

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11) In the case of R. v. Camborne JJ, ex p Pearce, (1955) 1 QB

41, the Divisional Court of the Queen's Bench Division, after

reviewing a large number of authorities including R. v.

Sussex JJ, ex p McCarthy ( Supra) held:

"In the judgment of this Court the right test is

that prescribed by Blackburn, J., namely, that to

disqualify a person from acting in a judicial or

quasi-judicial capacity upon the ground of

interest (other than pecuniary or proprietary) in

the subject-matter of the proceeding, a real

likelihood of bias must be shown. This Court is

further of opinion that a real likelihood of bias

must be made to appear not only from the

materials in fact ascertained by the party

complaining, but from such further facts as he

might readily have ascertained and easily

verified in the course of his inquiries.

12) In the case of R. v. Gough, (1993) 2 All ER 724 (HL), the

House of Lords while applying the "real likelihood" test, by

using the expression "real danger", has observed thus:

"... In my opinion, if, in the circumstances of the

case (as ascertained by the court), it appears that

there was a real likelihood, in the sense of a real

possibility, of bias on the part of a justice or other

member of an inferior tribunal, justice requires

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that the decision should not be allowed to stand. I

am by no means persuaded that, in its original

form, the real likelihood test required that any

more rigorous criterion should be applied.

Furthermore the test as so stated gives sufficient

effect, in cases of apparent bias, to the principle

that justice must manifestly be seen to be done,

and it is unnecessary, in my opinion, to have

recourse to a test based on mere suspicion, or

even reasonable suspicion, for that purpose."

13) In view of the aforesaid facts and reasons, we set

aside the impugned Judgment and Order dated 01.09.2010 of

the High Court in Criminal Revision No.555 of 2003 and

remand the matter to the High Court for fresh disposal of the

revision petition filed by the appellant in accordance with law.

We clarify that we have not expressed any opinion on the

merits of the case. Ordered accordingly.

..................................................J.

[ H. L. DATTU ]

.......................................J.

[ CHANDRAMAULI KR. PRASAD ]

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New Delhi,

December 05, 2011.

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