Request for Recusal – Withdrawing from a case merely on a party’s request allows parties to cherry-pick a bench of their choice.
Before :- B. Pugalendhi, J.
Crl. OP. (MD) Nos. 7655 & 7656 of 2016 and Crl.A.(MD) Nos. 373 & 374 of 2017. D/d. 30.07.2020.
Anshul Mishra – Petitioner
Versus
The District Collector, Madurai District – Respondents
For the Appellant in Crl. A.(MD) Nos. 373 & 374 of 2017 and R1 for Crl.OP.(MD) Nos.7655 & 7656 of 2016 :- K.K. Ramakrishnan, Additional Public Prosecutor.
For the R2 & R3 in Crl.OP.(MD) No.7655 of 2016 :- P. Anbu Selvam, Advocate.
For the R2 in CRL OP(MD) No. 7656 of 2016 :- M. Sivasankar, Advocate.
For the R1 & R2 in CRL. A.(MD) No. 373 of 2017 :- K.P.S. Palanivelrajan, Advocate.
For the Respondent either in person or through by an advocate in CRL.A.(MD). No.374 of 2017 :- None.
IMPORTANT
Request for Recusal – Withdrawing from a case merely on a party’s request allows parties to cherry-pick a bench of their choice.
A. Criminal case – Request for Recusal – No Counsel is expected to step into shoes of a Client – Duty of a Counsel to place facts of case and relevant legal propositions on facts of case to assist Court to arrive a just conclusion on case – Withdrawing from a case merely on a party’s request allows parties to cherry-pick a bench of their choice – Therefore, plea of recusal rejected.
[Para 21]
B. Criminal Procedure Code, 1973 Section 309 Adjournment – Adjournments shall not be merely to delay course of justice with deliberate intention and that would amount to gross improper conduct of a lawyer – Since present matters involve arguments of several Counsel, plea of adjournment allowed.
[Para 32]
@CASEREF = Cases referred :- Court On Its Own Motion v. State, Cri Misc No. 9955 of 2007 in WP (Cri) No. 796 of 2007 (Del). D/d. 4.10.2007.
Indore Development Authority v. Manohar Lal.
Joginder Singh Wasu v. State of Punjab.
R.K. Anand v. Delhi High Court, (2009) 8 SCC 106 : (2010) 2 SCC (Cri) 563.
Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470.
2. Mr. Shanmugaraja Sethupathi, learned Counsel submitted that he was the Counsel on record for the respondents/accused in Crl.OP.(MD)Nos.7655 & 7656 of 2016 and he has given change of vakalath and is not appearing for the respondents/accused in these petitions any further.
3. Mr. P. Anbuselvan, learned Counsel entered appearance for the respondents 2 & 3 in Crl.OP.(MD)No.7655 of 2016 and has filed a memo as follows:
- “I am getting instructions from my client M/s.PRP Exports and PRP Granites that your Lordship has already appeared in several cases as against my client in the capacity as Special Government Pleader and as Additional Advocate General on various dates and also appeared as Counsel for Mr.Anshul Mishra, the then Madurai District Collector, during the period 28.05.2012 to 07.07.2013.
- Cases, wherein your Lordship appeared on behalf of Police as well as the Madurai District Authority and it includes criminal and writ cases, which are summarized hereunder:
|
Sl. No. |
Case No. |
Subject |
Respondents |
Order Date |
|
1 |
W.P.(MD) No.12441 & 12442 of 2012 |
Declaring that the action of the Respondents in sealing the petitioner factory and others |
1. The Chief Secretary |
02.11.2012 |
|
2 |
W.P.(MD) No.5040 & 5041 of 2013 |
To challenge the Suspension orders (2 Nos) |
1. The Industries Secretary |
23.04.2013 |
|
3 |
SLP(C) No.18662 & 18663 of 2013 |
SLP on sealing the petitioner factory and others |
1. The Chief Secretary |
09.12.2013 |
|
4 |
W.P.(MD) No.3012 to 3017, 3427 to 3432, 6238 of 2013 |
To challenge the Show Cause Notices (13 Nos) |
The District Collector, Madurai |
02.09.2014 |
|
5 |
W.P.(MD) Nos. 5100 to 5112 of 2013 and 6232 to 6234 of 2013 |
To challenge the Deemed Lapse Notice (16 Nos) |
1. The Industries Secretary |
02.09.2014 |
|
6 |
W.P.(MD) No.2016 & 2017 of 2013 and 15584 & 15585 of 2014 |
Alleged unauthorized storage of granite blocks |
1. The Industries Secretary |
05.11.2014 |
|
7 |
W.P.(MD) No.20226 & 20227 of 2014 |
Directing the Respondent to Defreeze the bank accounts and lift cargo |
The Deputy Superintendent of Police, PEW, Madurai |
22.12.2014 |
|
8 |
W.A.(MD) No.1505 to 1517 of 2014 |
To challenge writ order relating to Show Cause Notices (13 Nos) |
The District Collector, Madurai |
23.12.2014 |
|
9 |
W.A. (MD) No. 4 & 5 of 2015 |
Directing the Respondent to Defreeze the bank accounts and lift cargo |
The Deputy Superintendent of Police, PEW, Madurai |
29.01.2015 |
|
10 |
W.P.(MD) No.20226 & 2027 of 2014 |
Directing the Respondent to Defreeze the bank accounts and lift cargo |
1. The Deputy Superintendent of Police, PEW, Madurai |
16.03.2018 |
- I submit that we are always have high regards and respect to this Hon’ble Bench.
- On 02.12.2019 in Crl.OP.(MD)No.2898/2017 in which P. Palanichamy (R10) of P.R.P.Exports was listed. On our specific mentioning, your Lordship was kind enough and posted the same before some other Judge after getting appropriate orders.
- However, it is our solemn duty to bring to the notice of this Hon’ble Court that your Lordship has already appeared as against the petitioner in various proceedings and thus render justice.”
4. Mr. P. Anbuselvan, learned Counsel submitted that since this Court, on earlier occasions, as a Special Government Pleader and as an Additional Advocate General, has appeared for the State and against the respondents, his clients are not having confidence with this Court and therefore, requested to post this case to some other Court.
5. Mr. M. Shivasankar, learned Counsel represented that he has been instructed to appear for the second respondent/private respondent in Crl.OP.(MD)No.7656 of 2016 and undertook to file vakalath for the second respondent in this criminal original petition and sought for a short accommodation.
6. Mr. K.P.S.P alanivel Rajan, learned Counsel entered appearance on behalf of the respondents in Crl.A.(MD)No.373 of 2014 and made a similar submission that since this Court has already appeared as against the respondents in some other proceedings, as a Special Government Pleader and as an Additional Advocate General, his clients are not having confidence with this Court and therefore, requested to post the appeal before some other Court. Mr.K.P.S.Palanivel Rajan, learned Counsel has also submitted that he filed an application under Section 309 Cr.P.C., 1973 assigning certain grounds, for adjournment and requested for a direction to the Registry to number the said application and decide the same.
7. Insofar as the appeal in Crl.A.(MD) No. 374 of 2017 is concerned, there is no representation for the respondent.
8. Mr. T. Antony Arulraj, learned Counsel for the petitioner in Crl.OP.(MD) Nos.7655 & 7656 of 2016 submitted that he is ready to proceed with the matter.
9. Mr. K.K. Ramakrishnan, learned Additional Public Prosecutor appearing for the State submitted that the appeals have been filed by the State as against the orders of acquittal passed by the trial Court and the learned State Public Prosecutor is appearing for the State in these appeals. Therefore, he requested to list these matters on 17.08.2020, as it would be convenient for the learned State Public Prosecutor.
10. Heard the learned Counsel appearing for the respective parties.
11. Mr. P. Anbuselvan, learned Counsel, has raised a plea for recusal of this Court, as his clients are not having confidence with this Court. Mr.K.P.S.Palanivel Rajan, learned Counsel, apart from raising this plea for recusal, has made yet another submission to entertain the application filed under Section 309 Cr.P.C., 1973 for an adjournment.
Request for Recusal:
12. When these matters were listed for hearing before this Court on 22.07.2020, the very same plea, as has been raised by Mr. P. Anbuselvan, learned Counsel and Mr.K.P.S.Palanivel Rajan, learned Counsel was raised by Mr.Shanmugaraja Sethupathi, the then learned Counsel on record for the respondents in Crl.OP.(MD)Nos.7655 and 7656 of 2016.
13. At that juncture, it was brought to the knowledge of this Court by the learned Additional Public Prosecutor that this Court, as a Special Government Pleader and as an Additional Advocate General, has appeared before the Hon’ble Supreme Court as well as this Court in certain writ petitions pertaining to Granite related issues and has neither appeared in these petitions nor appeared in any criminal appeals pending before the Court in connection with these respondents/accused. This Court has also verified with the docket entries in the order sheets of the present petitions as to whether this Court had, at any point of time, appeared in any of the proceedings pending before this Court, but no such proceeding was available in the order sheets. In fact, it is the learned State Public Prosecutor, who has been authorised by a Government Order to represent the appeals.
14. A very same plea, but with a different colour, has been raised today that this Court, as Special Government Pleader and an Additional Advocate General, appeared on behalf of the State and against the respondent in some other proceedings, in the earlier occasions.
15. This Court fails to understand the merit in this plea. An Additional Advocate General or a Special Government Pleader means an Advocate appointed by the Government to conduct such case, as may be entrusted to him, for and on behalf of the State in the Courts. The Government, based on merit and other things, hires some Advocates, as Law Officers to represent them before various Courts of law, for which, personal motive cannot be attributed to such Advocates. As a Special Government Pleader and as an Additional Advocate General, if this Court represented the State, it simply mean that this Court represented the Government against the opposite party, in the official capacity.
16. As has been held by the Hon’ble Supreme Court in the case of Joginder Singh Wasu v. State of Punjab, the Advocate General and his Law officers are basically engaged to deal with the cases before the High Court by the State Government and that the relationship between the Government and Law Officers is that of a client and counsel. As any other Counsel, the Government Counsel are also representing the case of the Government in the respective case. No Counsel is expected to step into the shoes of a Client. It is the duty of a Counsel to place the facts of the case and the relevant legal propositions on the facts of the case to assist the Court to arrive a just conclusion on the case. Mere because this Court has represented several Government Bodies, as Government Counsel, that by itself cannot be a bar for this Court from taking up any case filed by the Government or against the Government.
17. As per Article 219 of the Constitution of India, every person appointed to be a Judge of a High Court shall, before he enters upon his office, make and subscribe before the Governor of the State, or some person appointed in that behalf by him, an oath or affirmation, according to the form set out for the purpose in the Third Schedule. Accordingly, at the time of swearing-in as Judges of this Chartered Institution, we have solemnly affirmed that we will bear true faith and allegiance to the Constitution of India as by law established, that we will uphold the sovereignty and integrity of India, that we will duly and faithfully and to the best of our ability, knowledge and judgment, perform the duties of our office without fear or favour, affection or ill-will and that we will uphold the Constitution and the laws.
18. The Hon’ble Chief Justice of the Madras High Court has assigned the portfolio – i) Criminal Appeals (including Appeals relating to Crime against Women and Children) and Criminal Revision – upto the year 2017 – (All Stages); and ii) CBI and Prevention of Corruption Act Cases (Except Bail and Anticipatory Bail Applications) – (All Stages) to this Court for this spell, w.e.f 06.07.2020. Therefore, as per the roster assigned by the Hon’ble Chief Justice of Madras High Court, this Court is to deal with the present Criminal Appeals.
19. When the Criminal Original Petitions were listed for hearing before the Hon’ble Mr. Justice M. Nirmalkumar, (the then portfolio Judge) on 10.02.2020, it was represented by the learned Additional Public Prosecutor that it would be appropriate to take up the Criminal Original Petitions along with the connected Criminal Appeals in Crl.A.(MD)Nos.373 & 374 of 2017, for better appreciation and to avoid conflict of orders. Therefore, the learned Judge has directed the Registry to list the Criminal Original Petitions along with the connected Criminal Appeals before the concerned Court, after getting appropriate orders from the Hon’ble Administrative Judge.
20. Accordingly, the Registry has placed an Office Note before the Hon’ble Administrative Judge, soliciting orders as to the posting of these Criminal Original Petitions and Criminal Appeals, for which, the Hon’ble Administrative Judge, by order dated 17.07.2020, has nominated this Court to hear both the Appeals as well as Original Petitions.
21. This Court has not even started hearing the merits of the matter, but, has simply adjourned the matter to today to fix a date for hearing. Even before commencing the arguments, such a plea has been raised, not once, but twice. Withdrawing from a case merely on a party’s request allows the parties to cherry-pick a bench of their choice. If this plea of the respondents is entertained and this Court recuses itself from hearing, such an act, in the minds of this Court, is a breach of the solemn responsibility vested upon this Court by the Constitution, apart from deviating the roster allotted by the Hon’ble Chief Justice of Madras High Court as well as the Administrative order of the Hon’ble Administrative Judge of the Madurai Bench of Madras High Court.
22. At this juncture, this Court feels it relevant to refer to some of the incidents, where such plea for recusal was raised recently.
23. The Hon’ble Supreme Court, in Subrata Roy Sahara v. Union of India, reported in (2014) 8 SCC 470, has held as follows:
- “10. We have recorded the above narration, lest we are accused of not correctly depicting the submissions as they were canvassed before us. In our understanding, the oath of our office required us to go ahead with the hearing. And not to be overawed by such submissions. In our view, not hearing the matter, would constitute an act in breach of our oath of office, which mandates us to perform the duties of our office, to the best of our ability, without fear or favour, affection or ill will.
-
- 11. This is certainly not the first time when solicitation for recusal has been sought by the learned counsel. Such a recorded peremptory prayer was made by Mr R.K. Anand, an eminent Senior Advocate, before the High Court of Delhi seeking the recusal of Mr Justice Manmohan Sarin from hearing his personal case. Mr Justice Manmohan Sarin while declining the request made by Mr R.K. Anand, observed [
Court On Its Own Motion v. State, Cri Misc No. 9955 of 2007 in WP (Cri) No. 796 of 2007, order dated 4-10-2007 (Del)
- ] as under:
-
- “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
- 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 determination of the High Court of Delhi was assailed before this Court in R.K. Anand v. Delhi High Court [(2009) 8 SCC 106 : (2010) 2 SCC (Cri) 563]. The determination of the High Court whereby Mr Justice Manmohan Sarin declined to withdraw from the hearing of the case came to be upheld, with the following observations: (SCC p. 192, para 263)
- “263. 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.”
(emphasis supplied)
In fact, the observations of the High Court of Delhi and those of this Court reflected exactly how it felt, when the learned counsel addressed the Court at the commencement of the hearing. If it was the learned counsel’s posturing antics, aimed at bench-hunting or bench-hopping (or should we say, bench-avoiding), we would not allow that. Affronts, jibes and carefully and consciously planned snubs could not deter us from discharging our onerous responsibility. We could at any time during the course of hearing walk out and make way for another Bench to decide the matter, if ever we felt that that would be the righteous course to follow. Whether or not it would be better for another Bench to hear this case will emerge from the conclusions, we will draw, in the course of the present determination.”
24. In 2018, in the Judge Loya case, when the petitioners sought the recusal of Hon’ble Mr.Justice A.M. Khanwilkar and Hon’ble Mr.Justice D.Y. Chandrachud from the Bench, stating that they both hailed from the Bombay High Court, the Hon’ble Supreme Court refused the request and called it a “wanton attack”. Recusal, the court observed, would mean abdication of duty and it further observed that maintaining institutional civilities are distinct from the fiercely independent role of the judge as adjudicator.
25. In a Public Interest Litigation regarding the plight of inmates in Assam’s detention centres, when the petitioner sought the recusal of the then Hon’ble Chief Justice of India, viz., Hon’ble Mr.Justice Ranjan Gogoi, His Lordship has held that a litigant cannot seek recusal of the judge. The Court has further observed that Judicial functions, sometimes, involve performance of unpleasant and difficult tasks, which require asking questions and soliciting answers to arrive at a just and fair decision. If the assertions of bias as stated are to be accepted, it would become impossible for a judge to seek clarifications and answers.
26. When a similar issue for recusal was raised before the Constitution Bench, where Hon’ble Mr.Justice Arun Mishra was a party, in
Indore Development Authority v. Manohar Lal, in an issue related to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, His Lordship has observed thus:
- “44. Recusal is not to be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse. The embarrassment of hearing the lengthy arguments for recusal should not be a compelling reason to recuse. The law laid down in various decisions has compelled me not to recuse from the case and to perform the duty irrespective of the consequences, as nothing should come in the way of dispensation of justice or discharge of duty as a Judge and judicial decision making. There is no room for prejudice or bias. Justice has to be pure, untainted, uninfluenced by any factor, and even decision for recusal cannot be influenced by outside forces. However, if I recuse, it will be a dereliction of duty, injustice to the system, and to other Judges who are or to adorn the Bench/es in the future. I have taken an informed decision after considering the nitty gritty of the points at issue, and very importantly, my conscience. In my opinion, I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse.”
27. Since the Counsel have referred that on an earlier occasion, this Court has recused from taking up a Criminal Original Petition in Crl.OP.(MD)No.2898 of 2017, by order dated 02.12.2019, this Court verified with the order dated 02.12.2019. In fact, in the month of December, 2019, after the Division Bench work, this Court has been assigned with the portfolio – Criminal Original Petition (u/s 482 & 407 of Cr.P.C.); and Writ Petitions (Cr.P.C.) (All Stages) of the year 2017. By order dated 02.12.2019, in Crl.OP.(MD) No.2898 of 2017, this Court has passed an order to post the matter before some other Court. But, there is no reason assigned in that order and it is very difficult to recollect under what circumstances this Court has passed the order to post the case before some other Court. Just because this Court has passed such an order on an earlier occasion in another proceedings, that by itself cannot be a ground to make out such a plea in all the cases and as observed by the Hon’ble Supreme Court, it would be a wanton attack and it would be an abdication of duty. The parties approaching the Courts are filing petitions based on the legal principles and the Courts are deciding the issue on the principles of law and this Court cannot shy away from it’s duty on the whims of certain parties.
28. In the earlier occasion, when similar such plea was made by the respondents, this Court, after verifying all the records, has also made it clear that this Court has never appeared in any of these present proceedings. Even then, the same submission has been made again. Moreover, in the memo filed by Mr.Anbuselvan, learned Counsel (extracted supra), he has referred to some other proceedings between the respondents and the Government in the Writ Court and has not stated that this Court, either as a Special Government Pleader or as an Additional Advocate General, has appeared in any of the present proceedings pending before this Court.
29. In such view of the matter and also following the authoritative pronouncements of the Hon’ble Supreme Court, this Court rejects the plea for recusal, raised by the respondents, for the second time.
Adjournments:
30. The then Hon’ble Chief Justice of Madras High Court, M.Y. Eqbal, J., has wrote a book, titled, “Adjournments”, detailing where and where not such adjournments have to be provided. His Lordship has opined that Adjournments are like fire in the present justice delivery system and if we sit with out back towards it, then for sure, in future we shall be sitting on our blisters.
31. His Lordship has further observed that Law, without lawyer, loses its locomotion; lawyer, without law, misses its function. The lawyer is also called an Office of Justice, apart from Officer of the Court and that is why, legal profession is said to be one of the highly esteemed professions. In the matter of asking adjournments, His Lordship noted, it is the moral of the Advocate to see that such adjournments shall not be merely to delay the course of justice with deliberate intention and that would amount to gross improper conduct of a lawyer.
32. Since the present matters involve the arguments of several Counsel, in order to ascertain a convenient date, this Court has also expressed it’s view in granting an adjournment. Even then, Mr. K.P.S. Palanivel Rajan, learned Counsel reiterated his plea for a direction to number the application under Section 309 Cr.P.C., 1973 that was filed yesterday. When the contents of the application filed in the said petition were asked for, the learned Counsel, instead of referring the same, has reiterated the very same stand. In the absence of any such compelling reasonings being put forth in the open Court, this Court is not inclined to direct the Registry to number any petition and it is left open to the Registry to number the petition, if it is in accordance with law.
33. A plea for recusal was raised consequently, by the same party, but by a different Counsel. When the earlier Counsel raised the plea for recusal, this Court rejected the same and posted the matters today for fixing a date for hearing. Now, a different set of Counsel entered appearance and are making the very same plea. Though such a conduct warrants some observations, this Court refrains from doing so. But, before parting, this Court feels it appropriate to refer to a decision of a Full Bench of this Court, in the matter of First Grade Pleader, Vellore, reported in AIR 1931 Madras 422, wherein, it has been as follows:
- “It is not the duty of a legal practitioner blindly to follow every instruction of his client. That is an entire misapprehension of the duty of a legal practitioner. He has not only got a duty towards his client but he has got a duty towards the Court, and it is his duty to see that the case is fairly and honestly conducted. He must not trick or deceive the Court or attempt to gain for his client an advantage by dishonest means. To attempt to obtain adjournments by misre presentations and to put forward a purpose which the legal practitioner knows will never be carried out is to attempt to gain, and to gain an advantage, by a trick and a very dishonest one too.”
34. Mr. Arul Vadivel @ Sekar, the earlier Counsel on record for the respondents in Crl.A.(MD) Nos.373 & 374 of 2017 submitted that the respondent has collected the bundles and he has also gave no objection for change of vakalath. Though Mr. K.P.S. Palanivel Rajan, learned Counsel has entered appearance for the respondents/accused in Crl.A.(MD)No.373 of 2014, there is no representation for the respondent/accused in Crl.A.(MD) No.374 of 2017. Therefore, Registry is directed to print the name of the respondent in Crl.A. (MD)No.374 of 2017 in the cause list and post these matters on 06.08.2020, so as to fix a date for hearing, based on the convenience of all the Counsel. In the meantime, the learned Additional Public Prosecutor representing the State, being the appellant, is permitted to take a private notice to the respondent/accused in Crl.A.(MD) No.374 of 2017 informing the date of hearing as 06.08.2020.
.
