Whether it is sufficient to merely allege an apprehension of bias that therefore, justice will not be done and judge must recuse himself from hearing the case?

Can a litigant level ruthless and baseless allegations seeking recusal from hearing by a judge and be permitted to get away without suffering any consequences?

IN THE HIGH COURT OF DELHI AT NEW DELHI

CORAM: HON’BLE MS. JUSTICE GITA MITTAL AND HON’BLE MR. JUSTICE P.S.TEJI

04th November, 2016

Crl.M.A.No.15239/2016 in CRL.A. No.715/2013 Crl.M.A.No.15233/2016 in CRL.A. No.753/2013 Crl.M.A.No.15236/2016 in CRL.A. 1099/2013

Crl.M.A.No.15239/2016 in + CRL.A. No.715/2013 MAHENDER YADAV ….. Appellant Through: Mr. Vikas Singh, Senior Advocate with Mr. Vikas Arora, Mr. Radhika Arora, Mr. Manish Sharma, Advocates. versus CENTRAL BUREAU OF INVESTIGATION … Respondent Through: Mr. R.S. Cheema, Senior Advocate (SPP) with Mr. D.P. Singh, Ms. Tarannum Cheema, Ms. Hiral Gupta, Mr. Manu Mishra & Mr. Harinder Bains, Advocates for CBI. Mr. H.S. Phoolka Senior Advocate with Ms. Kamna Vohra, Ms. Shilpa Dewan, Advocates for the Complainant. Mr.Gurbaksh Singh & Mr. Lakhmi Chand, Advocates for victim Jagsher Singh. Crl.M.A.No.15233/2016 in + CRL.A. No.753/2013 KRISHAN KHOKAR ….. Appellant Through: Mr. Vikas Arora, Ms. Radhika Arora & Mr. Manish Sharma, Advocates. versus CBI ….. Respondent Through: Mr. R.S. Cheema, Senior Advocate (SPP) with Mr. D.P. Singh, Ms. Tarannum Crl.A.Nos.715/2013, 753/2013 & 1099/2013 Page 1 of 140 Cheema, Ms. Hiral Gupta, Mr. Manu Mishra, Mr. Harinder Bains, Advocates for CBI. Mr. H.S. Phoolka Senior Advocate with Ms. Kamna Vohra & Ms. Shilpa Dewan, Advocates for the Complainant. Mr.Gurbaksh Singh & Mr. Lakhmi Chand, Advocates for victim Jagsher Singh. Crl.M.A.No.15236/2016 in + CRL.A. 1099/2013 STATE THROUGH C B I ….. Appellant Through: Mr. R.S. Cheema, Senior Advocate with Mr. D.P. Singh, Ms. Tarannum Cheema, Ms. Hiral Gupta, Mr. Manu Mishra, Mr. Harinder Bains, Advocates for CBI. Mr. H.S. Phoolka Senior Advocate with Ms. Kamna Vohra & Ms. Shilpa Dewan, Advocates for the Complainant. Mr.Gurbaksh Singh & Mr. Lakhmi Chand, Advocates for victim Jagsher Singh. versus SAJJAN KUMAR & ORS ….. Respondents Through: Mr. Salman Khurshid, Senior Advocate with Mr. Anil Kumar Sharma, Mr. S.A. Hashmi, Mr. Apoorav Kumar Sharma, Mr. Salman Hashmi, Mr. Anuj Sharma, Advocates for Respondent No. 1.

JUDGMENT

Gita Mittal and P.S. Teji JJ.

“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.”- (Lord Denning in

R. v. Metropolitan Police Commissioner ex p. Blackburn, (1968) 2 All England Reporter 319

1. By the following judgment we propose to decide applications filed under Section 482 of the CrPC, one by Sajjan Kumar being Crl.M.A. 15236/2016 in Crl.A. 1099/2013 seeking recusal by one of us (P.S. Teji J.) from hearing the appeal and applications filed by Krishan Khokhar and Mahender Yadav being Crl.M.A. 15233/2016 in Crl.A. 753/2013 and Crl.M.A. 15239/2016 in Crl.A. 715/2013 respectively seeking transfer of the matters to another bench of which one of us (P.S. Teji J.) is a member.

We propose to decide the issues pressed before us in the following manner :

Per Gita Mittal and P.S. Teji, JJ.

I. Result of trial and brief history of the appeal (paras 2 to 19)

II. Judicial duty (paras 20 to 37)

III. Submissions of the applicants (paras 38 to 39)

IV. Whether it is sufficient to merely allege an apprehension of bias that therefore, justice will not be done and judge must recuse himself from hearing the case? (paras 40 to 52)

V. Reasonable apprehension of bias – tests (paras 53 to 72)

VI. Consideration of the applications on merits (para 73)-Per P.S. Teji, J. (paras 74 to 117)- Per Gita Mittal, J. (paras 118 to 214)

(i) Grounds on which the applications are premised (paras 119 to 130)

(ii) Order on anticipatory bail application dated 15 th February, 2010 – whether a binding adjudication on merits (paras 131 to 139)

(iii) Whether the order dated 15th February, 2010 disposing the applications for anticipatory bail is a final adjudication binding even on the trial judge or any other court seized of the matter at a later stage (paras 140 to 156)

(iv) Consideration of a preliminary objection on territorial jurisdiction by the order dated 27 th March, 2010 – Whether tantamount to a “definite view” on the merits of the case (paras 157 to 173)

(v) “Definite opinion on material issues”; “proceedings during trial” or “dealt with the matter at the stage of trial” – whether made out? (paras 174 to 192)

(vi) When can an order in a case be treated as expressing a final opinion or definite opinion on issues arising therein justifying transfer of the case? (paras 193 to 199)

(vii) Whether assertion that “dealt with case/trial” borne out by record? (paras 200 to 212)

(viii) No objection to trial by my ld. Brother even today (paras 213 to 214) VII. No apprehension of bias expressed by the life convicts (paras 215 to 221)

VIII. Impact of filing these applications and granting of prayers in the application (paras 222 to 223)

IX. Effect of statement dated 19th September, 2016 by counsels for Mahender Yadav and Krishan Khokhar (para 224 to 240)

X. Can a litigant level ruthless and baseless allegations seeking recusal from hearing by a judge and be permitted to get away without suffering any consequences? (paras 241 to 259)

XI. Conclusion (para 260)

XII. Result

I. Result of trial and brief history of the appeal

2. Six persons had been sent up for trial in the trial case bearing SC No.26/10 arising out of RC 24/2005-SIU-1/SIC-1/CBI/N.D., namely, Sajjan Kumar, Balwan Khokhar, Mahender Yadav, Capt. Bhagmal, Girdhari Lal and Krishan Khokar.

3. In the same trial, by a common judgment dated 30th April, 2013, the trial court has convicted them for separate offences and they have been differentially sentenced by the order dated 9 th of May 2013. For expediency, we extract hereunder the undisputed tabulation as handed over by Mr. R.S. Cheema, learned Senior Counsel for the CBI setting out the convictions and sentences :

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