IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO 44 of 2011 Date of Order 27th May ,2011 ________________________________________________________ Hem Raj ….Petitioner. Versus State of H.P. ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ________________________________________________________ For the Petitioner: Mr. Ajay Kumar Sood, Advocate. For the Respondent: Ms. Shubh Mahajan, Deputy Advocate General. ______________________________________________________________ Dev Darshan Sud, J (oral) This petition has been filed by the petitioner praying for transfer of his case titled State vs. Hem Raj from the Court of the learned Special Judge (Additional Sessions Judge), Mandi. The petitioner is in jail and the allegation made is that he had engaged the services of Mr. Naresh Kumar Sood, an Advocate from Kullu as defence counsel. On 28th March, 2011, his counsel, Mr.N.K. Sood, had gone to Shimla to attend the Ruby Jubilee function of the High Court and also to attend the meeting of the 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 Bar Council of Himachal Pradesh and therefore, an application was filed before the learned Judge praying that the case may be adjourned to some other date as his counsel is not able to attend the Court on the date fixed. 2. The application was taken up on 28.3.2011 and the learned Judge after noticing the contents of the application, which is hand written, granted the adjournment. Thereafter, he goes on to record that the proceedings be instituted against Advocate Shri N.K. Sood before the Bar Council of High Court for disciplinary action, in terms of the judgments of the Supreme Court in N.G. Dastane vs. S.S. Shukla AIR 2001 SC 2028 and State of U.P. vs. Shambhu Nath Singh AIR 2001 SC 1403 that no adjournment should be granted when the prosecution witnesses are present. 3. Looking to the observations in their entirety, the petitioner has expressed his reasonable apprehension of bias. The pleading is that when the learned Judge has become the complainant and directs the institution of disciplinary proceedings against the Advocate before the Bar Council, it will not be possible for the counsel to conduct the case on behalf of the petitioner. The application is accompanied by some material to show that this is not the first time when this kind of action has been resorted to by the learned Judge and that a number of complaints have been directed to be instituted against the Advocates without any substantial cause. 4. I called for the comments of the learned Presiding Officer and what I find is that instead of replying to the allegations, he has sent terse one line replies. So much so, in 3 para 2, the learned Judge writes, “I am not aware about the engagement of the counsel.” I fail to apprehend as to what kind of stand the learned Judge has taken and he deliberately avoids answering the allegations of bias. How he is not aware about the engagement of the counsel? To say that he is expressing judicial arrogance would be stating the obvious. The manner in which the learned Judge has acted, does not commend recommendations. Judicial duties are discharged with sagacity and patience and not on arrogance and conceit. 5. In State of West Bengal and others vs. Shivananda Pathak and others, AIR 1998 SC 2050, the Supreme Court holds: “23. All judicial functionaries have necessarily to have an unflinching character to decide a case whih an unbiased mind. Judicial proceedngs are held in open court to ensure transparency. Access to judicial record by way of inspection by the litigant or his lawyer and the facility of providing certified copies of that record are factos which not only ensure transparency but also instil and inspire confidence in the impartiality of the court proceedings. 25. Bias may be defined as a pre-conceived opinion or a pre-disposition or pre-determination to decide a case or an issue in a particular manner, so much so that such pre-disposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the Judge unable to exercise impartiality in a particular case. 27. Judges, unfortunately, are not infallible. As human beings, they can commit mistakes even in the best of their judgments reflective of their hard labour, impartial thinking and objective assessment of the problem put before them. In the matter of interpretation of statutory provisions or while assessing the evidence in a particular case or deciding questions of law or facts, mistakes may be committed bonafide which are corrected at the appellate 4 stage. This explains the philosophy behind the hierarchy of courts. Such a mistake can be committed even by a Judge of the High Court which are corrected in the Letters Patent Appeal, if available. 31. This Court has already, innumerable times, beginning with its classic decision in A. K. Kraipak v. Union of India, AIR 1970 SC 150, laid down the need of "fair play" or "fair hearing" in quasi-judicial and administrative matters. The hearing has to be by a person sitting with an unbiased mind. To the same effect is the decision in S. P. Kapoor v. State of Himachal Pradesh, AIR 1981 SC 2181. In an earlier decision in Mineral Development Limited v. State of Bihar, AIR 1960 SC 468, it was held that the Revenue Minister, who had cancelled the petitioner's licence or the lease of certain land, could not have taken part in the proceedings for cancellation of licence as there was political rivalry between the petitioner and the Minister, who had also filed a criminal case against the petitioner. This principle has also been applied in cases under labour laws or service laws, except where the cases were covered by the doctrine of necessity. In Financial Commr. (Taxation), Punjab v. Harbhajan Singh, (1996) 9 SCC 281 : (1996 AIR SCW 2429), the Settlement Commissioner was held to be not competent to sit over his own earlier order passed as Settlement Officer under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The maxim Nemo Debet Esse Judex In Propria Sua Causa was invoked in Gurdip Singh v. State of Punjab, (1997) 10 SCC 641. 32. The above maxim as also the other principle based on the most frequently quoted dictum of Lord Hewart C.J. in R. v. Sussex JJ., ex. p. Mc Carthy (1924) 1 KB 256, 259, that : "It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done", constitute the well-recognised Rule Against Bias. 33. Bias, as pointed out earlier, is a condition of mind and, therefore, it may not always be possible to furnish actual proof of bias. But the courts, for this reason, cannot be said to be in a crippled state. There are many ways to 5 discover bias; for example, by evaluating the facts and circumstances of the case or applying the tests of "real likelihood of bias" or "reasonable suspicion of bias". de Smith in Judicial Review of Administrative Action, 1980 Edn., 262, 264, has explained that "reasonable suspicion" test looks mainly to outward appearances while "real likelihood" test focuses on the court's own evaluation of the probabilities. (p.p.2056-2058) The fact that the Bar Council has been directed to take action against an Advocate is sufficient reason for him to withdraw from the case. The learned Judge should have understood and comprehended that this was perse sufficient for depriving the accused of his right to fair trial. I need not say on the principles any further. The principles as envisaged under Section 407 of the Code of Criminal Procedure have been considered in exten so by this Court in Kewal Ram Chauhan vs. State of H.P. 1992 (1) Sim. L.C. 234. 6. In these circumstances, I direct that trial be immediately transferred from the court of learned Additional Sessions Judge, Mandi to the court of learned Sessions Judge, Mandi who shall thereafter proceed with the case in accordance with law. May 27th, 2011 (Dev Darshan Sud), ms Judge 6