ALEXANDER Vs. CBI

JUDGEMENT

(1.) '' In this petition filed under S.407 Cr.P.C. the petitioner who is the accused in C.C. No.4/95 on the file of the Special Court (SPE/CBI) -I, Ernakulam, seeks a transfer of the above case from the said Court to the other Court dealing with the C.B.I, cases at Ernakulam, for an adjudication of the question of discharge in a fair, unbiased and transparent manner. The Central Bureau of Investigation (C.B.I.) and the State of Kerala are the respondents to this petition. The matter was argued in detail before me. Petitioners Contentions

(2.) IN the words of the petitioner himself, when his petition for discharge was argued before the Special Judge on 7.3.2005, what transpired was the following: The Special Judge remarked: "I have to frame charges". My counsel replied "only if there are sufficient materials". "I was in Court and was completely taken aback and shocked at the observation made by the Court. The Court was then impressed upon the fact that the Supreme Court has permitted me to raise all arguments in support of discharge".

(3.) THE above observations by the Special Judge, according to the petitioner, indicate that even before the hearing, the learned Judge had pre -judged the whole issue and was determined to frame charges whatever be the arguments. The petitioner alleges that the above observations have engendered an apprehension in the mind of the petitioner that he will not get justice from the biased Judge who has made no secret of his prejudice against the petitioner. Buttressing his contentions Adv. Sri. K. Ramakumar intelligently placed reliance on the following passages: (A) "131. In Blacks Law Dictionary Sixth Edition at page 162 bias is defined as under: "Inclination; bent; prepossession; a preconceived opinion; a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. To incline to one side. Condition of mind, which sways judgment and renders Judge unable to exercise his functions impartially in particular case. As used in law regarding disqualification of Judge, refers to mental attitude or disposition of the Judge toward a party to the litigation, and not to any views that he may entertain regarding the subject -matter involved. State ex rel. Mitchell v. Sage Stores Co.1 132. The rule of bias is founded on the well -known maxim nemo judex non causa sua: no person can be a Judge in his own cause". "The frequency with which allegations of bias have come before the Courts in recent times seems to indicate that the reminder of Lord Hewart, C. J., in R. v. Sussex Justices2 that it is "of fundamental importance that justice should not, only be done, but should manifestly and undoubtedly be seen to be done". In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon3, it was held thus: ...... in considering whether there was a real likelihood of bias, the Court does not look at the mind of Justice himself or at the mind of the Chairman of the tribunal, whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was in impartial as could be, nevertheless, if right minded persons would think that in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand: See R. v. Huggins4, R. v. Sunderland Justices5, Per Vaughan Williams, L. J. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: See R. v. Cambome Justices, Ex p. Pearce6, R. v. Nail Sworth Justices Exp. Bird.7 There must be circumstances from which a reasonable man would think it likely or probable that the Justice, or Chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right -minded people go away thinking". The Judge was biased". "145. In Ranjit Thakur v. Union of India8, the law was stated by one of us, Venkatachaliah, J. (as he then was) as under: "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". (Tata Cellular v. Union of India)9. (B) Bias may be generally defined as partiality or preference. It is true that any person or authority required to act in a judicial or quasi -judicial matter must act impartially ....................................... It is not every kind of bias which in law is taken to vitiate an act. It must be a prejudice which is not founded on reason, and actuated by self -interest - '' whether pecuniary or personal. Because of this element of personal interest, bias is also seen as an extension of the principles of natural justice that no man should be a judge in his own cause. Being a state of mind, a bias is sometimes impossible to determine. Therefore, the Courts have evolved the principle that it is sufficient for a litigant to successfully impugn an action by establishing a reasonable possibility of bias or proving circumstances from which the operation of influences affecting a fair assessment of the merits of the case can be inferred", (vide G.N. Nayak v. Goa University & Ors.10 (C) "In R. v. Sussex Justices11, it has been indicated that answer to the question whether there was a real likelihood of bias depends not upon what actually was done but upon what might appear to be done". (Vide Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co -education) Higher Secondary School & Ors.12 (D) 26. The concept of -˜Bias however has had a steady refinement with the changing structure of the society. Modernisation of the society, with the passage of time, has its due impact on the concept of Bias as well. Three decades ago this Court in S. Parthasarathi v. State of Andhra Pradesh13, proceeded on the footing of real likelihood of -˜bias and there was in fact a total unanimity on this score between the English and the Indian Courts. Mathew, J. in Parthasarthis case observed: "16. The tests of "real likelihood" and "reasonable suspicion" are really inconsistent with each other. 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 inquiry 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 (See per Lord Denning, H.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon).14 We should not, however, be understood to deny that the Court might with greater propriety apply the "reasonable suspicion" test in criminal or in proceedings analogous to criminal proceedings." (Vide Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant & Ors.)15. (E) "Justice is a principle which regulates the distribution of things, valued by men awarding them to some, denying them to others. It is, at the same time, a principle whereby mans worth is appraised. Justice gives to -˜every one that which is his. It is not, a free gift from the Court. The subject of a civilised country is entitled as a matter of right to get it freely without sale, fully without any denial and speedily without delay". The Court only appraises it. In doing so the Court must act and appear to act without partiality and without prejudice or as it is often expressed, "justice should not only be done but should manifestly and undoubtedly seem to be done." "If a litigant feels that he will not get justice in a particular Tribunal, he can demand a transfer of the case to some other Court." "The question is for the Court to determine whether the applicant who applies for the transfer feels that he is not likely to have a fair trial in the other Court. In coming to a conclusion on this point, the question for consideration is what is the effect likely to be produced in the mind of the party and not in the mind of the Judge. It is the feeling of the party that has to be ascertained and it necessarily depends on the individual concerned, his temperament and failing, his interest and circumstances. If the Court on a consideration of all the facts comes to the conclusion that the applicant feels that he is not likely to have a fair trial in the Court from which he seeks the transfer it is the duty of the Court to make the order." (Vide Rupendra Deb Raikut v. Ashrumati Debi &Ors.16). (F) "It is of vital necessity, if law and order are to be maintained, that the Criminal Courts whose duty it is to administer the penal laws, should be above criticism or challenge. Justice must not only be done, but must manifestly appear to be done". (Vide Uaman Haroom & Ors. v. Emperor)17. (G) "It is particularly mentioned that on 10.2.1950, after the statement of Shri Satya Deo, Secretary, District Congress Committee, Jaisalmer, had been completed and he had been discharged, he was asked to produce certain documents, that when on 12.4.1950, Satya Deo appeared for re -cross -examination by the accused, he was asked about the documents and when he stated that they were not with him, the Magistrate lost his temper and observed: "Why should not chits be affixed to your Congress Office? The police had committed a mistake and not taken possession of the documents beforehand. You want to hide the truth. You are a liar and want to shield the accused wrongly. Certainly, there is something in the documents." It was further alleged that after this the Magistrate and the Prosecuting Inspector held consultations whereupon the Prosecuting Inspector said to the Magistrate that he was declaring the witness hostile. Thereupon, the Magistrate asked the Prosecuting Inspector to submit an application which was promptly made whereupon the counsel for the accused requested for an opportunity to address arguments before the witness was declared hostile but the Magistrate paid no heed to it and declared the witness hostile with the remark that he wanted to shield the accused. It is said that on account of the above reasons the accused had a reasonable apprehension that they would not get a fair trial before Shri Goswami". "Courts should be very cautious in making observations in the course of a trial, because, while disposing of a Transfer Petition the Superior Courts have to see whether or not the particular observation made by the Court will raise a reasonable apprehension in the minds of the accused that they would not have a fair trial in that Court. Observations like the one mentioned above must necessarily raise such an apprehension in the mind of the accused. Moreover, the observation complained of appears to be uncalled for". (Vide Bhanwar Lal v. The State, AIR 1951 Raj. 107). (H) "In dealing with an application for transfer there are certain well -established principles which have been stated in (1977) 2 QBD 558 at p.567 and (1924) 1 K.B. 256 (2) at p.259. The propositions deductible are these: (1) One important object, at all events, is to clear away everything which might engender suspicion and distrust of the Tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security. (2) The law, in laying down this strict rule, has regard not so much perhaps to the motives which might be supposed to bias the Judge as to the susceptibilities in the litigant parties. (3) It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seem to be done. (4) Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice". (Vide Annubeg Muckimbeg Musalman & Anr. v. Emperor)18. (I) "It is of the utmost importance that litigants should have faith and confidence in the impartiality of Courts. The confidence has to be maintained. It is not enough to do justice. It must be seen to be done. Giving the impression by some remarks, made before the close of the argument about the character of important prosecution witnesses which had a bearing on the value of their evidence, that the issue has been prejudged would justify a demand for transfer of the case" (Vide N. C. Bose v. Porbodh Dutta Gupta).19 Stand of the C.B.I.