NARINDER SINGH ARORAversusSTATE (GOVT. OF NCT OF DELHI) AND ORS.

                    [2011] 13 (ADDL.) S.C.R. 436


 A                 NARINDER SINGH ARORA
                               v.
          STATE (GOVT. OF NCT OF DELHI) AND ORS.
               (Criminal Appeal No.2184 of 2011)
                        DECEMBER 5, 2011
B
     [H.L. DATTU AND CHANDRAMAULI KR. PRASAD, JJ.]

         Judgment - Requirement of a Judge to act fairly as a/so
    to act above suspicion of unfairness and bias - Test of "real
C likelihood of bias"- Appellant lodged complaint whereafter
    charges were framed against the respondents u/ss. 498-A,
    304-B rlw s.34 and s.302 of !PC by 'PR', Additional District &
    Sessions Judge - Thereafter, the case was listed before
    'SND', Additional Sessions Judge for trial, however, the Judge
D recused from hearing the matter for personal reasons -
   Accordingly, the case was withdnwn from the Court of 'SND'
   and transferred to the Court of 'SMC', Additional Sessions
   Judge - Eventually accused respondents were tried and
   acquitted vide judgment passed by 'MG', Additional Sessions
E Judge - Appellant preferred revision petition before the High
   Court - The same was dismissed vide impugned final
   Judgment passed by Judge, 'SND' - Held: Apparently the fact
   of earlier recusa/ of the case at the trial by 'SND' himself, was
   not brought to his notice in the revision petition before the
F High Court by either of the parties to the case - Therefore,
   'SND' owing to inadvertence regarding his earlier recusa/,
   dismissed the revision petition by the impugned Judgment -
   The impugned Judgment, passed by 'SND' subsequent to his
  recusa/ at trial stage for personal reasons, is against the
G principle of natural justice and fair trial - 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

H                               436
· NARINDER SINGH ARORA v. STATE (GOVT. OF NCT 437
              OF DELHI) AND ORS.   •

 - A person, trying a cause, must not only act fairly but must   A
 be able to act above suspicion of unfairness and bias - In
 view of the aforesaid facts and reasons, the impugned
 Judgment of the High Court in Criminal Revision is set aside
 and the matter is remanded to the High Court for fresh
 disposal of the revision petition filed by the appellant.       B

     Manak Lal v. Dr. Prem Chand Singhvi AIR 1957 SC 425:
 1957 SCR 575; A.K. Kraipak v. Union of India (1969) 2 SCC
 262: 1970 (1) SCR 457; S. Parthasarathi v. State of A.P.
 (1974) 3 SCC 459: 1974 (1) SCR 697; G. Sarana (Dr.) v.
 University of Lucknow (1976) 3 SCC 585: 1977 (1) SCR 64;        C
 Ranjit Thakur v. Union of India (1987) 4 SCC 611: 1988 (1)
 SCR 512; Secy. to Govt., Transport Deptt. v. Munuswamy
 Mudaliar (1988) Supp. SCC 651 - relied on.

      R. v. Camborne JJ, exp Pearce (1955) 1 QB 41 and R.        D
 v. Gough (1993) 2 All ER 724 (HL) - referred to.

                      Case Law Reference:

      1957 SCR 575              relied on             Para 5
                                                                 E
      1970 (1) SCR 457          relied on             Para 6

      1974 (1) SCR 697          relied on             Para 7

      1977 (1) SCR 64           relied on             Para 8
                                                                 F
      1988 (1) SCR 512          relied on             Para 9

       (1988) Supp. sec 651     relied on            Para 10

       (1955) 1 QB 41           referred to          Para 11
                                                                 G
      (1993) 2 All ER 724 (HL)referred to            Para 12

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
  No. 2184 of 2011.
                                                                 H
     438     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


 A       From the Judgment & Order dated 01.09.2010 of the High
     Court of Delhi in Criminal Revision No. 555 of 2003.

           Kamini Jaiswal for the Appellant.

         P.P. Malhotra, ASG, Sadhna Sandhu (for Anil Katiyar).
B    Dhuruv Tamta (for Binu Tamta) for the Respondents.

           The Order of the Court was delivered by

                                 ORDER
c          H.L. DATTU, J.
           Leave granted.

       1. The present appeal, by way of special leave, is directed
D 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
  22.03.2003 passed by Learned Additional Sessions Judge in
  Sessions Case No. 104 of 2001.
E
        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
F 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.
G 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:
H
NARINDER SINGH ARORA v. STATE (GOVT. OF NCT 439
     OF DELHI) AND ORS. [H.L. DATIU, J.]
   "25-09-2000                                                      A
    Present:- Spl. P.P. for the State

    All the accused on bail.

    For personal reason I do not want to try this case. The case    B
    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"      c
      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 D
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 E
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 F
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 G
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   H
    440     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.

A capacity if his previc.,Js 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
B 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
c         impartially, objectively and without 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
D         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
E   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
F         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
G         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)
H 3 SCC 459, this Court has applied the "real likelihood" test and
NARINDER SINGH ARORA v. STATE (GOVT OF NCT 441
      OF DELHI) AND ORS. [H.L. DATTU, J.]
restored the decree of the trial court which invalidated              A
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 B
    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 C
    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 D
     delinquent. The court will not inquire whether hewas 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 .... "
                                                                     E
     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:

     "11 .... the real question is not whether a member of an
                                                                      F
     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             G
     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)        H
    442      SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A   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
B         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
c         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'.

D         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 biased?'; but to look at the mind of the party
          before him."
E
        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
F 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,
G 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
H
NARINDER SINGH ARORA v. STATE (GOVT. OF NCT 443
      OF DELHI) AND ORS. [H.L. DATTU, J.]
     is bias. There must be reasonable apprehension of that A
     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 B
     reasonable intelligent man, fully apprised of all the
     circumstances, would feel a serious apprehension of
     bias."(emphasis supplied)

       11. In the case of R. v. Camborne JJ, exp Pearce, (1955)
 1 QB 41, the Divisional Court of the Queen's Bench Division, C
Iafter 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 D
 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 E
 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     F
 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,       G
     justice requires 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    H
    444 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R

A       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
8
  the impugned Judgment and Order dated 01.09.201 O 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
C case. Ordered accordingly.

    8.8.8.                                    Appeal disposed of.