“Recusal definitely cannot be used as a tool to manoeuvre justice, as a means of Bench hunting or Forum shopping, or as an instrument to evade judicial work,” observed Justice Bharati Dangre of the Bombay High Court while recusing herself from hearing a plea in a case registered by the Central Bureau of Investigation (CBI).
A judge recuses from hearing a case to avoid conflict of interest. In such cases, the judge usually does not assign any reason.
However, Justice Dangre passed a detailed 5-page order while recusing herself from hearing a petition filed by one Suresh Khemani against the CBI.
Khemani was booked by the CBI in an alleged case of cheating and forgery of excise duty. The sessions court had dismissed his plea for discharge in the case which he challenged before the HC.
The case had come up for hearing before Justice Dangre on two occasions, wherein she continued the interim relief granted by the earlier bench.
Letter at her residence
On September 10, the judge received a letter at her residence from one Hiten Thakkar, a resident of Vile Parle, pertaining to Khemani’s case.
“The opening paragraph of the said communication informs the manner in which my Predecessor Judge has recused him and on it being subsequently listed before another Bench, how the interim relief was continued illegally,” the court noted while detailing the contents of the letter.
It added: “… it (letter) is definitely indicative that favour or some benevolence is either done or attempted to be done, in favour of the Applicants, on some monetary terms. A request is, hence, made to dismiss the case and take the Accused for trial.”
Justice Dangre said that after receiving the letter, she had the option to either recuse herself from hearing the case or continue with the same, “ignoring the accusations of bias”.
"Judicial impartiality is the most significant facet of justice"
“Judicial impartiality is the most significant facet of justice and there can be no doubt that a Judge is expected to decide the legal disputes placed before him, free of any personal bias or prejudice… A Judge may be impartial, but if a perception is carried by one party that he is not, then recusal is the only option.”
“‘Real and not Remote possibility’ rather than ‘probability’. The bias definitely operates in such an insidious manner that a person may be quite unconscious of its effect,” Justice Dangre said.
She said: “Upon reading the letter, I may now lack the imperative requirement of being part of a “manifestly independent decision making process”, as Justice must not only be done, but it must be seem to be done. I should have a clear conscience that I am still ‘Independent’ and capable of discharging my duty in deciding the case, being uninfluenced by the communication addressed to me.”
However, the judge decided to recuse herself saying: “… I am bound by the oath of my office and keep up the promise of dispensing fair and impartial justice, without fear and favour, affection or ill will; which are the enemies of an independent decision making process, I deem it appropriate to recuse myself not because I have been asked to decide one way, but because I feel it necessary to do so, to avoid further accusations of favour being shown or if I have to dispel the accusations, necessarily I may be compelled to decide the other way, which may even mean injustice to one of the party.”
The judge said that this wasn't the first time that aspersions were cast on judges with the intention of picking benches of party’s choice or as a mode of browbeating the system.
She added that she could have recused without disclosing a reason, “but it is high time that some accountability is attributed to the disgruntled elements, who continue to haunt the system by their unscrupulous acts and walk away, without waiting for consequences of their intimidating action”.
It is high time to show that the system to continue it’s unflinching loyalty to ‘Justice’.
The HC has asked the Registrar (Judicial) to take the letter and retain it till the appropriate actions are issued. The court has asked the registrar to provide a copy of the letter to CBI counsel Kuldeep Patil. The central agency has been asked to take cognizance of this “judicial impropriety” and conduct necessary inquiry into the same and submit a report by September 29.
Aabad Ponda, counsel for Khemani, informed the court that earlier too the judge had recused himself from hearing the case and requested that action be initiated under the Contempt of Courts Act.
The court had continued the interim protection and the matter will be placed before another bench.