Recusal

The Counsel humbly contends that the application submitted before the Hon’ble bench seeking
the recusal of Hon’ble Justice Moitra must not be allowed because there is no reasonable
apprehension of bias(1.1); recusal is a option for the judge and not something to be done at the
request of the parties(1.2); and the application causes interference in the conduct of fair trial(1.3).

1.1 There is no reasonable apprehension of bias –

An adjudicator’s association as a member or otherwise of a private body, or with the administration

in his official capacity or a general interest in a certain subject-matter does not lead to his/her
removal from such an adjudication process. “Mere official or policy may not necessarily be held
to disqualify an official from acting as an adjudicator unless there is total non-application of mind
on his part or he has acted as per dictation of the superior authority instead of deciding the matter
independently or has taken improper attitude to uphold the policy of the department, as to
constitute legal bias”1

“Lord O'Brien in The King (De Vesci) v. The Justices of Queen's Country [1908] 2 I.R. 285,
observed as follows: By bias I understand a real likelihood of an operative prejudice, whether
conscious or unconscious. There must in my opinion be reasonable evidence to satisfy us that there
was a real likelihood of bias. I do not think that their vague suspicions of whimsical capricious
and unreasonable people should be made a standard to regulate our action here. It might be a
different matter if suspicion rested on reasonable grounds was reasonably generated and but
certainly mere flimsy grounds elusively generated and morbid suspicions should not be permitted
to form a ground of decision.2”
"It is discernible that mere suspicion or apprehension is not good enough to entertain a plea of bias.
It cannot be a facet of one's imagination. It must be in accord with the prudence of a reasonable
man. The circumstances brought on record would show that it can create an impression in the mind
of a reasonable man that there is real likelihood of bias.”3

1
C. K. Takwani, Lectures of Administrative Law 193 (6 th ed. Eastern Book Company, 2018)
2
International Airports Authority of India vs. K.D. Bali and Ors.. AIR 1988 SC 1099
3
Brain Castello
?????In Trishala v. M.V. Sundar Raj4, the Supreme Court held that, a judge cannot be precluded
from hearing any case in which a Corporator is a party in his personal capacity simply because the
learned Judge whilst at the Bar was a Standing Counsel for Municipal Corporation. ???????

Section 4795 of the Code of Criminal Procedure in essence define criteria under which a judge
may be disqualified from a case. “An analysis of the section would show that the Magistrate or
judge is disqualified to act as such if : (i) he is a party to or in the case before him; or (ii) he is
personally interested in the case.”6

As in the case where a judgement needs to be reviewed then the case is heard by the same bench
where it had been previously been decided. In the same manner in this present case,
the?????????????????????????????????????????????????????????????????????????????????????

The Counsel contends that in the present scenario, similar to the aforementioned, a mere
association with a certain subject matter does not disqualify a judge from his post. There seems to
be no evidence that Hon’ble Justice Moitra seems to be acting without application f his mind and
analytical senses. The appellants application regarding bias seems to be based on vague suspicion
and completely lacking logic to be held as reasonable apprehension. It also does not satisfy the
conditions laid down in Sec. 479 of CrPC and thus the application made by the appellants does not
have any valid standing.

1.2 Recusal is a discretionary matter and at the option of judge

4
(2010) 15 SCC 714
5
Section 479 of Code of Criminal Procedure provides “Case in which Judge or Magistrate is personally interested.
No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or
commit for trial any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear
an appeal from any judgment or order passed or made by himself. Explanation.- A Judge or Magistrate shall not be
deemed to be a party to, or personally interested in, any case by reason only that he is concerned therein in a public
capacity, or by reason only that he has viewed the place in which an offence is alleged to have been committed or any
other place in which any other transaction material to the case is alleged to have occurred and made an inquiry in
connection with the case.”
6
R. V. Kelkar, Criminal Procedure 364 (6th ed. Eastern Book Company 2019)
In India, the prerogative of recusal is vested in the judge. Judges are not obliged to entertain
requests for recusal unless absolutely necessary to carry out justice It has been emphasized over
various judgements. “In cases where the interest of the Judge in the case is other than financial,
then the disqualification is not automatic but an enquiry is required whether the existence of such
an interest disqualifies the Judge tested in the light of either on the principle of real danger or
reasonable apprehension of bias.”7
Justice J. S. Khehar in the NJAC case expressed that “The decision to remain a member of the
reconstituted Bench was mine, and mine alone. The choice that I made, was not of the heart, but
that of the head. The choice was made by posing two questions to myself. Firstly, whether a Judge
hearing a matter should recuse, even though the prayer for recusal is found to be unjustified and
unwarranted? Secondly, whether I would stand true to the oath of my office, if I recused from
hearing the matters?”8

In the same case he “A Judge may recuse at his own, from a case entrusted to him by the Chief
Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party,
unless justified, must never to be acceded to. For that would give the impression, of the Judge had
been scared out of the case, just by the force of the objection.”9
Justice Moitra does not have any pecuniary interest in the matter nor there seems to be any personal
interest and thus it remains completely upon his prerogative to reject such an application.

1.3 The application causes interference in the conduct of fair trial

The Supreme Court in Subrata Roy Sahara v. Union of India and Ors.10 has observed “The transfer
petition like the application (supra) cast aspersions on the learned Judge in the discharge of his
judicial functions and had the tendency to scandalise the Court. It was an attempt to brow beat the
learned Judge of the High Court and cause interference in the conduct of a fair trial.”
“Alternatively, another way to engage in such "forum shopping" would be to express a completely
unfounded apprehension of bias and expect a particular Judge to recuse himself/herself. If the

7
Supreme Court Advocates-on-Record-Association and Ors vs. Union of India (2016 )5 SC C 1
8
Supreme Court Advocates-on-Record-Association and Ors vs. Union of India (2016 )5 SC C 1
9
IBID
10
Subrata Roy Sahara v. Union of India and Ors. AIR2014SC 3241
Court allows itself to be susceptible to such measures or practices, it will, in my opinion, seriously
undermine the functioning of the system of justice and the institution of the Courts.”11
“In the words of Lord O'Brien, LCJ there must be a real likelihood of bias. It is well settled that
there must be a real likelihood of bias and not mere suspicion of bias before the proceedings can
be quashed on the ground that the person conducting the proceedings is disqualified by interest.”12
In the present case the application for recusal seems be based on unreasonable suspicion and
recusal in such a case would leads to interference and delay of justice and undermines the
functioning of the courts.

11
Brian Castellino vs Bell Finvest India Limited 2015(2) Bom CR 247
12
International Airports Authority of India Vs. Respondent: K.D. Bali and Ors.. AIR1988SC 1099