25.At this juncture, this Court observes that the suo motu revisions initiated over the past few weeks have been looked upon in some quarters as a sort of witch hunt spearheaded by one Judge of the High Court. It is, therefore, necessary to remind all concerned that thesesuo motu revisions have been exercised not by one Judge but by the High Court, as an institution, to ensure that the streams of criminal justice are not subverted and remain pure and unsullied. The orders of the High Court resonate the voice of not any individual judge but one institution. In other words, decision-making by the High Court is an institutional action and not the action of any particular judge. This is in keeping with the role of the High Court as a constitutional court vested with the power of judicial and administrative superintendence over the courts subordinate to it. 26.Having thus rejected the plea for recusal and the preliminary contentions raised on behalf of the State and the accused, the Court must now decide the next course of action. Having regard to the issues raised this Court is of the view that submissions on either side are likely to take up some time. Given the fact that a fresh roster will come into effect from the first week of October, these matters can be taken up and heard at length once the next roster is notified by the Court. The Registry is directed to list the matter on 09.10.2023 at 2:15 pm for arguments. 14.09.2023 KP Internet: Yes Index: Yes/No Speaking Order/Non-Speaking Order . To 1.The Vigilance and Anti-Corruption Wing    Viluppuram. 2.The Principal District Court    Vellore. 3.Public Prosecutor    High Court, Madras. N.ANAND VENKATESH., J. KP   SUO MOTU Crl.R.C.No.1419 of 2023 14.09.2023 .

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 14.09.2023

CORAM

THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

SUO MOTU Crl.R.C.No.1419 of 2023

1.State rep.by

The Vigilance and Anti-Corruption Wing    Viluppuram.

(Crime No.4 of 2002)

2.Mr.K.Ponmudi  (A1)   S/o.Kandasamy

3.Smt.P.Visalatchi (A2)

W/o.Mr.K.Ponmudi     … Respondents

(A1 and A2 residing at No.6A, Thirupan Azhvar Street,

East Shanmugapuram Colony, Viluppuram).

Criminal Revision case filed under Section 397 of Cr.P.C. to call for the records of the Principal District Judge, Vellore (Designated Special Court) passed in Spl.SC.No.3 of 2022, dt.28.06.2023 and set aside the same.

For Respondents: Mr.Siddharth Luthra, Senior Counsel and

Mr.Hasan Mohamed Jinnah

Senior Counsel and State Public Prosecutor Asst.By:

Mr.Amit Anand Tiwari for R1

Mr.N.R.Elango, Senior Counsel for M/s.Aswin Prasanna for R2

Mr.N.R.Elango, Senior Counsel for M/s.Agilesh Kumar for R3

SUO MOTU Crl.R.C.No.1419 of 2023 N.ANAND VENKATESH., J.

On 10.08.2023 this Court had taken up suo motu proceedings against the order dated 28.06.2023 passed by the Principal District Judge, Vellore (Designated Special Court) passed in Special SC.No.3 of 2022 acquitting respondents 2 and 3 herein from all charges. Notices were directed to be issued to the accused for the hearing on 07.09.2023.

2. When the matter was taken up on 07.09.2023, the DVAC was represented by Mr.Siddharth Luthra, learned Senior Counsel assisted by the State Public Prosecutor and Mr.N.R.Elango, learned Senior Counsel instructed by Mr.Ashwin Prasanna for the accused /respondents 2 and 3.

3.Mr.Siddharth Luthra, learned Senior Counsel made the following submissions:

10. Due to various observations made by this Court while passing the order on 10.08.2023, in the fitness of things, it will be appropriate if the case is heard by a different Bench.
11. The Administrative side of the High Court must be put on notice since the Administrative order passed has been dealt with and findings have also been rendered to the effect that the same is ex-facie illegal.
12. The materials that were relied upon while passing the earlier order on 10.08.2023, has not been furnished to the State and hence, submissions cannot be made without those materials.
13. Section 401(2) of Cr.PC specifically provides that no order under Section 401 of Cr.PC can be passed to the prejudice of the accused or other persons unless they had an opportunity of being heard either personally or through their counsel and in this case, the observations made by this Court while passing the earlier order on 10.08.2023 has put the State as well as the accused persons and also the administrative side of the High Court to prejudice and hence, the matter has to be heard by a different Bench. And ;
14. The State is yet to process the papers and come to a conclusion as to whether an appeal is going to be filed against the judgment passed by the Special Court in Spl.SC.No.3 of 2022 dated 28.06.2023 and in the meantime, the revisional jurisdiction has been exercised by this Court and thereby, the right of filing an appeal has been rendered nugatory.

4.Mr.N.R.Elango, learned Senior Counsel also supported the State’s plea for recusal. In addition, the learned Senior Counsel submitted that the accused had not been furnished with the materials (including the administrative orders). This grievance on behalf of the State and the accused can no longer subsist as the Registry has, today, furnished a complete copy of the records to the counsel on record for the State as well as the accused under due acknowledgment.

5.This leaves me with the other objections, noted supra, raised by Mr.Siddharth Luthra and Mr.N.R Elango, learned Senior Counsel. Taking the last point first, it is the contention of Mr.Siddharth Luthra, learned Senior Counsel that this Court ought not to have exercised suo motu powers since the State has a remedy of appeal under Section 378 of the Code of Criminal Procedure. It is contended that as the limitation for filing an appeal has not expired the State is still contemplating filing an appeal. It is urged that the exercise of suo motu powers under Sections 397 and 401 Cr.P.C has thwarted the State’s right of appeal.

6. To appreciate this contention, it is necessary to first set out Section 401 Cr.P.C which is as under:

“401. High Court’s powers of revision.—(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307, and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

• No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
• Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one conviction.
• Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
• Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of Justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.”

 

It is well settled that the power of revision under Section 397 Cr.P.C to call for the records to exercise the power of revision is available to the High Court or the Sessions Court either (a) suo motu or (b) at the instance of an aggrieved party. A close reading of Section 401(4) shows that the power of revision cannot be entertained at the instance of a person who could have appealed against the order complained of but has not chosen to do so. Thus, it is obvious that Section 401(4) Cr.P.C would apply only to a case where the High Court or the Court of Session is moved for the exercise of revisional jurisdiction at the instance of a party who had a right of appeal against the order complained of but had chosen not to avail of the same. The said bar has no application to the exercise of revisional jurisdiction suo motu. That apart, there is nothing either in Section 378, 397 or Section 401 Cr.P.C which forecloses the right of appeal of any party upon a suo motu exercise of revisional power by the High Court.

7.That apart, if the State was aggrieved by the judgment of acquittal passed by the Special Court, as they claim to be, the subsequent exercise of its right of appeal under Section 378 Cr.P.C cannot, by any stretch of the imagination, be at variance or cross purposes with the exercise of suo motu power by the High Court under Section 397 Cr.P.C. This is because if the State is actually aggrieved by the order of the Special Court, the exercise of suo motu power by the High Court under Section 397 Cr.P.C would actually support the stand of the State and subserve the same purpose. However, since it appears that the State is still “contemplating” whether it is aggrieved against the order of the Special Court, any discussion is clearly academic and this Court finds it unnecessary to pursue the discussion on this point any further.

8. The next contention of Mr. Luthra, learned Senior Counsel is that Section

401(2) of Cr.PC specifically provides that no order under Section 401 of Cr.PC can be passed to the prejudice of the accused or other persons unless they had an opportunity to be heard either personally or through their counsel. It is contended that the observations made by this Court while passing the earlier order on 10.08.2023 has put the State as well as the accused persons and also the administrative side of the High Court to prejudice and hence, the matter has to be heard by a different Bench.

9.The exercise of revisional jurisdiction under Sections 397 and 401 Cr.P.C comprises two stages. The first stage is where the High Court exercises power under Section 397 Cr.P.C to call for the records for the purpose of exercising powers of revision to satisfy itself of the correctness, legality or propriety of any finding, sentence or order of an inferior criminal Court. Once the High Court has called for the records under Section 397 Cr.P.C, the powers vested with the High Court and the Court of Session to deal with the case thereafter are set out in Section 401 Cr.P.C. Section 401 (1) Cr.P.C vests discretionary jurisdiction in the High Court to exercise any of the powers of an appellate court under Sections 386, 389, 390 and 391 Cr.P.C or on a Court of Session under Section 307 Cr.P.C.

10.Section 401(2) Cr.P.C, which has been pressed into service by the DVAC, reads as follows:

“(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.”

 

On a plain reading of Clause (2) of Section 401 Cr.P.C it is clear as the day that what is prohibited without prior hearing is the exercise of powers “under this section” ie., the powers enumerated in Clause (1) of Section 401 Cr.P.C which are again referable to the appellate powers under Sections 386, 389, 390 and 391 Cr.P.C and the powers of the Court of Session under Section 307 Cr.P.C. Section 401(2) Cr.PC. cannot operate at the stage of calling for the records under Section 397(1) Cr.PC for at that stage, the High Court has not passed any order “under” Section 401 Cr.PC.

11.Thus, by passing the order dated 10.08.2023 this Court has not exercised any of the appellate powers enumerated under Section 401(1) Cr.PC nor has it set aside the order dated 28.06.2023 passed by the Principal District Judge, Vellore (Designated Special Court) passed in Special S.C.No. 3 of 2022 so as to attract Section 401(2) Cr.PC.

Adverting to Section 401(2) Cr.PC the Hon’ble Supreme Court in Gurdev Singh v.

Surinder Singh, (2015) 3 SCC 773, has observed as under:

“Thus, it was obligatory on the Additional Sessions Judge to hear the accused before setting aside the order of dismissal of the complaint in his revisional jurisdiction.”

 

For the aforesaid reasons, the plea alleging a violation of Section 401(2) Cr.PC must necessarily fail.

12.The next contention is that the Administrative Side of the High Court must be put on notice since an administrative order of the High Court was dealt with, and a finding has also been rendered that the same is ex-facie illegal. This contention need not detain us for long since the Administrative Side is not before this Court complaining or requesting that it be heard in the matter. It is rather strange that DVAC or the accused should be holding candles for the Administrative Side of the High Court which is perfectly capable of defending itself if the need so arises. This contention also fails and is consequently rejected.

13.We now come to the sheet anchor of the objections raised by the DVAC and the accused persons. It is the submission of Mr.Siddharth Luthra, learned Senior Counsel appearing on behalf of the State that in making the various observations in the order dated 10.08.2023, this Court has prejudged the issue thereby revealing an element of bias. Consequently, this Court must recuse from the case and the matter ought to go before another Bench. In support of the aforesaid submission, the State placed reliance on the decisions of the Hon’ble  Supreme Court in State of Punjab v Davindar Pal Singh (2011) 14 SCC 770, P.D Dinakaran v Judges Inquiry Committee,

(2011) 8 SCC 380, Kumaon Mandal Vikas Nigam Limited v Shankar Pant, (2001) 1 SCC 182, a decision of Lord Hewart CJ in the Sussex Justices case (1924) 1 KB 256, a decision of the Court of Appeal in Locobail (UK) v. Bay field Properties, Pembinaan BLT Sdn Bhd, 2015 9 MLJ 335.

14. Mr. N.R Elango learned Senior Counsel for the accused supported the plea of recusal made on behalf of the State. The learned counsel drew an analogy with Section 190(c) Cr.P.C to contend that a judge initiating suo motu proceedings should not hear the matter.

15.Coming to the issue of bias, from the standpoint of the State this is certainly a very strange plea. While this Court has no quarrel on the applicable test for adjudging a plea of bias, the question must ultimately boil down to the person who raises such a plea. This is because a plea of bias presupposes that a person alleging bias on the part of the adjudicator entertains a reasonable apprehension that the adjudicator would pass orders adverse to him.

16.The pointed submission of Mr.Siddharth Luthra, learned Senior Counsel is that the suo motu powers of revision by this Court under Section 397 Cr.P.C has interfered with the right of appeal of the State which it was contemplating exercising. Since it would be stating the obvious that the accused cannot file an appeal against their own acquittal it must be assumed, at least theoretically, that the State and the accused are not sailing together since the State actually claims before this Court that they “aggrieved persons” contemplating the filing of an appeal under Section 378Cr.P.C against the orders of the Special Court. This implies that the State is, again at least theoretically, is aggrieved or claims to be aggrieved against the order of acquittal passed by the Special Court.

17.Once the above submission of Mr. Luthra is noted, it must follow that any apprehension of bias or predetermination that the order of acquittal passed by the Special Court would be set aside by this Court must necessarily inure in favour of the State, for by setting aside the order of acquittal the State would be a direct beneficiary of such bias unless the State chooses to say that it is filing the appeal only as  a façade to get a certificate of dismissal from this Court. This is, however, not the plea of the State, at least at this juncture. Therefore, from the submission of Mr. Luthra, learned

Senior Counsel this Court must proceed on the basis that the State is “aggrieved” and “continues to be aggrieved” by the acquittal of respondents 2-4 up until this point.

18. In the backdrop, it must be noticed that it is the settled law that a plea of bias cannot be raised at the instance of a party who would be a beneficiary of bias on the part of the adjudicator. The law in this regard has been summed up by Chelameswar, J in Hon’ble  Supreme Court Advocates-on-Record Assn. (Recusal

Matter) v. Union of India (Recusal Matter), (2016) 5 SCC 808:

“30. No precedent has been brought to our notice, where courts ruled at the instance of the beneficiary of bias on the part of the adjudicator, that a judgment or an administrative decision is either voidable or void on the ground of bias. On the other hand, it is a well-established principle of law that an objection based on bias of the adjudicator can be waived. Courts generally did not entertain such objection raised belatedly by the aggrieved party:

“The right to object to a disqualified adjudicator may be waived, and this may be so even where the disqualification is statutory. [Wakefield Local Board of Health v. West Riding and Grimsby Railway Co., (1865) LR 1 QB 84] The court normally insists that the objection shall be taken as soon as the party prejudiced knows the facts which entitle him to object. If, after he or his advisors know of the disqualification, they let the proceedings continue without protest, they are held to have waived their objection and the determination cannot be challenged.” [R. v. Byles, ex p Hollidge, (1912) 77 JP 40; R. v. Nailsworth

Licensing Justices, ex p Bird, (1953) 1 WLR 1046; R. v. Lilydale Magistrates Court, ex p Ciccone, 1973 VR 122; and see R. v. Antrim Justices, (1895) 2 IR 603; Tolputt (H.) & Co. Ltd. v. Mole, (1911) 1 KB 836 (CA); Corrigan v. Irish Land

Commission, 1977 IR 317]

In our opinion, the implication of the above principle is that only a party who has suffered or Is likely to suffer an adverse adjudication because of the possibility of bias on the part of the adjudicator can raise the objection.”

Thus, the objection as regards bias can only be raised at the instance of a person who has suffered or is likely to suffer an adverse adjudication. As the risk of repetition, assuming that the order of acquittal passed by the Special Court is to be set aside, the State would be a direct beneficiary for it would be achieving the same result that it would achieve by filing an appeal. It is, therefore, very strange and curious that the State must allege bias especially since it claims to be a person aggrieved against the orders of the Special Court, and is contemplating filing an appeal under Section 378 Cr.P.C. It is, therefore, a mystery as to why the mighty State is shooting a plea of bias at this Court from the shoulders of the accused. For the aforesaid reasons, the plea of bias alleged by the State must be rejected as completely misconceived.

19.Coming to the accused, the plea canvassed on their behalf is one of nonpecuniary bias. The authorities cited by the accused and the State alleging bias primarily related to bias vis-à-vis administrative adjudication. The test of bias applicable to judges of a constitutional court is set out in Hon’ble Supreme Court Advocates-onRecord Assn. (Recusal Matter) v. Union of India (Recusal Matter), (2016) 5 SCC 808, wherein it was observed as under:

“75. Ultimately, the question is whether a fair-minded and reasonably informed person, on correct facts, would reasonably entertain a doubt on the impartiality of the Judge. The reasonableness of the apprehension must be assessed in the light of the oath of office he has taken as a Judge to administer justice without fear or favour, affection or ill will and his ability to carry out the oath by reason of his training and experience whereby he is in a position to disabuse his mind of any irrelevant personal belief or predisposition or unwarranted apprehensions of his image in public or difficulty in deciding a controversial issue particularly when the same is highly sensitive.”

 

Thus, the test of a reasonable likelihood of bias must be assessed in the light of the oath of office taken by the Judge to administer justice without fear or favour, affection or ill will and his ability to carry out the oath by reason of his training and experience whereby he is in a position to disabuse his mind of any irrelevant personal belief or predisposition or unwarranted apprehensions.

20. In its order dated 10.08.2023 justifying the exercise of revisional power to call for the records of the Special Court this Court has commented on the procedure adopted by two Hon’ble Judges of this Court on the administrative side transferring a case from one District Court to another for no apparent reason. It was contended on behalf of the accused that some of the observations made therein have pre-judged the issue with the result that this Court is disqualified from hearing the matter.

21.It should be pointed out that vide the order dated 10.08.2023, this Court has initiated suo motu proceedings and issued notice to the accused with the view of affording an opportunity to hear them and take a decision thereafter. It is nobody’s case that this Court has passed any final order under Section 401 Cr.PC. Thus, the question is, whether mere expression of a strong view at a preliminary stage is enough to successfully engage a plea of bias? In Wendy Ann  El-Farargy v. Nael Mahmould El Farargy [2007] EWCA Civ 1149 the Court of Appeal dealt with a somewhat similar issue when it observed:

“This judge had already had to deal with this matter

on many occasions for many days and, in the light of the husband’s appalling forensic behaviour, no observer sitting at the back of his court could have been surprised that he had formed a “prima facie” view nor even that it was “a near conviction”. A fair-minded observer would know, however, that judges are trained to have an open mind and that judges frequently do change their minds during the course of any hearing. The business of this court would not be done if we were to recuse ourselves for entering the court having formed a preliminary view of the prospects of success of the appeal before us. Singer J. did express himself in strong terms and he would have been wiser to have kept his thoughts to himself. But there are times in any trial and in any pre-trial review where a judge is entitled to express a preliminary view and I do not see that Singer J. has over-stepped the mark in the particular circumstances of this case. The husband has behaved disgracefully yet he, noticeably, has not joined in the application for the judge to recuse himself. The Sheikh, who allies himself with the husband, cannot complain too vociferously if some of the judge’s wholly justifiable ire rubs off on him.”

 

22.A Division Bench of the Delhi High Court in AIMS v Prof Kaushal K Verma, 2015 SCC Online Del 9226, followed the aforesaid decision and held that a mere strong expression about the likely outcome of a case is insufficient to successfully allege bias.

The Delhi High Court has gone on toobserve:

“Judges are called upon to hand down orders, in the course of open court proceedings, on a variety of motions; the most common of these are applications for interim measures. The prevailing law in our country (and elsewhere) is that such orders have to necessarily consider the prima facie strength of the asserting litigant (be she or he the appellant or the claimant before the court). Other considerations such as irretrievable hardship and balance of convenience necessarily enter the judicial matrix. Determinations of prima facie strengths invariably are based on what the court perceives to be facially apparent on the record; indeed a deeper scrutiny is avoidable for the simple reason that a full dress argument would not have been made occasioning the court to hear all submissions or consider all relevant materials. Would that mean that a clearly (though not conclusively) expressed view amounts to the court “pre-judging” the case beforehand? One thinks that such should not be the case. It is here that the reasonableness of the litigant’s perception of the order (as displaying a preconceived mind, or predilection of the court to a particular view point) becomes crucial. Now, every view entertained by a litigant cannot be expected to be reasonable; there has to be some semblance of what she or he expects of the court in the circumstances-given that an application for interim relief would entail a discussion on merits (bereft of which the appellate court can justly castigate the court granting or denying such relief for opaqueness in the order itself). Therefore, it is expected that reasonably the applicant should brace herself or himself for the likelihood of failure – in the interim relief application. Over-sensitivity therefore, cannot be the basis of an application (an aspect emphasized in Wendy Ann El-Farargy v. NaelMahmould El Farargy [2007] EWCA Civ 1149 and more pithly phrased, in the words of Micheal Kirby, J in Johnson v. Johnson (2000) 200 CLR 488, 509, that “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious”).”

 

23.This decision was approved by the Hon’ble Supreme Court in Indore

Development Authority (Recusal Matter-5 J.) v. Manohar Lal, (2020) 6 SCC 304.

24.In view of the above, there is no substance in the plea that this Court is disqualified to hear the matter in view of the observations made by it in its order dated 10.08.2023. In deciding a plea of recusal, the following observations of the Hon’ble

Supreme Court in Supreme Court Advocates-on-Record Assn. (Recusal Matter) v.

Union of India (Recusal Matter), (2016) 5 SCC 808, must be borne in mind:

“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. A Judge before  he assumes his office, takes an oath to discharge his duties without fear or favour. He would breach his oath of office, if he accepts a prayer for recusal, unless justified. It is my duty to discharge my responsibility with absolute earnestness and sincerity. It is my duty to abide by my oath of office to uphold

the Constitution and the laws.”

Consequently, the plea of bias fails, and with it the prayer for recusal also stands rejected.

25.At this juncture, this Court observes that the suo motu revisions initiated over the past few weeks have been looked upon in some quarters as a sort of witch hunt spearheaded by one Judge of the High Court. It is, therefore, necessary to remind all concerned that thesesuo motu revisions have been exercised not by one Judge but by the High Court, as an institution, to ensure that the streams of criminal justice are not subverted and remain pure and unsullied. The orders of the High Court resonate the voice of not any individual judge but one institution. In other words, decision-making by the High Court is an institutional action and not the action of any particular judge. This is in keeping with the role of the High Court as a constitutional court vested with the power of judicial and administrative superintendence over the courts subordinate to it.

26.Having thus rejected the plea for recusal and the preliminary contentions

raised on behalf of the State and the accused, the Court must now decide the next course of action. Having regard to the issues raised this Court is of the view that submissions on either side are likely to take up some time. Given the fact that a fresh roster will come into effect from the first week of October, these matters can be taken up and heard at length once the next roster is notified by the Court.

27. The Registry is directed to list the matter on 09.10.2023 at 2:15 pm for arguments.

 

14.09.2023

KP

Internet: Yes

Index: Yes/No

Speaking Order/Non-Speaking Order .

To

1.The Vigilance and Anti-Corruption Wing    Viluppuram.

2.The Principal District Court    Vellore.

3.Public Prosecutor

High Court, Madras.

N.ANAND VENKATESH., J.

KP

 

 

SUO MOTU Crl.R.C.No.1419 of 2023

14.09.2023 .