Read Order: Sherry George Vs. GOVT OF NCT OF DELHI 

Mansimran Kaur 

New Delhi, April 14, 2022: The Delhi High Court has observed that the investigation into the cause or reason for recusal by a judge would itself cause intervention with the course of justice and the recusal has to be respected, whether a reason has been spelt-out in detail or not.

The Bench of Justice Asha Menon was considering a petition was filed under Section 482 Cr.P.C. assailing the order dated July 16, 2020 passed by the Special Judge under Prevention of Corruption Act.Directions for registration of FIR had also been sought.

Brief facts of this case were that the petitioner is the  director of a company named Indian Fitness Connect Pvt. Ltd.  Another company named Ozone Spa Pvt. Ltd. through one Jitendra Agnihotri (Chief Accountant of the said company) instituted  an application under Section 156(3) Cr.P.C., against the petitioner and other directors of India Fitness Connect Pvt. Ltd. which is pending before the Metropolitan Magistrate, Saket Courts.

The contention of the petitioner was that the said complainant had sought to influence the court of the Metropolitan Magistrate, as in the order dated August 17,2017 it was so recorded. it was submitted that thereafter, since a grave offence had been committed i.e., the interference with the administration of justice, as well as an offence under Section 12 of the Prevention of Corruption Act read with Section 186 IPC and other penal provisions, the petitioner lodged a complaint dated February 15,2018 at Police Station Saket, but no FIR was registered, despite requests to superior police officers.

As a consequence, the petitioner filed an application under Section 156(3) of Cr.P.C. before Special Judge District Court, Delhi seeking registration of FIR against five named persons and other unknown persons. The Special Judge however, dismissed the application by order dated July 16, 2020. It is this order that was assailed by the petitioner before the Top Court. The petition was dismissed by observing that no investigation was warranted as the identity of the accused persons was well within the knowledge of the petitioner. It was further added that the Metropolitan Magistrate was of the opinion that the influence was exerted by the “unknown persons”, therefore the identity of those unknown persons needed to be established by the police. It was also submitted that the directions for the registration of the case should be given by this Court.

The Counsel for the State submitted that the Special Judge was right in dismissing the petition. It was further added that the petition of the petitioner was baseless and meritless. 

The High Court was of the opinion that there was absolutely no merit in the present petition. The Special Judge was justified in disallowing the application under Section 156(3) Cr.P.C. and directing the registration of an FIR, as no police investigation was required in the matter. However, it was the view of this Court that the Special Judge erred in allowing the petitioner to lead evidence in the complaint filed by her.

According to the Court, the order passed by the Metropolitan Magistrate was a recusal order. A  judgment of the Supreme Court in Association and another vs. Union of India,was stressed upon, wherein it was held that a Judge may recuse himself 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 as that would give the impression that the Judge had been scared out of the case, just by the force of the objection.

The  Court thus said, “…it would be proper to hold that an investigation into the cause/reason for recusal by a judge, particularly, by a litigant, would itself be an interference with the course of justice. When a judge recuses, no litigant or third party has any right to intervene, comment or enquire. The recusal has to be respected, whether a reason has been spelt-out in detail or not. Had a judge refrained from giving a reason for recusal, no one can insist on the judge making such disclosures. The discretion of the concerned judge in the matter of disclosure is absolute.”

It was also stated  that by means of the application under Section 156(3) Cr.P.C, the petitioner was seeking full disclosures by forcing the police to make inquiries from the learned Metropolitan Magistrate who, in order to ensure fairness in the trial, chose to recuse. The Court also remarked that it is entirely on the discretion of the Magistrate Court to decide whether to initiate any contempt or criminal proceedings against the petitioner and the “known person” and the petitioner cannot question the same, which she was trying to by insisting to register the FIR and by filing a complaint case under Section 200 of Cr.P.C

At last, it was stated that it would be setting out on a precipice, if a Judge who recused for disclosed or undisclosed reasons, was then sought to be examined on oath in a complaint case which a litigant before the court chooses to initiate, on the pretext of enquiring into a possible corruption case, and to be compelled to make disclosures under oath that in its considered view were not required while recusing.

In view of above observations, the Court held that the complaint case before the Special Judge was also ought to  have been dismissed. The Court by exercising its inherent powers under Section 482 Cr.P.C. ordered to quash the proceedings arising out of the complaint case and the petition seeking registration of FIR and of quashing the impugned order of the Special Judge was set aside. 

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