IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL CURATIVE JURISDICTION
CURATIVE PETITION ( CIVIL )NO………..OF 2008
IN

REVIEW PETITION NO. D25836 OF 2007

IN

Special Leave Petition (CIVIL)No.21382 OF 2007

BETWEEN

Dr. KUNAL SAHA ......CURATIVE PETITIONER

Versus

WEST BENGAL MEDICAL COUNCIL &ORS ......RESPONDENTS

INDEX

SL. No. PARTICULARS COPIES CT. FEE

1. 1. Impugned order dated 24.7.2008.
Passed by this Hon'ble court
In Review Petition No.(civil) No.D25836 of 2007 1 +
2. Curative Petition with Affidavit
1 +
3. Certificate of Senior Advocate Advocate 1 +

PLACE : NEW DELHI
DATED:
(SHASHI BHUSHAN)
Advocate for the Curative Petitioner
305,New Lawyers’ Chambers,
Supreme Court
Bhagwan Das Road
NEW DELHI 110 001
CODE NO. 1399

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (C) NO. D25836 OF 2007
IN
S.L.P.(C) NO.21382 OF 2007

DR. KUNAL SAHA …….PETITIONER.

VERSUS

WEST BENGAL MEDICAL COUNCIL & ORS. …..RESPONDENTS.

ORDER

Delay condoned.

We have gone through the review petition and the connected records.

We do not find any merit in the same. The review petition is dismissed.

………………………CJI
(K.G. BALAKRISHNAN)

…………………………J
(TARUN CHATTERJEE)

…………………………J
(R.V.RAVEENDRAN)

NEW DELHI:
JULY 24, 2008.

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL CURATIVE JURISDICTION

CURATIVE PETITION (CIVIL) NO….OF 2008
IN
REVIEW PETITION NO.D25836 OF 2007
IN
SPECIAL LEAVE PETITION(CIVIL) NO.21382 OF 2007

IN THE MATTER OF:

1. Dr. Kunal Saha
R/o3937-Kul Circle South,
Hiliard, OH 43026,USA
Presently residing at
Subol Apartment (3rd Floor)
7 Nilgunge Road
P.O. Belghoria
Kolkata- 700056,West Bengal. …. CURATIVE PETITIONER

VERSUS

1. The West Bengal Medical Council,
8, Lyons Range, 3rd floor
Kolkata-700 001, West Bengal.

2. The Registrar and Secretary,
West Bengal Medical Council
Working for gain at
8, Loyns Range, 3rd floor,
Kolkata-700 001.

3. Dr. Ashok Chowdhury
President, West Bengal Medical Council
Working of gain at
8, Loys Range,3rd floor,
Kolkata-700 001.

4. Dr. Sukumar Mukherjee,
Residing at 1/1A Tara Road,
Kolkata

5. The State of West Bengal,
Through the Secretary,
Department of health,
Writers’ buildings,
Kolkata-700001. …..RESPONDENTS

AND

IN THE MATTER OF:-

CURATIVE PETITION AGAINST THE JUDGMENT & ORDER DATED 3rd AUGUST 2007 PASSED BY
THIS HON'BLE COURT IN SPECIAL LEAVE PETITION (C) NO. 21382 OF 2007 AND ORDER DATED 24.07.2008 PASSED IN REVIEW PETITIN (CIVIL) NO. D25836 OF 2007.

TO

HON'BLE THE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUDGES OF THIS
HON'BLE COURT.

THE HUMBLE PETITION ON
BEHALF OF THE PETITIONER
ABOVE NAMED

Most Respectfully Showeth :-

1. The present curative petition is being filed by the Curative petitioner for reconsideration of the judgment and order dated 03.08.2007 (herein after referred to as the ‘impugned judgment”) whereby Special Leave Petition (Civil ) No.21382 of 2007 preferred by the petitioner was dismissed and subsequently the Review Petition, bearing R.P.(C) No.-D25836 of 2007, filed the petitioner was also dismissed by this Hon'ble court by an order dated 24.07.2008.

2. That the main questions involved in the aforesaid Special Leave Petition were as to :
i) Whether a court can ignore the fact that there was grave miscarriage of justice in an investigation by a professional body (West Bengal Medical Council or WBMC) while passing a judgment against the justice seeker for failure of his legal representative to attend the final hearing of a complaint against the errant doctors for causing death of petitioner’s wife?
ii) Whether the fact that the Chairman’s open remarks and his evidence as a witness in the connected case against the Complainant and in favour of the delinquent doctors, clearly disqualified him from taking a decision?
iii) Whether a biased Chairman continue to sit in the proceedings and take a biased decision by merely saying that though he presided over, he did not actively participate in the proceedings and therefore his presence did not work as a vitiating factor ?
iv) Whether the observations made in the “final order” by the WBMC should be considered as infallible when overwhelming evidences point to the contrary?
v) Whether the courts below acted in an iniquitous manner to accept the “final order” passed by the WBMC without looking into the facts and recorded evidences in the case?

vi) Whether the court below was justified to conclude that the petitioner was deliberately “stalling the proceedings” when the truth is exactly the opposite?
Vii) Whether the court below made a serious error in judgment by holding the petitioner responsible for the alleged failure on part of his Advocate?
Viii) Whether the court below remained oblivious of the fact that even the appearance of “bias” and not an actual “bias” is justified for removal of the WBMC president (Respondent No.3) from participating in the investigation of the complaint by the petitioner?
ix) Whether in a test of “bias” there should be a real likelihood of “bias” in view of the prevailing circumstances in a particular case?
x) Whether the court below lost sight of the fact that the Respondent No.3 who presided over the investigation of the complaint against the Respondent No.4 was personally known to the Respondent No.4 for the “past 30-40 years”?
xi) Whether the court below has failed to apply its mind to consider that the Respondent No.3 was a “hostile” witness against the petitioner while testifying in a criminal case against Respondent No.4?
xii) Whether the Hon'ble Division Bench was justified in allowing Mr. Balai Roy the sitting Advocate General of the State to argue on behalf of a private citizen (Respondent No.4) defending charges of medical negligence even without any prior permission from the government or other appropriate authority?
Xiii) Whether there is any possibility for an “alternative remedy” from the State health department when the health secretary has admitted under oath that there is no “advisory or supervisory” role of the health department over the WBMC?

3. That the petitioner herein sought review of the said judgment dated 03.08.2007 mainly on the grounds and/or for the reasons that:

A) Because the dismissal of the special leave petition (SLP Civil No. 6422/2007) by the three-judge bench of the Hon’ble Supreme Court is inherently flawed as it contradicts the explicit opinions expressed for deciding allegation of “bias” by a Constitution bench in Yadav vs. State of Haryana (AIR 1987 SC, 454).

B) Because while settling out the fundamental principles for adjudicating cases involving allegation of “bias”, a Constitution Bench of this Hon’ble Court in Yadav vs. State of Haryana (AIR 1987 SC, 454) has categorically stated, “the question is not whether the judge is actually biased or in fact, decides partially, but whether there is a real likelihood of bias”.
C) Because the Constitution Bench of this Hon’ble Court in Yadav vs. State of Haryana (AIR 1987 SC, 454) has clearly stated that a “likelihood of bias” is sufficient to satisfy the legal principles to establish a case of “bias” as the court has observed, “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 view of the discussion made above, there can be no doubt about the presence of at least a “likelihood of bias” on part of the Respondent No. 3 against the Petitioner and in favour of the Respondent No. 4 in the course of investigation of petitioner’s complaint for wrongful therapy by the Respondent No. 4.

D) Because in Yadav vs. State of Haryana (1987), the Constitution Bench has categorically stated that the issue of a “likelihood of bias” may arise from personal reasons such as “hostility” towards one party or ‘friendship” with the other party. Irrefutable evidences exist in this case that clearly indicate a “hostile” attitude of the Respondent No. 3 against the Petitioner and a long-term “friendly” relationship with the Respondent No. 4.

E) Because the basic principle underlying the rule of “bias” must consider that justice must not only be done but it must also appear to be done. This rule has received wide recognition in numerous decisions by this Hon’ble Court and has also been affirmed in Yadav vs. State of Haryana (1987) by the Constitution Bench. In this regard, the Constitution Bench has observed, “What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision.”

F) Because the proceedings before a tribunal, selection committee or quasi-judiciary body like the “medical council” could be vitiated by mere participation of a single member who is “friendly” toward the accused or “hostile” toward the complainant even if the member does not take part in the deliberation and even though the final decision is taken jointly by other members in the committee. In the historic judgment in A.K. Kraipak vs Union of India (AIR 1970 SC, 150), this Hon’ble Court has held, “In a group deliberation, each member of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner. It is no wonder that the other members of the selection board are unaware of the extent to which his opinion influenced their conclusions”. On this issue, the Constitutional Bench (Yadav vs. State of Haryana, 1987) has also noted, “We must straightaway point out that A.K. Kraipak's case is a landmark in the development of administrative law and it has contributed in a large measure to the strengthening of the rule of law in this country. We would not like to whittle down in the slightest measure the vital principle laid down in this decision which has nourished the roots of the rule of law and injected justice and fair play into legality.”
In A.K. Kraipak vs Union of India (1970), the allegedly “biased” member in a selection committee did not even participate in the interview of the relevant candidate against whom he was accused of being “biased”. In analyzing the judgment in Kraipak vs Union of India, the Constitution Bench has further observed, “It would not be enough for such member merely to withdraw from participation in the interview of the candidate related to him, but he must withdraw altogether from the entire selection process and ask the authorities to nominate another person in his place on the selection committee, because otherwise all the selections made would be vitiated on account of reasonable likelihood of bias affecting the process of selection.” (emphasis added)

G) Because the legal rules of “bias” is not confined only with judicial cases and the same rules must also be applied in all cases before a tribunal, selection committee or quasi-judiciary body. As clearly emphasized by the Constitution Bench in Yadav vs. State of Haryana (1987), “It is also important to note that this rule [of “bias”] is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties.” The Constitution Bench has further elaborated on this issue, “Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare state where the jurisdiction of administrative bodies in increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner.”

H) Because apart from the question of “bias”, Petitioner’s original SLP (Civil No. 6422 of 2007) also contained specific allegations of blatantly reckless medical therapy by the Respondent No. 4. The factual basis and merit of this case was never looked into by the lower courts. In fact, in spite of categorical direction from this Hon’ble Court (in the final order dated 3-4-2006 in the related SLP Civil No. 17453/2003) to decide the appeal against the final decision of the WBMC on the basis of “merit”, the courts below have never looked into the merit of this case. A quick perusal of the facts of this case and supporting evidences produced by the Petitioner in the original SLP would establish beyond the shadow of any doubt that gross medical negligence was the cause of death of Petitioner’s wife and that the WBMC had acquitted the Respondent No. 4 in the most capricious manner and with an oblique motive without considering the evidence. Unfortunately, the courts below have also never cared to judge the case on its merit and submitted evidences.
4. It is submitted with utmost respect that the aforesaid grounds and /or reasons have not been considered at all while dismissing the Review Petition. It is submitted that the judgements of this Hon'ble Court in A.K. Kraipak vs Union of India (AIR 1970 SC, 150) and Yadav vs. State of Haryana (AIR 1987 SC, 454) were not considered at all by this Hon’ble Court while dismissing the said Review Petition with a non-speaking order. As such, it is submitted with utmost respect that glaring errors do still persist in the said judgment dated 03.08.2007 causing serious injustice and prejudice to the petitioner herein. By way of this Curative petition, the petitioner humbly seeks for reconsideration of the impugned Order dated 03.08.2007 to cure the grave and manifested injustice that have occurred in the instant case and to prevent perpetuation thereof.

5. In the present case, the West Bengal Medical Council (WBMC), a governmental statutory and administrative body empowered to control the practice of medicine within the state, had the moral as well as legal duty to investigate a serious complaint of medical negligence resulting in the death of Petitioner’s wife in a fair and impartial manner. The presence or even appearance of a “biased” attitude on part of any member, especially the Respondent No. 3, the member who presided over the entire investigation, would certainly violate the fundamental principles that are essential for a fair and equitable decision, as established by a Constitution Bench of this Hon’ble Court. As narrated above, direct participation of Dr. Ashok Chowdhury, Respondent No. 3, who was also the President of the WBMC, in the investigation of the complaint of your petitioner against the Respondent No. 4 has vitiated the investigation process and undoubtedly made the final decision of the WBMC investigation a travesty of justice.

6. As elaborated in the original SLP, Dr. Ashok Chowdhury (Respondent No. 3) has shown a clearly “biased” attitude against the Petitioner and in favour of the Respondent No. 4 as would be evident from a plethora of undeniable evidences present in this case as summarized below:

i) Direct derogatory comments against Petitioner: The Respondent No. 3 has made numerous inflammatory and directly defamatory allegations in public against the Petitioner even during the ongoing investigation by the West Bengal Medical Council (WBMC) that he was presiding over.

ii) Direct support for the accused doctor (Respondent No. 4): The Respondent No. 3 has also expressed candid opinions in support of the treatment provided by the accused doctors including the Respondent No. 4 while still conducting the ongoing investigation at the WBMC.

iii) Hostile attitude towards the Petitioner: The Respondent No. 3 has expressed clearly hostile attitude towards the Petitioner and his legal counsel when they went to the office of the WBMC to attend hearing of the complaint. This fact has been presented before the Calcutta High Court through supplementary affidavits by the Petitioner and his legal counsel.

iv) “Hostile” witness in the “criminal” trial: The Respondent No. 3 had to be declared a “hostile witness” when he was summoned by the Petitioner to testify in a related but separate “criminal” trial against the Respondent No. 4 (and two other doctors). As the Respondent No. 3 was hell bent on defending the Respondent No. 4 during his “examination in chief”, the Petitioner was compelled to seek permission from the court to allow him to put questions as done during “cross-examination”, which was granted by the trial court during the criminal trial in Kolkata; The said “criminal” case against the Respondent No. 4 (and two other doctors) is presently pending before this Hon’ble Court for final adjudication as Criminal Appeal Nos. 1191-1194 of 2005.
v) Long-lasting personal acquaintance with the accused: The Respondent No. 3 has made unequivocal admission during his deposition in the “criminal” trial that he personally knew the accused doctor, the Respondent No. 4, for the past “30-40 years” and that he met with the Respondent No. 4 on many occasions even during the ongoing investigation by the WBMC.

vi) Pointing fingers to other doctors: While still conducting the ongoing investigation against the Respondent No. 4 at the WBMC, the Respondent No. 3 during his own cross-examination in the “criminal” trial, deliberately refused to make any comment that might implicate the Respondent No. 4, who was charged with causing wrongful death of Petitioner’s wife. However, the Respondent No. 3 was unhesitant to declare the name of other doctors as “responsible” for the wrongful treatment of Petitioner’s wife. The Respondent No. 3 has also made categorical statements in major newspapers in Calcutta defending the Respondent No. 4 and accusing other doctors while still presiding over the investigation at the WBMC.

vii) Refusal to relinquish position as presiding officer: The Respondent No. 3 has vehemently refused to recuse himself as the presiding Officer of the WBMC investigation against Respondent No. 4 even after the Petitioner made specific prayer for his removal from the Committee for the ends of justice. Ironically, after concluding the entire investigation as the President, the Respondent No. 3 has claimed that he did not participate in the final deliberation even though he signed the final judgment on behalf of the medical council. The said final judgment dated 18.6.02 from the WBMC has been annexed with SLP (C) No.21382 as ANNEXURE – 13

7. The undisputed facts of the instant case would show that the Respondent No. 3, the alleged “biased” member and President of the WBMC, not only did not withdraw from the investigation process but he also continued to work as the presiding officer in this investigation. It is interesting to note that the Respondent No. 3 has claimed that while presiding over the investigation against the Respondent No. 4, he did not participate in the final deliberation. However, Respondent No. 3’s signature is very much visible on the final order by the WBMC (ANNEXURE P-13 of the SLP).

8. Considering the facts of the present case as narrated and summarized in the original SLP, it is only natural to have an apprehension in the mind of the Petitioner that the decision (by the WBMC) of acquittal of the Responded No. 4 was tainted with “bias” since a person (Respondent No. 3) who was clearly “hostile” towards the Petitioner and who admittedly personally knew the accused doctor (Respondent No. 4) for the “past 30-40 years”, conducted and presided over the entire investigation by the medical council. Even if the Respondent No. 3 had acted in the most unbiased and impartial manner in discharging his duties, it cannot be said that justice was “appeared to be done” in this case.

9. It is in this background that the petitioner is filing the present curative petition. This curative petition is under procedure established by this Hon'ble court in Rupa Ashok Hurra Vs. Ashok Hura 2002(4) SCC 388 wherein this Hon'ble Court held that:

“42. ….. We are of the view that though judges of the highest court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of rare cases which would require reconsideration of final judgment to set right miscarriage of justice complained of. In such case, it would not only be proper but obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question, we are persuaded to hold that the duty to do so justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in the public interest that a final judgment of the final court in the country should not be open to challenge, yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice”.

“49. …. This court, to prevent abuse of its process and to cure a gross miscarriage of justice may reconsider its judgments in exercise of its inherent powers”.

“50. …… It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained….”

10. Through this Curative Petition, the Petitioner, seeks reconsideration of the judgment, inter alia, on the following Grounds which are independent and without prejudice to each other:

GROUNDS

(I) For that the dismissal of the Review petition has led to an anomalous situation in as much as the said judgement and order 03.08.2007 is in direct conflict with the ratio enunciated in A.K. Kraipak vs Union of India (1970). This Hon’ble Court has held,
“In a group deliberation, each member of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner. It is no wonder that the other members of the selection board are unaware of the extent to which his opinion influenced their conclusions”.
II) For that the said judgement and order 03.08.2007 is in conflict with the ratio enunciated by the Constitution Bench in Yadav vs. State of Haryana (AIR 1987 SC, 454) wherein Hon'ble Court categorically stated,
“the question is not whether the judge is actually biased or in fact, decides partially, but whether there is a real likelihood of bias”.

III) For that the Constitution Bench of this Hon’ble Court in Yadav vs. State of Haryana (AIR 1987 SC, 454) has clearly stated that a “likelihood of bias” is sufficient to satisfy the legal principles to establish a case of “bias” as the court has observed, “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.” There can be no doubt about the presence of at least a “likelihood of bias” on part of the Respondent No. 3 against the Petitioner and in favour of the Respondent No. 4 in the instant case.

IV) For that in Yadav vs. State of Haryana (1987), the Constitution Bench has categorically stated that the issue of a “likelihood of bias” may arise from personal reasons such as “hostility” towards one party or ‘friendship” with the other party. Irrefutable evidences exist in the instant case that clearly indicate a “hostile” attitude of the Respondent No. 3 against the Petitioner and a long-term “friendly” relationship with the Respondent No. 4.

V) For that the basic principle underlying the rule of “bias” must consider that justice must not only be done but it must also appear to be done. This rule has received wide recognition in numerous decisions by this Hon’ble Court and has also been affirmed in Yadav vs. State of Haryana (1987) by the Constitution Bench. In this regard, the Constitution Bench has observed, “What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision.”

11. It is submitted that all the aforesaid grounds were taken in the review petition which was dismissed by circulation by an order dated.24.7.2008 of this Hon'ble court. There exist very strong reasons to entertain this curative petition seeking reconsideration of the impugned judgment dated 3th September 2007 and order dated 24.7.2008., dismissing the Review Petition filed against the Same.

12. That the certificate dated 12.11.08 by Mr. M.N.Krishnamani , Senior Advocate that the curative petition fulfils the requirements as per guidelines laid down in aforesaid judgment is being filed herewith.

13. That no other Curative petition against the said orders dated 03 rd August 2007 and 24 th July 2008 have been filed.

PRAYER

In the facts and circumstances stated above, it is prayed that this Hon'ble court may be pleased to:
(a) Set aside and recall the judgment and order dated 03.08.2007 in Special Leave Petition (civil) No.21382 of 2007 and the Order dated 27.07.2008 in Review petition (Civil)No. D25836 of 2007.
(b) Pass Such further order/ orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
Curative petitioner

Drawn & Filed by

( SHASHI BHUSHAN )
Advocate for the curative petitioner

New Delhi
Dated: .11.08

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL CURATIVE JURISDICTION

CURATIVE PETITION (CIVIL) No. _________ of 2008
IN
REVIEW PETITION (C) NO. D25836 OF 2007
IN
S.L.P.(C) NO.21382 OF 2007

In the Matter of:-

Dr.KUNALSAHA …….PETITIONER.

VERSUS

WEST BENGAL MEDICAL COUNCIL & ORS. …..RESPONDENTS

AFFIDAVIT

Affidavit of Malay Kumar Ganguly, Resident of Subol Apartment (3rd Floor), 7, Nilgunge Road, P.O. Belghoria, Kolkata-700 056, West Bengal, presently at New Delhi.

I, the deponent above named do hereby solemnly affirm and declare as under:-

1. That I am the power of attorney holder of Dr.Kunal Saha the curative petitioner herein in the aforesaid Curative Petition and competent to swear this Affidavit.
2. That the contents of the accompanying Curative Petition from Page_____ to _____ are true and correct to the best of my knowledge and belief.
3. That the annexures are true and correct copies of their respective originals.
4. That the accompanying Curative Petition has been prepared and drafted under my instructions. I say that the facts stated in

the Curative Petition are true and correct to my knowledge. No part of it is false and nothing material has been concealed there from.

Verified at New Delhi on this the _______ day of November 2008.

DEPONENT

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL CURATIVE JURISDICTION
CURATIVE PETITION ( CIVIL )NO………..OF 2008
IN

REVIEW PETITION NO. D25836 OF 2007

IN

Special Leave Petition (CIVIL)No.21382 OF 2007

BETWEEN

Dr. KUNAL SAHA ......CURATIVE PETITIONERS

Versus

WEST BENGAL MEDICAL COUNCIL &ORS ......RESPONDENT

CERTIFICATE

I examined the matter minutely. It is a clear case where the Chairman of the West Bengal Medical Council, who was admittedly having bias against the petitioner presided over the medical council proceedings into his complaint. While he presided over the meeting, since he is conscious of his bias, he allegedly said in the meeting that he would not actively participate in the proceedings. Whether, this is permissible is the moot question.

The 3rd respondent is clearly disqualified to be in the committee which took a quasi-judicial decision. Even as to a purely administrative decision, in AK Kraipak (Air 1970 SC 150), this Hon’ble Court decided that an interested person’s mere presence in the committee is likely to influence other members of the selection committee. In Kraipak too, when his own turn for selection came, the member concerned stepped down and allowed other members of the Selection Committee alone to decide the matter. Such ruses and contrivances to overcome the difficulty posed by the Rules of Natural Justice were not permitted by this Hon’ble Court since there is another fundamental principle that what can not be done directly will not be permitted to be done even indirectly by an attempt to circumvent the law.

This is the issue which arises for consideration in the instant case. The petitioner-complainant did not get a fair deal. The decision of the High Court is diametrically contrary to the decisions of the Supreme Court particularly AIR 1970 SC 150 (A.K. Kraikpak) and AIR 1980 SC 454 (Yadav Vs. State of Haryana). Though Kraipak’s case was decided by a 2-Judges bench, Yadav’s case was decided by a Constitution Bench of Five-Hon’ble Judges.

The bias of the 3rd respondent is glittering on its face. He ought to have recused himself. In this Hon’ble Court even if a learned Judge had dealt with a matter in the High Court at some interlocutory stage, he recuses himself in order to uphold the high principles of Rule of Law that even by a remote chance, a litigant shall not get a feeling that he was meted out injustice because of the bias-factor working against him. That is why the fundamental rule that : “Justice should not only be done, but it should be manifestly seen to be done.”

In the instant case whether respondent No.3 had bias is beyond question. He himself is aware of this factor of “reasonable likelihood of bias”, which is the test in such cases and formally takes up a stand that in view of his bias, he refrained from actively participating in the proceedings. This adds to the bias. Such pleas are not countenanced in bias-cases. That would lead to people with bias circumventing law.

In view of this crucial aspect I am of the view that the instant case will fall in Curative Jurisdiction. This point was taken in the Special Leave Petition. Again this point was squarely taken in the Review Petition as well. Unfortunately without proper application of mind, the Review Petition was dismissed and without a speaking order.

In my view, since grave injustice was caused to the petitioner, the instant case would fall under para 49, para 62 and para 69 of Hurra’s judgment reported in 2002 (4) SCC 388.

(M.N. KRISHNAMANI)
Sr. Advocate