Calcutta High Court
Satish Vishanji Futnani vs Arul Madhusudhan Futnani & Ors on 21 January, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
SPECIAL CRIMINAL JURISDICTION
(CONTEMPT)
ORIGINAL SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
CC 57 of 2012
IA NO: GA 5 of 2024
Satish Vishanji Futnani
Vs.
Arul Madhusudhan Futnani & Ors.
Mr. Kishore Datta, Advocate General
For the Petitioner : Mr. Ranjan Bachawat, Sr. Adv.
Mr. Prabhakar Chowdhury, Adv.
Mr. Satyaki Mukherjee, Adv.
Ms. Mini Agarwal, Adv.
For the Respondent : Mr. Venkatesh Mohanraj, Adv.
No. 1 Mr. Sandip Kumar De, Adv.
Mr. Chinmay Deshpande, Adv
Mr. Abhijit Sarkar, Adv.
For Respondent : Mr. V.T Narendran, Adv.
No. 3 & 4 Mr. Samit Biswas, Adv.
Hearing Concluded on : January 14, 2025
Judgement on : January 21, 2025
DEBANGSU BASAK, J.:-
1. Contemnor No. 1 in CC 57 of 2012 has filed the present
Signed By :
SAYAN
GHOSHAL
High Court of
application seeking this Division Bench in seisin of CC 57 of 2012 to
Calcutta
21 st of January
2025 04:07:43 PM
2recuse from the hearing of such contempt rule as also the connected
applications therein.
2. Learned advocate appearing for the contemnor No. 1 has
submitted that, the Court on diverse dates made various
observations in course of hearing of the contempt rule of the
connected applications which gave rise to reasonable apprehension
of bias. In support of such contention, learned advocate appearing
for the contemnor No. 1 has referred a written notes of arguments
submitted in Court and in particular sentences claimed to be spoken
on June 27, 2024, July 16, 2024, July 23, 2024, August 1, 2024,
August 20, 2024, August 29, 2024, September 19, 2024, November
19, 2024, December 17, 2024.
3. Learned advocate appearing for the contemnor No. 1 has
relied upon 1998 Volume 5 Supreme Court Cases 513 (State of
West Bengal and Others vs. Shivananda Pathak and Others) in
support of the contention that, bias may be defined as a pre-
conceived opinion or a pre-disposition or pre-determination to decide
a case or an issue in a particular manner, so much so that such
disposition does not rule the mind upon the conviction.
4. We had by an order dated November 19, 2024 passed in
presence of the parties, requested the learned Advocate General to
appear in the contempt rule.
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5. Learned Advocate General has submitted that, a prayer for
recusal should be considered from the perspective of the person
making such an application. He has pointed out that, the person
making the application must bring some material on record to
suggest, if not establish that, the Court in seisin of a proceeding has
any pecuniary interest in the outcome of the lis or the Court has
interest in the case or the Court has interest in the cause. He has
contended that, taking the allegations levelled by the contemnor No.
1 to be true and correct, then also, none of such grounds stand
made out. It is not the case of the contemnor No. 1 that, the Court
has any pecuniary interest in the outcome of the lis or has any
interest in the case or in the cause.
6. Learned Advocate General has pointed out that, a Judge of a
Constitutional Court is bound by the oath of Office. In particular, he
has referred to the fact that, a Judge of a Constitutional Court is
required to deliver justice without fear or favour. He has contended
that, should a Judge recuse from a case at the instance of a litigant
who perceives observations made by the Court during hearing not to
be favourable to such litigant, then, administration of justice will fail.
The Judge would be failing to act true to the Oath of his Office. He
has contended that, observations made by the Court are not to be
construed as final decision of the Court. The final decision appears
from the orders or judgments passed by the Court.
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7. Learned Advocate General has relied upon 2016 Volume 5
Supreme Court Cases 808 (Supreme Court Advocate-on-Record
Associations and Another vs. Union of India (Recusal Matter)) in
support of his contentions.
8. Learned Senior Advocate appearing for the petitioner in the
contempt rule has contended that, the Court is yet to arrive at a final
decision in the contempt rule. He has pointed out that, Court has
taken a decision to issue contempt rule by the judgment and order
dated August 1, 2024. Such judgment and order had been assailed
before the Supreme Court by way of a Special Leave Petition which
was disposed of by an order dated August 14, 2024.
9. Learned Senior Advocate appearing for the petitioner in the
contempt rule has contended that, observations made in course of
hearing of an ongoing matter cannot be construed to mean that, the
Court is biased. In support of such contention, he has relied upon
2009 Volume 8 Supreme Court Cases 106 (R.K.Anand vs.
Registrar, Delhi High Court), 2014 Volume 8 Supreme Court
Cases 470 (Subrata Roy Sahara vs. Union of India and Others)
and 2020 Volume 6 Supreme Court Cases 304 (Indore
Development Authority vs. Manohar Lal and Others).
10. Learned Senior Advocate appearing for the petitioner in the
contempt rule has contended that, Shivananda Pathak and
5
Others (supra) has been considered by the Supreme Court in
Indore Development Authority (supra).
11. Shivananda Pathak and Others (supra) has dealt with the
issue as to whether ‘judicial obstinacy’ can be treated as a form of
‘bias’. As the first paragraph of such decision depicts, such issue has
been answered in the peculiar facts involved in the case. In that
case, a judgment and order of a Single Judge was overruled in
appeal by a Division Bench and the same learned Single Judge sat in
another Division Bench in a collateral proceedings between the same
parties to re-write the overruled judgment. In such context, Supreme
Court has held that, the learned Single Judge writing the first
judgment should have dissociated himself from the second Division
Bench as his earlier judgment and direction had been overruled.
12. R. K. Anand (supra) amongst the issues raised therein, has
considered a request for recusal made before the High Court.
Supreme Court in that case has noted that such tendencies and
practices seeking recusal of the Court, perceived to be unfavourable
to a litigant, are on the rise. Supreme Court has held as follows:-
264. We are constrained to pause here for a moment and
to express grave concern over the fact that lately such
tendencies and practices are on the increase. We have
come across instances where one would simply throw a
stone on a Judge (who is quite defenseless in such
matters!) and later on cite the gratuitous attack as a
ground to ask the Judge to recuse himself from hearing a
6case in which he would be appearing. Such conduct is
bound to cause deep hurt to the Judge concerned but what
is of far greater importance is that it defies the very
fundamentals of administration of justice. A motivated
application for recusal, therefore, needs to be dealt with
sternly and should be viewed ordinarily as interference in
the due course of justice leading to penal consequences.
13. Subrata Roy Sahara (supra) has dealt with the issue of
request for recusal made to a Court. It has held that, a demand for
recusal on baseless and unfounded insinuations, calculated
psychological offences and mind games need to be strongly repulsed.
Supreme Court has deprecated such tactics and commended such
an approach to other courts when they experience such behaviour. It
has held that any act of Bench hunting or Bench hopping or Bench
avoiding cannot be allowed. A Judge must not recuse from the
matter unless the Judge should not be hearing it for reasons of
direct or indirect involvement. It has laid down that even in the fact
of calculated psychological offences and mind games Oath of Office
of a Judge to decide every case without fear or favour requires the
Judge concerned to press on with the hearing of the matter and bear
the brunt of the rhetoric of the counsel or party seeking to dissuade
the Court from hearing the matter.
14. Supreme Court Advocate-on-Record Associations and
Another (supra) has summarized the principles of recusal when
warranted. It has held as follows:-
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“25. From the above decisions, in our opinion, the following
principles emerge:
25.1 If a Judge has financial interest in the outcome of a
case, he is automatically disqualified from hearing the
case.
25.2 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.
25.3 The Pinochet case added a new category i.e that the
Judge is automatically disqualified from hearing a case
where the Judge is interested in a cause which is being
promoted by one of the parties to the case.”
15. Indore Development Authority (supra) has held that,
holding a particular view by a Judge on legal issue for or against a
litigating party in previous judgment is no ground for disqualifying
the Judge from being part of Larger Bench on mere asking for
recusal. It has also noted that consequences of Court allowing
parties prayer for recusal of a Judge would amount to permitting
parties to choose Benches to their liking which would open flood
gates for forum shopping and Bench hunting and would destroy the
very edifice of independent judicial system.
16. Petitioner has instituted the contempt proceeding alleging
that the respondents violated orders dated June 17, 2004 passed in
CC 113 of 2004 and CC 114 of 2004. Petitioner has sought to invoke
8
the criminal contempt jurisdiction on the allegation that the subject
property was a part of a Terms of Settlement filed in a civil suit. In
such civil suit party joint receivers had been appointed by the order
dated January 19, 2004. Such joint receivers had taken possession
of the subject property on June 20, 2004. Contemnor No. 1 had sold
such property to contemnor nos. 2, 3 and 4 in violation of orders of
Court and disturbed the possession of the joint receivers.
17. Co-ordinate Bench had by an order dated June 2, 2012
called upon the contemnor herein to show cause as to why criminal
contempt proceedings should not be initiated against them.
Contemnors had filed affidavits pursuant thereto.
18. This Bench has heard the contempt petition from time to
time. Prior to the judgment and the order dated August 1, 2024
passed herein directing issuance of Rule as against the contemnors,
there was no allegation of bias against the Bench. Contemnor No. 1
who has made the present application, had filed a Special Leave
Petition against such judgment and order dated August 1, 2024
which was disposed of by an order dated August 14, 2024. The
allegation of bias have surfaced thereafter. The present application
has been made on September 18, 2024.
19. As has been noted above, request for recusal is on the basis
of apprehension of bias of the Court as against contemnor No. 1.
Authorities cited at the Bar have noted that there are many ways to
9
discover bias. One of them is by evaluation facts and circumstances
of the case. Bias may be discovered by applying the test of real
likelihood for bias or reasonable suspicion of bias. While reasonable
suspicion test looks mainly to outward appearance, real likelihood
tests focuses on the Courts on evaluation of probabilities. Real
likelihood of bias has to be ascertained with reference to right
minded person, that is, whether any right minded person would
consider that there was real likelihood of bias.
20. A litigant in a proceeding may successfully apply for recusal
of the Judge if the Judge has any financial interest in the outcome of
the case or where the Judge is interested in a cause which is being
promoted by one of the parties to the case or there exist any interest
of the Judge in the case which disqualifies the Judge tested in the
light of either of the principle of reasonable danger or reasonable
apprehension of bias.
21. If the first two grounds are established then, the Judge is
automatically disqualified. The third ground requires an enquiry.
22. It is not the allegation of the contemnor no. 1 that any of the
first two grounds exist in the present case. In any event, contemnor
No. 1 did not draw the attention of the Court to any material on
record to suggest existence of any of the first two grounds.
10
23. Question therefore is whether the apprehension of bias
expressed by the contemnor no. 1 is reasonable or there exist real
danger of bias.
24. One of the subject matter of the determination/roaster of this
Bench is assigned by the Hon’ble The Chief Justice is “contempt
applications and review petitions (including applications connected
thereto) of the Division Bench, Hon’ble Judges whereof are not
available due to death, retirement or transfer/elevation”.
25. CC 57 of 2012 appeared in the list of this Court in the
Original Side pursuant to such determination as filed by the Hon’ble
The Chief Justice. It was taken up for the first time by this Court on
December 7, 2023 although the matter was appearing prior thereto.
Noticing that there was an effort for mediation undertaken by the
Hon’ble Supreme Court, petitioner was requested to inform the
Court as to its status.
26. Contempt petition was taken up for consideration on January
9, 2024 and after noticing that, the status quo order passed by the
Hon’ble Supreme Court does not exist any longer, petitioner was
requested to issue fresh notice upon the alleged contemnors and
their advocate and to file an affidavit-of-service to such effect on the
next day. The contempt petition was directed to be listed on
February 8, 2024.
11
27. On February 13, 2024, petitioner and the contemnor No. 1
were represented. It was submitted at the Bar that there was no stay
of the proceedings. However, noticing that a portion of our order
dated January 9, 2024 remained uncomplied with, we dismissed CC
57 of 2012.
28. On a recalling application filed by the petitioner being IA GA
No. 1 of 2024, in presence of the learned advocate appearing for the
petitioner and the respondent No. 1 opportunity to file affidavits were
given.
29. On March 5, 2025, we required the petitioner to serve a copy
of the application for recalling upon the non-appearing respondents
and file an affidavit-of-service to such effect of such date. Such order
was again passed in presence of the petitioner and the respondent
No. 1.
30. On April 18, 2024, after considering the rival contentions in
presence of the petitioner and the respondent No. 1 we allowed IA GA
1 of 2024 and directed listing of the contempt petition on June 18,
2024. Prayer for adjournment made on behalf of the petitioner was
allowed on June 13, 2024 and the contempt petition was directed to
be listed on June 25, 2024. On June 30, 2024, petitioner, contemnor
No. 1 and contemnor Nos. 2, 3 and 4 were represented by advocates.
12
31. Prayer for adjournment made on behalf of the contemnors
was considered and allowed on June 27, 2024. Such order was
passed in presence of the petitioner and all the contemnors.
32. Hearing of the contempt petition commenced on the issue as
to whether Rule should be issued or not. Such hearing took place in
presence of the petitioner and all the contemnors. Since hearing of
all the parties were not concluded, the contempt petition was listed
on July 23, 2024.
33. On July 24, 2024, hearing on such issue was concluded in
presence of the petitioner and all the contemnors.
34. Contemnor No. 1 made an application being GA No. 2 of 2024
by which, contemnor No. 1 sought stay of further proceedings of CC
57 of 2012. An opportunity to file the affidavits therein was granted
to the parties.
35. By a judgment and order dated August 1, 2024 we decided to
issue criminal Rule of contempt against the contemnors. Such Rule
was made returnable on August 20, 2024.
36. Contemnor No. 1 preferred a Special Leave Petitioner being
Special Leave to Appeal (C) No(s) 18239 of 2024 against the
judgment and order dated August 1, 2024. Such Special Leave
Petition was dismissed as withdrawn by the order dated August 14,
2024.
13
37. Contempt Rule was taken up for consideration on August 20,
2024 in presence of the parties. Contemnors were represented by
their learned advocates. An order for protection and preservation of
the subject property was passed. We declined to grant stay of the
contempt proceedings as prayed for in IA GA No. 2 of 2024 which
was disposed of. Another application being IA GA 3 of 2024 made by
the contemnor No. 1 seeking clarification of the judgment and order
dated August 1, 2024 was dismissed.
38. Contempt Rule was taken up for consideration on August 22,
2024. Typographical errors in the order dated August 20, 2024 were
directed to be corrected. After noting the physical presence of the
contemnors in Court, on their prayers, appearance of the
contemnors in Court was dispensed with upon their undertaking to
be present in Court as and when directed. Contempt Rule was
directed to be listed on September 19, 2024.
39. CC 57 of 2012 was taken up for consideration on August 29,
2024, when, application of the contemnor No. 1 being IA GA 4 of
2024 seeking records relating to the assignment of the contempt
applications, was taken up for consideration. Directions for affidavits
were given. Order was passed in presence of the learned advocate
appearing for the petitioner and the contemnor No. 1.
40. The contempt petition was thereafter taken up for
consideration on September 19, 2024 when, by GA 5 of 2024,
14
contemnor No. 1 sought recusal of the Bench on the ground of bias.
Parties were permitted to file affidavits. Orders were passed in
presence of the learned advocate for the contemnors.
41. CC 57 of 2012 appeared in the list on November 19, 2024,
when contemnor No. 1 filed an application being IA GA 6 of 2024
claiming that the petitioner in the contempt petition is guilty of
perjury. Directions for affidavits was granted. Learned Advocate
General was requested to assist the Court. Order was passed in
presence of the petitioner and the contemnor No. 1.
42. Contempt petition along with pending applications were
taken up for consideration on December 17, 2024. Time to file
affidavits in GA 6 of 2024 was extended. Contemnor No. 1 filed GA 7
of 2024 requiring the video recording of the proceedings. Such
application was disposed of after holding that, such video recording
of the contempt proceedings were not made.
43. Contempt petition was thereafter taken up for consideration
on January 15, 2024, when, the hearing of GA 5 of 2024 was
concluded and the judgment was reserved.
44. Till the date of the judgment and order dated August 1, 2024
by which, we decided to issue contempt rule, against the contemnor
No. 1, the contempt petition was heard on various issues for 19
numbers of days. Contemnor No. 1 was represented by advocates on
all of those dates save and except the first two days.
15
45. Video conference facilities are available to the High Court at
Calcutta including this Bench. We have taken assistance of the
Department to find out the dates on which, the contemnor No. 1
logged into the video conferencing platform of this Court. The
contemnor No. 1 was on the video conferencing platform on and from
December 4, 2023. Although, the contemnor No. 1 was not
represented by an advocate on December 4, 2023, December 7, 2023
and January 9, 2024 nonetheless, he was on the video conferencing
platform on such dates. In those dates, he did not respond when the
matter was taken up for consideration. He was keeping a watch of
the proceedings.
46. Contemnor No. 1 logged into the video conferencing platform
on February 8, 2024, February 20, 2024, June 13, 2024, June 25,
2024, June 27, 2024, July 16, 2024, July 23, 2024, August 20,
2024, August 22, 2024, August 29, 2024, September 19, 2024,
November 19, 2024 and December 17, 2024.
47. Allegation of bias made in GA 5 of 2024 was filed on
September 18, 2024. Allegations of bias relate to alleged
observations made by the Court on June 26, 2024 onwards.
48. Prior to GA 5 of 2025 being filed, contemnor No. 1 did not
bring to the notice of the Court that the Court was biased as against
him. It is subsequent to the issuance of the Rule on August 1, 2024
and the Special Leave Petition directed against such judgment and
16
order being dismissed on August 14, 2024 that the allegations
surfaced. Going by the statement of the contemnor No. 1, bias of the
Court did not exist for the period between December 7, 2023 till
June 13, 2024. Between those dates 7 dates or hearing took place.
Allegation of bias made is with effect from the date of June 27, 2024,
that is when the contempt petition was taken up for final hearing in
order to decide whether, a Rule was required to be issued as against
the contemnor No. 1 or not. Significantly till the moving of the
present application on September 19, 2024 contemnor no. 1 made
no allegations of bias in Court. Between June 27, 2024 and
September 19, 2024, both including contempt petition was heard on
9 days.
49. Attribute of biasness by the contemnor No. 1 is directed
towards alleged observations made on June 27, 2024, August 20,
2024, August 29, 2024, September 19, 2024, December 17, 2024.
None of the allegations appears from any of such orders. None of the
orders passed on such dates contain any word which can be
construed to express any bias in favour or against any party to the
proceedings. Matters were taken up on the dates and considerable
time of the Court was consumed in most of those days. Contemnor
No. 1 is trying to pick out a part of a sentence or a sentence entirely
out of context and that too wrong quoting the engagement, in order
17
to give a twist to the engagement between the Court and the counsel
with regard to the merits of the matter.
50. None of the allegations that have been made against the
Court even remotely suggest any of the grounds enumerated in
paragraph 25 of Supreme Court Advocate-on-Record Associations
and Another (supra) stand attracted. The entire attempt of the
contemnor No. 1 is to create an atmosphere by which, a Court is
made to recuse itself. The contemnor No. 1 has filed numbers of
applications on one pretext or the other. He is trying to ensure by his
antics that the decision on the main proceedings is postponed
indefinitely. The proceedings are pending since 2012.
51. Contemnor No. 1 has referred to observations made in Court
while hearing the proceedings, either by the Court or by the learned
counsel appearing for the petitioner. We will not enter into the arena
of whether the quotations highlighted by the contemnor No. 1 are
true and correct or not. A portion of engagement between the learned
counsel for the parties and the Court is highlighted and out of
context to attempt assuaging the misconceived apprehension of bias,
assuming the quotations are true and correct.
52. So far as the Court is concerned, contemnor No. 1 did not
draw our attention to any material in any of our orders or judgments
which discloses that the Court is proceeding with a pre-disposition
with regard to the issues involved. Allegations of bias as against the
18
Court is founded upon questions put to the learned counsels of the
parties in course of hearing or conversations had. It cannot be said
that, the Court cannot put questions or engage in a conversation
with any of the learned counsels appearing for the parties. In course
of submissions at the hearing of the present application, one of the
grievances of the learned counsel appearing for the contemnor No. 1
is that, on one particular occasion, Court did not look at him for the
same period of time as the Court looked at the learned counsel
appearing for the petitioner.
53. In view of the ratio of R. K. Anand (supra), Subrata Roy
Sahara (supra), Supreme Court Advocate-on-Record
Associations and Another (supra), Indore Development
Authority (supra) we have found no ground for recusal.
54. IA No: GA 5 of 2024 is dismissed.
[DEBANGSU BASAK, J.]
55. I agree.
[MD. SHABBAR RASHIDI, J.]
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LATER :-
Learned advocate appearing for the contemnor no. 1 seeks stay of
three weeks. Such prayer is considered and rejected.
[DEBANGSU BASAK, J.]
I agree.
[MD. SHABBAR RASHIDI, J.]