- (1.)THE present petition is filed by one Janakbhai Dinkarbhai Doshi - husband of respondent no. 1 Rupalben Janakbhai Doshi and father of respondent no. 2 minor baby named Dhruvi, represented through Rupalben Janakbhai Doshi praying that:
6 [a] to allow this petition and issue a direction to transfer Criminal Misc. Application No. 82 of 2008 have been going on in the Family Court at Rajkot, presided over by the learned Principal Judge, to the other Family Court at Rajkot.

(2.)HEARD , learned Advocate Mr. JT Trivedi for the applicant, Mr. Pranav Raval for respondent nos. 1 and 2, and learned Additional Public Prosecutor Mr. DG Vyas for the respondent no. 3 State.
2.1 The learned Advocate for the petitioner vehemently argued that the application should be allowed and the relief prayed for should be granted in light of the fact that the petitioner is having 'reasonable apprehension' that he will not be able to get justice at the hands of the learned Principal Judge, Family Court at Rajkot.

2.2 The learned Advocate for the petitioner, giving facts of the present case, submitted that, an application for maintenance was filed by the respondents herein in the year 2004 being Application No. 723 of 2004. The same was transferred to the Family Court at Rajkot and it was renumbered as the Criminal Misc. Application No. 82 of 2008. He submitted that the said application was on board on 28th April 2009. On that day the petitioner herein gave an application for adjournment on the ground that, 'he has to attend a meeting, convened by the Collector in connection with the election'. The learned Advocate for the petitioner vehemently submitted that it was the 'first application for adjournment' given by the petitioner in the proceedings. The learned Advocate for the petitioner submitted that the matter was then kept on 14th May 2009. On 14th May 2009, the petitioner gave an application for adjournment on the ground that, 'the petitioner is suffering from Backache' accompanied by a Medical Certificate. The learned Advocate for the petitioner submitted that the matter was adjourned to 29th May 2009, which is thereafter, referred to as 'tentative adjournment'. But, thereafter, the matter was adjourned to 21st May 2009. The learned Advocate for the petitioner submitted with all vehemence that this method of giving 'tentative adjournment' is unknown to the Courts and therefore, that is the starting point for the 'reasonable apprehension' on the part of the petitioner to the effect that he will not get justice at the hands of the Principal Judge of the Family Court at Rajkot.

2.3 The learned Advocate for the petitioner submitted that there is nothing like 'tentative adjournment'. The matter is either adjourned or not adjourned. If it is adjourned, it is adjourned to a particular date. He submitted that he has not come across this term 'tentative adjournment'. The learned Advocate for the petitioner produced a Certified Copy of Rojkam and submitted that it is recorded in the Rojkam that the matter is adjourned to 21st May 2009. He submitted that though the matter was adjourned to 29th May 2009 and petitioner's Advocate also was conveyed the same, it is later on changed, this is nothing but doing injustice to the petitioner. The learned Advocate for the petitioner submitted that, that being so, the learned Principal Judge has not recorded the correct Rojkam and warrants a separate, strict action against the Principal Judge of the Family Court.

2.4 The learned Advocate for the petitioner submitted that on 21st May 2009, as the petitioner did not know about that date, could not remain present. The Court was pleased to keep the matter on 26th May 2009 for taking into consideration exh. 61 and exh. 68. The Rojkam records that the matter was kept for hearing and for evidence. On 26th May 2009, again, the matter was adjourned to 27th May 2009 for hearing of exh. 63 and exh. 68. On 27th May 2009, the applicant was not present but the Advocate for the applicant was present and the Court passed order below exh. 63 -A and exh. 68 and the matter was adjourned to 9th June 2009 for further evidence. The learned Advocate for the petitioner invited attention of the Court to the following part of the order passed below exh. 68 in Criminal Misc. Application No. 82 of 2008: ...The Advocate of the applicant had again informed the Advocate for the opponent to remain present on 27/5/2009 in the morning and had given him information that he has filed a document in the Court before the orders are passed below Exhibit 68. The matter was kept on 27/5/2009 for orders and the Advocate for the opponent appeared and in fact he requested for time orally and was unable to give any reason, why a false certificate is produced in the Court...

2.5 The learned Advocate for the petitioner also invited attention of the Court to the following part of the aforesaid order, which reads as under: It was held by the Hon'ble High Court that the Family Court is a Court and as such High Court has powers under section 22 to 24 of C.P.C. to transfer a case relating to the matters dealt with by explanation to sub -section 1 of section 7 of the Act and likewise has powers under section 407 of Cr.P.C. To transfer a case relating to Chapter IX of Cr.P.C. In the present case, in fact, this matter was kept for the orders on application at Exhibit 63A and Exhibit 62 on 21/5/2009 and the Advocate has argued before the Court to decide the application at Exhibition 68 i.e. the present application and not to pronounce the order passed below Exhibit 63A and Exhibit 61...

2.6 The learned Advocate for the petitioner then invited attention of the Court to the following portion of the aforesaid order, which reads as under: ...Earlier, the opponent was examined on 28/2/2007 and in fact the cross examination of the opponent was also over and thereafter this matter is prolonged 'on one pretext or the other'. So, in my opinion, looking to the record of the case, the matter should not be entertained, which is only filed to prolong the matter. Transfer application filed is no maintainable and even if this Court would have powers to transfer the application, the opponent has no reasonable ground to transfer this application to other Court....

(3.)THE learned Advocate for the petitioner wanted to make capital out of this phrase, 'on one pretext or the other'. He submitted that the use of this phrase, 'on one pretext or the other', shows the bias mind of the learned Principal Judge. He submitted that, before using such a phrase, the Principal Judge ought to have taken care of scanning the entire record of the matter and should have taken note of the fact that it was only on 28th April 2009 that the petitioner had applied for adjournment for the first time and it was for the second time on 14th May 2009, he had applied for adjournment on the ground of backache and that application was supported by Medical Certificate. He submitted that, to say that, 'the Medical Certificate was not true', also suggests that the Principal Judge was bias against the petitioner and therefore, the petitioner is having 'reasonable apprehension' that he will not be able to get justice at the hands of Principal Judge and therefore, this matter is required to be transferred from this Court to the Court of another learned Judge of the Family Court at Rajkot.
3.1 In support of his submissions, the learned Advocate for the petitioner relied upon a decision of the Honourable the Apex Court in the matter of Manak Lal, Advocate, Appellant V/s. Dr. Prem Chand Singhvi and others, 1957 AIR(SC) 425. The learned Advocate for the petitioner submitted that this decision is a good law even till date, as this decision is not overruled by any subsequent decision. He submitted that it would have been in fitness of things, if he reads the entire judgment but then, with a view to see that Court's time is not consumed, he restricted his reading only to Para 4 and 6, which are reproduced hereunder, for ready perusal: (4) Shri Daphtary contends that the tribunal appointed by the learned Chief Justice of the High Court of Rajasthan to enquire into the alleged misconduct of the appellant was improperly constituted and all proceedings taken before the tribunal, the report made by it and the subsequent order passed by the High Court pursuant to this report are all invalid. This point arises in this way. The tribunal consisted of three members with Shri Changani as it, -, Chairman. It is common ground that Shri Chhangani had filed his vakalat on behalf of Dr. Prem Chand in proceedings under s. 145 of the Code of Criminal Procedure on August 23, 1952, and had in fact argued the case on that date. Shri Daphtary contends that since Shri Chhangani had appeared in the criminal proceedings in question for the opponent he was disqualified from acting as a member of the tribunal and this disqualification introduces a fatal infirmity in the constitution of the tribunal itself There is some force in this argument. It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi -judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not Whether in fact a bias has affected the judgment; the test always is and must be whether a, litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it, is often said that justice must not only be done but must also appear to be done. As Viscount Cave L. C. has observed in From United Brewerses Co. V/s. Bath Justices (1) " this rule has been asserted not only in the case of Courts of Justices and other judicial tribunals but in the case of authorities which, though in no sense to be called Courts, have to act as judges of the rights of others ". In dealing with cases of bias attributed to members constituting tribunals, it is necessary to make a distinction between pecuniary interest and prejudice so attributed. It is obvious that pecuniary interest, however small it may be in a subject -matter of the proceedings, would wholly disqualify a member from acting as a judge. But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant, or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case. "The principle says Halsbury, "nemo debet esse judex in causaproprta sua precludes a justice, who is interested in the subject matter of a dispute, from acting as a justice therein " (2). In our opinion, there is and can be no doubt about the validity of this principle and we are prepared to assume that this principle applies not only to the justices as mentioned by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties.

(6) It has, however, been urged before us by Shri Umrigar, on behalf of the Advocate -General, that this principle should not be applied to the proceedings before the tribunal appointed under the Bar Councils Act. He contends that the tribunal is not empowered to pass final orders on the enquiry and that the report made by the tribunal is, in every case, to be submitted to the High Court for the final decision of the High Court. We are not impressed with this argument. If it is true that in judicial or quasi -judicial proceedings justice must not only be done but must appear to be done to the litigating public, it is equally true that when a lawyer is charged for professional misconduct and is given the privilege of being tried by a tribunal of the Bar Council, the enquiry before the tribunal must leave no room for a reasonable apprehension in the mind of the lawyer that the tribunal may have been even indirectly influenced by any bias in the mind of any of the members of the tribunal. In the present case, we have no hesitation in assuming that when Shri Chhangani agreed to work as the Chairman of the tribunal, he did not remember that he had appeared against the appellant's clients in the criminal proceedings under s. 145. We are told that Shri Chhangani is a senior member of the Bar and was once Advocate -General of the High Court of Rajasthan. Besides he had not appeared in the case at all stages but had appeared only once as a senior counsel to argue the matter. It is, therefore, not at all unlikely that Shri Chhangani had no personal contact with the client Dr. Prem Chand and may not have been aware of the fact that, in the case from which the present proceedings arose, he had appeared at any stage for Dr. Prem Chand. We are, however, inclined to hold that this fact does not in any way affect the legal argument urged before us by Shri Daphtary. It is not Shri Daphtary's case that Shri Chhangani actually had a bias against the appellant and that the said bias was responsible for the final report made against the appellant. Indeed it is unnecessary for Shri Daphtary to advance such an argument. If Shri Chhangani was disqualified from working as a member of the tribunal by reason of the fact that he had appeared for Dr.' Prem Chand in the criminal proceedings under s. 145 in question, then it would not be necessary for Shri Daphtary to prove that any prejudice in fact had been caused or that Shri Chhangani improperly influenced the final decision of the tribunal. Actual proof of prejudice in such cases may make the, appellant's case stronger but such proof is not necessary in order that the appellant should effectively raise the argument that the, tribunal was not properly constituted.

3.2 The learned Advocate for the petitioner submitted that the test, which is required to be undertaken, in the matter of an application for transfer is, whether there is any 'apprehension' in the mind of a litigant about the trial 'not being judicially conducted', trial 'not being impartially conducted', trial 'not being objectively conducted' and trial 'not being conducted without any bias'. He submitted that if the answer to any of the aforesaid questions is in negative, then that is sufficient for passing an order of transfer of the matter from one Judge to another. The learned Advocate for the petitioner submitted that he is not asking for a transfer of the matter outside the District, but he is asking for transfer of the matter in the Family Court itself at Rajkot but from one Judge to another.

The Court, having examined the submissions made by the learned Advocate for the petitioner and also the submissions made by the learned Advocate appearing for respondent nos. 1 and 2, is of the opinion that the apprehension in the mind of the petitioner is 'unreasonable'. That being so, there is no question of granting any relief to the petitioner because transferring the matter from one Judge to another, when the Court is of the opinion that the apprehension of the petitioner is 'unreasonable' will send a wrong signal to the Judicial Officers and that will be misused by the persons like petitioner by browbeating Judges, who may not succumb to their pressure.