TaxTMI 
TaxTMI 
2015 (8) TMI 1449
X X X X Extracts X X X X
X X X X Extracts X X X X
....ition leading to a decision moving in one direction, sans impartiality. Thus bias strikes at the very basis of a decision, which is supposed to be fair. 4. As bias emanates from the mind of a person, proof of it is at times very difficult. Therefore, a litigant has been given the lesser burden of establishing before the Court that there exists a real likelihood of bias or reasonable suspicion of it. The test is not existence of the bias as an authority may act in good faith, but such an action is liable to be questioned on the ground of real likelihood of bias or reasonable suspicion of it. This is for the reason that a mind may honestly think and act keeping fairness in mind, but such a decision which flows from it might lead to an element of bias unconsciously. 5. Bias is synonymous with prejudice. Robert Ingersoll defined prejudice in the following manner: Prejudice is the spider of the mind. It is the womb of injustice. When an apparent bias transforms itself into a womb of injustice then, it has to be struck down by the Courts. 6. Bias can be divided into three parts. They are: (i) Pecuniary Bias (ii) Personal Bias and (iii) Officia....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a relevant inquiry especially when the same cannot be established with ease. Thus a reasonable apprehension of bias and real likelihood of bias are surrogates for bias. This is also for the reason that apart from rule of law and fairness, there can be an unconscious bias exists though not intended. 9. Pre-determination and pre-disposition are two facets of bias. An alleged predetermination or predisposition has to be highlighted from an apparent bias. An apparent bias has to be found out from the point of view of either a reasonable mind or a fair minded informed observer as discussed above. Thus, the Court has to sit in the armed chair as a fair minded man who otherwise could be called a reasonable man and determine whether there exists a real bias. Therefore, a Court is required to transform itself to such a man and then decide. This is the common law principle, which has been evolved by the Courts. There is very little difference between a real likelihood and a reasonable suspicion of bias in practice. It is ultimately for the Courts to decide that there exists a bias or not. After all, the test of likelihood or reasonable suspicion is a mere instrument in identifying an elem....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hich it could have readily ascertained and easily verified by making reasonable inquiries. Regarding the test of real likelihood of bias, it was none the less held what is important is real danger of bias on the part of the person against whom such apprehension is expressed. It was also held that human probabilities and ordinary course of human conduct are the parameters to be taken in mind while indulging in such test. 13. In State of Gujarat v. R.A. Mehta, (2013) 1 MLJ 362 (SC), while dealing with the doctrine of bias, the Apex Court held that reasonable suspicion that there is likelihood of bias affecting decision would be sufficient to invoke the doctrine of bias. Therefore, in effect the test of likelihood of bias or reasonable apprehension of bias are interchangeable in nature and consequently, the parameters required for such a test will also be construed to be the same. Fairness and Rule of Law: 14. Instrumentality of a State and its officials must conform to the Rule of Law leading to fairness in action. It has been well established that fairness is a facet of Article 21 of the Constitution of India. Such a fairness in action is also mandatorily to be followed in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial." 68.Similarly in TASHI DELEK GAMING SOLUTIONS LTD. v. STATE OF KARNATAKA [(2006) 1 SCC 442), the Hon'ble Apex Court has observed as follows: "37. If the agent was to be prosecuted for violation of the term of the notification, he could challenge the validity thereof. A fortiori, a quia timet application would also be maintainable. A person must be held to have access to justice if his right in any manner whether to carry on business is infringed or there is a threat to his liberty. Access to justice is a human right. 38. In Dwarka Prasad Agarwal v. B.D. Agarwal [(2003) 6 SCC 230] this Court opined: (SCC pp.245-46, para 38) "A party cannot be m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....BI, (2014) 8 Supreme Court Cases 682, the Apex Court has ruled that any investigation into crime should be fair and should not be tainted. It has been further held that Rule of Law is a facet of equality under Article 14 of the Constitution of India. 17. In Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263, the Supreme Court has held that the Court is bound to record any deliberate dereliction of duty, designed defective investigation, intentional acts of omission and commission. 18. Therefore, fairness in an action leading to upholding rule of law is a sine qua non of a criminal investigation. Defective Investigation: 19. Law is quite settled that a defective investigation per se cannot be a ground to declare the innocence of an accused. After all, the role of the Court is to find the truth as every trial is journey towards it. Thus, merely because an investigation is defective and that too on a technical ground, a person charged with an offence cannot be acquitted as a matter of course (See Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263, State of Gujarat v. R.A. Mehta, (2013) 1 MLJ 362 (SC) and Hem Raj v. State of Haryana, (2014) 2 Supreme Court Cases 395. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ect is to set the Criminal Law into motion. It only enables an officer in charge to commence the investigation qua the crime reported to him. Section 154 of the code, prescribes the mode of recording of information either oral or by written by the officer in charge. Under Section 156 Cr.P.C. such an officer is empowered to investigate and cognates the offence. A receipt of an information of offence is not a condition precedent for investigation. Section 157 of the Code deals with prescription for an investigation which can be initiated either by the information or otherwise. Therefore an in-charge police officer can kick start his investigation on information or otherwise. (See State of U.P. v. Bhagwant Kishore Joshi, AIR 1964 SC 221) Therefore, there is no bar for such an officer to lodge, register and investigate the case. 25. However, the question for consideration is as to whether there would occur a real likelihood or reasonable suspicion of it when an officer, who registers the case, proceed to investigate the case. In this connection, it has to be noted that Section 154 Cr.P.C. deals with only an informant. In a case registered under Section 151 of the Cr.P.C. , it is onl....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., though he can register a case, he cannot investigate the same further. In other words, an eyewitness to the occurrence cannot don the role of investigator too. He cannot be allowed to wear two hats at the same time. The concept of official and personal bias would come into play, though an officer is expected to act in a fair manner. There may not be any actual bias, but one of reasonable suspicion or likelihood of bias. However, when an officer receives information either orally or otherwise, he is merely registering the cognizable offence, thereafter proceeds to investigate. The recording by the officer is his official duty as that of the investigation. There is no twin contra roles involved. Similar is the case of an officer registering an F.I.R. suo motu based upon a source information. Such registration qua an offence is on a reasonable suspicion. Cases of such a nature would not attract the concept of bias. After all in all official action fairness is presumed. Precedents: 27. Now, let us analyse the decision rendered by the Apex Court in this regard. In Bhagwan Singh v. State of Rajasthan, (1976) 1 Supreme Court Cases 15, the allegation was an offer of bribe made. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e investigation would necessarily be unfair or biased. In the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to investigate. The formality of preparing the FIR in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor. If the reason which weighed with the High Court could be a ground to quash the prosecution, the powers of investigation conferred on the police officers would be unduly hampered for no good reason. What is expected to be done by the police officers in the normal course of discharge of their official duties will then be vulnerable to attack. 28. Therefore, the said decision clearly lays down the position of law between an eyewitness becoming an informer, and an officer receiving information, registering the case and then proceeding further. 29. In S.Jeevanantham v. State, (2004) 5 Supreme Court Cases 230, again the Apex Court has ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ector of Police, Kottar Police Station. Subsequently, further action was dropped. Thereafter, a complaint has been filed by the respondent in Crime No.648 of 2007 for the alleged offences under Sections 147, 145(b) and 174 (a) of Railways Act, 1989. The said complaint has been taken cognizance of. Challenging the same, the present petition has been filed. 34. Section 145 of Railways Act, 1989 deals with nuisance, for which punishment of a fine of Rs. 100/- has been prescribed. Section 147 deals with trespass, which prescribes a punishment of imprisonment for a term which may extend to six months or fine of Rs. 1,000/- or both has been prescribed. As per the proviso, there shall not be any punishment less than Rs. 500/- except for special and adequate reasons. Similarly, Section 174 deals with the obstructing the running of a train for the said offence. For the said offence a maximum punishment of 2 years has been prescribed. Under Section 179 of the Railways Act, 1989, for the offences as mentioned above, an authorised officer can arrest a person concerned even without warrant. He may also make an inquiry into the commission of offence mentioned under Section 179(2). Thereafter,....