Dr. Kapil Kakkar says differing procedural treatment in two contemporaneous criminal contempt cases creates a reasonable apprehension regarding judicial fairness; “Justice must not only be done but must also be seen to be done.”
New Delhi: Dr. Kapil Kakkar has filed a detailed recusal application before the Delhi High Court seeking that the pending criminal contempt proceedings bearing contempt case crl no. 9 of 2026 against him be transferred from the courts of Justice Naveen Chawla and Justice Ravinder Dudeja to another Bench. The application contends that certain procedural developments have created a reasonable apprehension in the mind of a fair-minded and informed observer that he has not received the same degree of procedural fairness that was extended in another contemporaneous criminal contempt case before the same Bench involving former Delhi Chief Minister Arvind Kejriwal and others.
Different Procedural Treatment Compared to Arvind Kejriwal’s Contempt Case
The principal grievance raised in the application concerns what it describes as a material difference in procedural treatment between the present contempt proceedings and the criminal contempt case against Arvind Kejriwal and others.
According to the application:
- In the Arvind Kejriwal contempt case, approximately four weeks were granted for filing a reply affidavit after service of notice.
- In contrast, Kapil Kakkar was granted only two weeks to file his reply.
The application further points out that no direction requiring the personal appearance of Arvind Kejriwal was issued, whereas Dr. Kapil Kakkar was directed to remain personally present, despite the fact that his discharge application, challenging the very maintainability of the contempt proceedings, remains pending.
Personal Appearance Challenged
The application relies upon the Supreme Court judgment in Agyapaul Singh v. State Bank of India, (2017) 5 SCC 235, contending that where the maintainability of contempt proceedings is questioned at the threshold, the alleged contemnor’s personal appearance should not be insisted upon until the Court has first considered the preliminary objections, decided that the proceedings should continue, and recorded reasons for requiring such appearance.
According to the application, Arvind Kejriwal had not even raised any preliminary objection or discharge plea challenging maintainability, yet no order directing his personal appearance was passed. Conversely, Dr. Kakkar, despite having filed a discharge application questioning the maintainability of the proceedings at the threshold, was directed to remain personally present.
The application submits that this differential procedural treatment has contributed to a reasonable apprehension regarding judicial fairness.
“More Serious Allegations, Yet More Time”
The application further argues that the alleged disparity assumes greater significance because, according to the applicant, the contempt proceedings against Arvind Kejriwal involve allegations of a substantially more serious nature. Nevertheless, that case was allegedly afforded a longer procedural schedule and greater opportunity to respond.
It is contended that adopting materially different procedural timelines in similarly situated criminal contempt proceedings, without recording any judicial reasons, may give rise to legitimate concerns regarding equality before law and procedural fairness under Articles 14 and 21 of the Constitution.
Discharge Application Should Be Decided First
Dr. Kakkar has also argued that his pending discharge application raises threshold questions regarding the very maintainability of the contempt proceedings. Therefore, directing him to file a detailed reply on the merits before deciding the discharge application is, according to the application, legally premature.
The application states that if the discharge application succeeds, the proceedings would terminate. If it is rejected, the applicant would have a statutory right of appeal under Section 19 of the Contempt of Courts Act. Consequently, it contends that the discharge application ought to be decided before requiring a reply on merits.
Alleged Non-Compliance with Mandatory Procedure
The application also alleges non-compliance with several mandatory safeguards prescribed under the Contempt of Courts (Delhi High Court) Rules, 2025, including:
- failure to frame formal charges;
- non-service of the prescribed statutory notice;
- insistence upon filing a reply affidavit before the statutory stage had arisen; and
- other alleged departures from the prescribed procedure governing criminal contempt proceedings.
According to the application, since criminal contempt proceedings are quasi-criminal in nature, strict compliance with these procedural safeguards is mandatory.
Transfer Sought to Preserve Public Confidence
The application repeatedly emphasizes that it is not founded upon allegations of actual judicial bias, but solely upon the doctrine of reasonable apprehension of bias. It argues that where a fair-minded observer may reasonably perceive unequal procedural treatment in similarly placed matters, recusal serves to preserve public confidence in the justice delivery system.
Accordingly, Dr. Kapil Kakkar has prayed that, in the interest of maintaining public confidence in the impartial administration of justice, the criminal contempt proceedings be transferred to another Bench for further hearing.
Supreme Courts settled law that even if there is no actual bias but appearance of bias is sufficient for transfer of case
The application is founded upon the settled constitutional principle that actual bias need not be established to justify recusal or transfer of a case. It expressly clarifies that it does not attribute any actual bias, mala fides, prejudice, or lack of integrity to either Justice Naveen Chawla or Justice Ravinder Dudeja. However, it contends that the differential procedural treatment accorded in the present contempt proceedings, as compared to another contemporaneous criminal contempt case, has given rise to a reasonable apprehension of bias in the mind of a fair-minded and informed observer. According to the application, such an appearance of bias, even in the absence of actual bias, is by itself sufficient to warrant recusal and transfer of the matter to another Bench in order to preserve public confidence in the administration of justice.
In support of this proposition, the application relies upon the law laid down by the Supreme Court in Krishnadatt Awasthy v. State of M.P., (2025) 7 SCC 545; State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770; and National Human Rights Commission v. State of Gujarat, (2009) 6 SCC 767. The application invokes the well-settled constitutional principle that “justice must not only be done, but must also be seen to be done.” It submits that where surrounding circumstances create a reasonable apprehension of bias in the mind of a fair-minded and informed observer, recusal may be warranted even without proof of actual bias, so as to uphold the credibility, impartiality, and public confidence in the justice delivery system.