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ROLE OF A JUDGE IN CRIMINAL TRIAL

THE ROLE OF THE JUDGE IN A CRIMINAL TRIAL

STATE OF RAJASTHAN

Vs.

ANI @ HANIF AND OTHERS: RESPONDENTS

DATE OF JUDGMENT: 13/01/1997

BENCH: A.S. ANAND, K.T. THOMAS

[Also reported in 1997 AIR 1023, 1997(1)SCR 199, 1997(6)SCC 162, 1997(1)SCALE287 , 1997( 1 )JT 460 ]

ACT:

Allowing the appeal, this Court

HELD: 1.1. Section 165 of the Evidence Act, 1872 confers vast and

unrestricted powers on the trial court to put "any question he pleases, in

any form, at any time, of any witness, or of the parties, about any fact

relevant or irrelevant" in order to discover relevant facts. The said

section was framed by lavishly studding it with the word "any" which could

only have been inspired by the legislative intent to confer unbridled power

on the trial court to use the power whenever he deems it necessary to

elicit truth. Even if any such question crosses into irrelevance the same

would not transgress beyond the contours of powers of the court. This is

clear from the words "relevant or irrelevant" in Section 165. Neither of

the parties has any right to raise objection to any such question. [205-G-

H, 206-A]


1.2. Reticence may be good in many circumstances, but a judge remaining

mute during trial is not an ideal situation, A taciturn Judge may be the

model caricatured in public mind. But there is nothing wrong in his

becoming active or dynamic during trial so that criminal justice being the

end could be achieved. Criminal trial should not turn out to be a bout or

combat between two rival sides with the judge performing the role only of a

spectator or even an umpire to pronounce finally who won the race. A judge

is expected to actively participate in the trial, elicit necessary

materials from witnesses at the appropriate contest, which he feels

necessary for reaching the correct conclusion. There is nothing, which

inhibits his power to put questions to the witnesses, either during chief

examination or cross-examination or even during re-examination to elicit

truth. The corollary of it is that if a judge felt that a witness has

committed an error or a slip it is the duty of the judge to ascertain

whether it was so, for, to err is human and the chances of erring may

accelerate under stress of nervousness during cross-examination. Criminal

justice is not to be founded on erroneous answers spelled out by witnesses

during evidence collecting process. It is a useful exercise for trial judge

to remain active and alert so that errors can be minimised. [206-B-E]


Ram Chander v. State of Haryana, AIR (1981) SC 1036, relied on.


1.3. When the trial judge noticed that PW-3 was in a bit of confusion

during cross-examination he put a question to get the confusion clarified.

If the witness has corrected an error slipped out of his tongue there is no

justification terming his evidence as "not believable", particularly since

the High Court has found that presence of PW-3 at the scene of occurrence

during the relevant time is indisputable. In the instant case, there was

nothing wrong in the trial court interjecting during cross-examination of

PW-3 with a view to ascertain the correct position. [205-E, 207-A]


2.1, The discrepancy regarding the time of recording First Informa-tion

Statement, on the facts of this case, is not enough to castigate the

testimony of an important eyewitness, whose presence at the spot cannot in

any way be doubted. The maximum consequence, which such discrepancy may

visit on the facts of this case, is that the First Information Statement

cannot be used to corroborate the evidence of the maker of it. [207-C-D]


2.2. The evidence of the injured witness PW-18 cannot be rejected merely

because PW-3 did not name him in the FIR. The condition of the maker of the

First Information Statement should be borne in mind -whether he was in a

position to reproduce the vivid details of the occur-rence including making

reference to all the persons who would have witnessed the occurrence. [207-

G-H; 208-A]


2.3. The injured witness, PW-3, correctly identified all the six accused in

court as the assailants. But in the FIR filed by him only the names of four

accused were mentioned but not the names of the remaining two accused. The

Police did not involve PW-3 in the test identification parade. Hence, the

two accused were entitled to benefit of doubt and were rightly acquitted by

the High Court But the High Court erred in setting aside the conviction

recorded by the trial court against these four accused overlook-ing the

evidence of PW-3 and other important witnesses examined by the prosecution.

Accordingly, the conviction and sentence passed by the trial court against

these four accused is restored.

EXCERPTS FROM THE JUDGEMENT:

Shri Sushil Kumar, learned senior counsel criticised

the manner in which the trial Judge had put the question.

Counsel submitted that when the cross-examiner has

successfully elicited a pivotal answer from PW-3 it was

improper for the court to have interjected to upset the

trend.

We are unable to appreciate the above criticism. Section 165 of the Evidence Act confers vast and unrestricted powers on the trial court to put "any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant" in order to discover relevant facts. The said section was framed by lavishly studding it with the word "any" which could only have been inspired by the legislative intent to confer unbridled power on the trial court to use the power whenever he deems it necessary to elicit truth. Even if any such question crossed into irrelevancy the same would not transgress beyond the contours of powers of the court. This is clear from the words "relevant or irrelevant" in Section 165. Neither of the parties has any right to raise objection to any such question.

Reticence may be good in many circumstances, but a judge remaining mute during trial is not an ideal situation. A taciturn Judge may be the model caricatured in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. Criminal trial should not turn out to be a bout or combat between two rival sides with the judge performing the role only of a spectator or even an umpire to pronounce finally who won the race. A judge is expected to actively participate in the trial, elicit necessary materials from witnesses at the appropriates context which the feels necessary for reaching the correct conclusion. There is nothing which inhibits his power to put questions to the witnesses, either during chief examination or cross-examination or even during re-xamination to elicit truth. The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence collecting process. It is a useful exercise for trial judge to remain active and alert so that errors can be minimised. In this context it is apposite to quote the observations of Chinnappa Reddy, J. in Ram Chander vs. The State of Haryana (AIR 1981 SC 1036):

"The adversary system of trial being what is is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth."

We respectfully concur with the aforesaid observations.

We find no wrong in the trial court interjecting during

cross-examination of PW-3 with a view to ascertain the

correct position.”

Honble SC in Zahira Habibulla H. Sheikh & Anr v. State of Gujarath AIR 2004 SC 3114:2004 C. Cr .LR (SC) 524 observed:

“Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts.

Application of these principles involve a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing

sight of the public interest involved in the prosecution of persons who commit offences.

In 1846, in a judgment which Lord Chancellor Selborne would later describe as "one of the ablest judgments of one of the ablest judges who ever sat in this court". Vice-Chancellor Knight Bruce said:

"The discovery and vindication and establishment of truth are main purposes

certainly of the existence of Courts of Justice; still, for the obtaining of

these objects, which, however valuable and important, cannot be usefully

pursued without moderation, cannot be either usefully or creditably pursued

unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most

weighty objection to that mode of examination.. Truth, like all other good

things, may be loved unwisely - may be pursued too keenly - may cost too

much."

The Vice-Chancellor went on to refer to paying "too great a price... for truth". This is a formulation which has subsequently been frequently invoked, including by Sir Gerard Brennan. On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms: "The evidence has been obtained at a price which is unacceptable having regard to prevailing community standards."

Restraints on the processes for determining the truth are multi-faceted. They have emerged in numerous different ways, at different times and affect different areas of the conduct of legal proceedings. By the traditional common law method of induction there has emerged in our jurisprudence

the principle of a fair trial. Oliver Wendell Holmes described the process:

Hon'ble SC in the Judgement further observed:

The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all

necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into

record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the

prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the

prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.

The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e (i) giving a discretion to the Court to examine the

witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohan Lal v. Union of India (1991 Supp (1) SCC 271) this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the word such as, 'any Court' 'at any stage', or 'any enquiry or trial or other proceedings' 'any person' and 'any such person' clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case - 'essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.

It is not that in every case where the witness who had given evidence before Court wants to change his mind and is prepared to speak differently, that the Court concerned should readily accede to such request by lending its

assistance. If the witness who deposed one way earlier comes before the appellate Court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the Court can consider the genuineness of the

prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. It is not that the power is to be exercised in a routine manner, but being an exception to the ordinary rule of disposal of appeal on the basis of records received in exceptional cases or extraordinary situation the Court can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The Court can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on

merits of the material sought to be brought in.”

(Note: See also The State of West Bengal v. Ajoy Dutta & Another (2010)1 C Cr LR (Cal) 368 regarding the ROLE OF A JUDGE during the trial of a Criminal Case.)

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