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.)