RAM CHANDER Vs. STATE OF HARYANA

JUDGEMENT

(1.) What is the true role of a judge trying a criminal case Is he to assume the role of a referee in a football match or an umpire in a cricket match, occasionally answering, as Pollock and Maitland [Pollock and Maitland:The history of English law] point out, the question 'How is that' or, is he to, in the words of Lord Denning 'drop the mantle of a judge and assume the role of an advocate' [Jones v. National Coal Board (1957) 2 All ER 155.], Is he to be a spectator or a participant at the trial Is passivity or activity to mark his attitude If he desires to question any of the witnesses, how far can he go Can he put on the gloves and 'have a go' at the witness who he suspects is lying or is he to be soft and suave These are some of the questions which we are compelled to ask ourselves in this appeal on account of the manner in which the judge who tried the case put questions to some of the witnesses.

(2.) The adversary system of trial being what it 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. As one of us had occasion to say in the past:

(3.) With such wide powers the Court must actively participate in the trial, to elicit the truth and to protect the weak and the innocent. It must, of course, not assume the role of a prosecutor in putting questions. The functions of the counsel, particularly those of the Public Prosecutor, are not to be usurped by the judge, by descending into the arena as it were. Any questions put by the judge must be so as not to frighten, coerce, confuse or intimidate the witnesses. The danger inherent in a judge adopting a much too stern an attitude towards witnesses has been explained by Lord Justice Birkett: