STATE OF KARNATAKA Vs. RAMACHANDRA BHIMRAO BHAMANE

JUDGEMENT

(1.) AN interesting position in law has arisen in this case which we shall very briefly summarise. The-accused is alleged to have assaulted the complainant and caused injuries of some seriousness to him. He was tried by the learned jmfc, Sakaleshpur in Cri. Case No. 56/1997', found guilty and sentenced to undergo SI for 3 months and to pay a fine of Rs. 300/-for the offence under S. 326,1. P. C. and S. I. for one month and to pay fine of Rs. 100/-for the offence under Section 504, I. P. C. The accused filed an appeal against this order and strangely enough, a very unusual point was raised before the appeal court which was that the Government had not appointed a Prosecutor in the trial Court and since there was no Prosecutor the learned magistrate himself put the questions to the witnesses, recorded their statements and completed the case. Though this was a technical objection, the argument was that the learned Judge has effectively taken over the role of the Public Prosecutor in so far as he has conducted the examination-in-chief and that consequently, the Court has acted both as a Judge and as a Prosecutor. The contention was that effectively where the Presiding Officer discharges the functions of a prosecutor that it would vitiate the trial and that consequently, the conviction should be set aside. The appeal Court upheld this contention and set aside the conviction and sentences. The State has filed an appeal against the order of acquittal.

(2.) WE have heard the learned Counsel on both sides on the last date of hearing. The learned SPP submitted that the prosecution evidence is conclusive and that but for the technicality, that the conviction could never have been set aside. His initial submission is that since there was no Prosecutor and in order to avoid delaying the case any further the learned Magistrate has virtually taken down the evidence which is perfectly in order and that it is wrong to say that the learned Magistrate performed the functions of the Prosecutor. It is also contended that if this Court, as a matter of propriety, were to uphold the appellate order then there is no option except to order a retrial and that this should be done. At that stage we asked the respondent's" learned advocate to keep his client present because we desired to ascertain his status and other allied issues in order to decide whether this is a case in which a retrial should be ordered.

(3.) WE are unable to accept the submissions canvassed by the learned Addl. SPP who tried to defend the order of the trial court. There are well defined principles with regard to the conduct of criminal cases wherein the case for the prosecution is required to be presented by the Public Prosecutor and that the accused is defended by the Counsel for the defence. It is the function of the Presiding Officer to hear the case impartially and it is a well defined principle of law that if at any stage the Presiding Officer does any act which indicates that some bias favouritism or prejudice is shown towards one of the several parties, then the decision would be vitiated. This is a well defined principle of procedure based on well accepted cannons of ethics and it is really the foundation for the confidence that is required to be reposed in the Courts. To say that we are not only shocked but distressed, would be an understatement because it is not a question of evidence being recorded but of the fact that the Presiding Officer virtually took over the role of the Prosecutor, which is a total breach of the cannons that we have indicated earlier and consequently, the appeal Court was perfectly justified in having set aside the conviction on this ground.