DAMI Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition is under S.407 of the Cr.P.C. (for short 'the Code') by the accused in Sessions Case No. 24 of 1992 pending in the Third Additional District Court, Ernakulam for transfer of the said case to this court or to any other court. Petitioner avers in the affidavit to this petition as well as in the amended petition that the petitioner is charge sheeted for the offence punishable under S.20(b)(i) and 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'). The allegation is that the petitioner was found in possession of 100 grams of ganja and 10 ampules of bupernorphinc injunction tidigestic on 6-8-1991 at about 10 p.m. from the rear verandha of the G.C.D.A. Complex in Shanmugham Road, Ernakulam. According to the petitioner, the prosecution case is that the said articles were hidden in the waist portion of the dothi worn by him. It is alleged by the petitioner that, from the commencement of the trial, learned Sessions Judge was taking a partisan attitude. According to the petitioner after the cross examination and re-examination of the prosecution witnesses, the Judge used to put question to reinforce the prosecution case purporting to act under S.165 of the Evidence Act. It is contended by the petitioner that, when the Circle Inspector was cross examined, he admitted that he did not find any belt around the waist of i he petitioner and that the petitioner had summoned and examined the Superintendent of Sub Jail, Aluva and the Superintendent of Sub Jail, Ernakulam as DWs. 1 and 2 who stated that, the petitioner was wearing a belt and that, the belt was taken into custody by DW. 1. According to the petitioner, the nature of questions put by the learned Judge to the witnesses, particularly to Dws. 1 and 2 would show that the Judge was assuming the role of a prosecutor. The petitioner has extracted the questions by the court and their answers in pages 3 to 10 of the affidavit to the amended petition.

(2.) My learned Predecessor called for the remarks of the Sessions Judge. In the remarks of the learned Judge, it is stated that, the charge was under S.20(b)(i) and 21 of the Act. Learned Judge denies the allegation that questions were put to fill up the lacuna in the prosecution case and states that such questions were put only to ascertain the truth and also the admissibility of the evidence. It is asserted by the learned Judge that she did not act in a partisan manner and adds that "As the trial of the case is already concluded the transfer of the case will only embarass and delay the proceedings. There is no reason for apprehending any unfair deal for the accused too. Still, I am not keen that the case should be disposed of by me."

(3.) As per S.165 of the Evidence Act, a Judge is entitled to ask any question in any form, at any time, to any witness about any fact relevant or irrelevant. The freedom of the Judge to ask questions thus is clear from S.165 of the Evidence Act. If the Judge thinks that, the case has not been thoroughly explored, he is entitled to put as many questions as he likes. But he must not in doing so descend into the arena. Thus, caution is necessary to see that the Judge does not give an impression of assuming the role of a Prosecutor.