P SATHIADAS Vs. STATE OF KERALA

JUDGEMENT

(1.) This revision is directed against an order passed by the Additional Chief Judicial Magistrate (Special Court), Ernakulam in Crl. M. P. No. 117/83 in C. C. 5/83. The case is one of those cases popularly called "mark list cases". The first accused filed a petition praying that a direction may be issued that no police officers who had anything to do with the investigation of the case should remain in the court hall when witnesses are examined in the case. The learned Magistrate dismissed the petition and this order is now challenged.

(2.) It is now submitted that the evidence of all the non official witnesses has already been recorded and only some official witnesses remain to be examined. Therefore, the revision petition has become infructuous.

(3.) However a word of caution to all concerned would not be out of place in the context. The court trying any case has a duty to ensure that the prosecution is enabled to adduce all relevant and necessary evidence and to ensure fair trial to the accused. If the Prosecutor, in the course of conduct of the trial, requires the assistance of any police officer, normally, there may not be any difficulty for the police officer to remain in court and watch the proceedings. One may even say that it would be appropriate and even beneficial if superior police officers attend court and watch the proceedings. That would certainly help them in guiding investigation of criminal cases. The normal practice of excluding the presence of witnesses from court when other witnesses are being examined need not be rigidly applied in the case of the investigating police officer, though the criminal court has always the power to direct that a witness who is to be examined in the case should not be in court when the evidence of other witnesses are being recorded till he himself is examined. (See Kasi Iyer v. State of Kerala, 1966 KLT 452 ). At the same time, where the presence of a "witness or other person is objected to on behalf of the accused, the court has to examine the reasons in support of the objection and take an appropriate decision. It may perhaps be that the presence of a police officer is likely to create fear in the mind of witnesses; sometimes, it may even be that the very presence of a particular officer may have an intimidating effect on witnesses. In an extreme case, a frivolous objection may be raised merely to deprive the prosecution of the assistance of the instructing officer or to deprive police or other officer of the benefit which may be derived by watching the trial of the case. These are matters for the criminal court to take into account in deciding the objection raised on behalf of the accused with regard to the presence of a particular witness or person. Though prosecution and the defence may seemingly be at cross purposes, it has to be remembered that both owe a duty to the high cause of justice and it is for the court to ensure that the cause of justice is upheld.