STATE Vs. STALIN

JUDGEMENT

(1.) IN the above Original Petitions, the State seeks expunging of remarks made by the learned Principal Sessions Judge, Chennai in crl. M. P. Nos. 7974 and 8057, 8114, 8115, 8179, 8193 & 8194 of 2001. The learned Sessions Judge while raising orders on bail applications filed by the different accused in Cr. No. 3/2001 in Crl. M. P. No. 7974/2001 against which crl. O. P. No. 12798/ 2001 has been filed, had recorded statements of the complainant, Mr. J. T. Acharyalu, Commissioner, Corporation of Chennai and investigating Officer, Mr. N. Padmanabhan, Deputy Superintendent of Police, c. B. C. I. D. , Chennai. Moreover, in Crl. M. P. Nos. 8057, 8114, 8115, 8170, 8193 and 8194 of 2001 against which Crl. O. P. Nos. 12797, 13177, 13178, 13179, 13180 and 13181 of 2001 have been filed, the learned Sessions Judge based his bail order on the statements recorded from the above said two persons. Therefore, the State seeks to expunge the entire statements recorded from the above said persons as they are illegal. The State also seeks to expunge certain remarks made by the learned Sessions Judge in both the orders.

(2.) THE learned Sessions Judge was asked to offer his remarks as to the authority or provision of law under which the statements of those persons were recorded whether those statements were recorded by putting questions and eliciting answers, whether they have been examined on oath, what necessitated the examination of those persons while disposing of a bail application and what is the justification for certain remarks made in paragraphs 9 & 10 of his order dated 3. 7. 2001 and whether those statements of witnesses were considered for releasing the petitioners on bail in the other set of bail applications. THE learned Sessions Judge has also offered his remarks.

(3.) THE learned counsel Mr. Venkataraman further submitted that there is no prohibition in law to examine a witness during bail proceedings. THEre is no enabling provision also for the same. According to him, the complainant and the investigating officer were examined to find out whether any material is available to prove pecuniary advantage to any of the accused since it is a case under the Prevention of Corruption Act. It is for the prosecution to prove that enough materials are available to show that the accused received pecuniary advantage and once the prosecution has not let in any kind of evidence, why should these witnesses be examined " THE reasoning of the learned counsel is not appealing. His further argument was that the learned sessions Judge has power to put questions to any one and therefore he can also record their statements. It is unfortunate that the role of the judge is not to collect evidence either on behalf of the prosecution or on behalf of the accused. Once the prosecution has failed to produce evidence, the benefit automatically accrues to the accused. THE moment the Public Prosecutor is heard and the C. D. is perused, if the Judge feels that there is no case against the accused, he can very well release the accused on bail. That power of the Court cannot be questioned at all. But unfortunately in this case, the learned sessions Judge went to the extent of calling the complainant, examining the complainant and the investigating officer and recorded their statements. This according to me, is unwarranted and is likely to harm or prejudice the prosecution. Investigation in this case was admittedly in the threshold, since the first information was lodged on 30. 6. 2001 and the earlier bail application came up for consideration on 3rd July 2001.