NAVARITI RAJARAM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Petitioners are some of the accused who have been charged for commission of an offence under sections 395, 147, 149, 323, 336, 337 and 427 of the Indian Penal Code along with some other ten accused. During tbe pendency of the trial, when evidence was being recorded, the present Petitioners were not satisfied with the mode of recording evidence and they have made certain allegations againt the learned Additional Sessions Judge, before whom case against them is pending, saying that they will not have a fair trial in the said Court. Three grounds have been mentioned in the applitation to support their contention. These grounds are mentioned in paragraph 5 of the application. It is stated that the P. S. I. concerned in this case is standing at the North side door of the Court room and is instructing and making signs to the witnesses to identify a particular accused. Second ground is that an application was made through the Advocate that some of the accused wanted that they should be allowed to sit as per their choice before the witness comes to depose. It is stated that the said request was rejected by the learned Additional Sessions Judge. The third ground -which is made in paragraph 8 is that witnesses, who were unable to reply at the first instance in respect of the identification cf the accused, were directed repeatedly to see whether they could remember and refresh their memory in identifying the accused or not. It is specifically alleged in the application that the lower Court made querries whether the witness could identify or not and the witness gets frightened at that. A grievance is made that what the witness states is not properly recorded, which have caused apprehension in the minds of the Petitioners that they will not have a fair trial in Sessions Case No. 27 of 1982. This case is pending before the learned Additional Sessions Judge, Aurangabad.

(2.) This application was made by some of the accused as stated above on 24-11-1982 for transfer of the case. At the initial stage, when the application was made by the learned Advocate for the Petitioners, I did not think it necessary to issue process immediately, but wanted to satisfy myself and therefore, called for the report of the learned Additional Sessions Judge, which is received in this case. I have also, as a part of concession to the learned Advocate for the Petitioners and in fairness, showed this report to the learned Advocate for the Petitioners. The learned Additional Sessions Judge has pointed out in the report that the allegations made in the application are totally false and based on misconception of law and procedure.

(3.) In an adversary system of trial, it is impossible to see that the learned Additional Sessions Judge is only a recording machine. He is bound to participate in a trial to such an extent that there is no coercion, frightening or any other pressure. It is not expected that the learned Additional Sessions Judge is to sit and witness the trial without giving any indication as to how the trial should proceed. Recording of evidence is an important function of the trial Judge and in this recording of evidence, the learned Sessions Judges and trial Judges are entitled to regulate and prepare the judicial record according to law. In preparation of this record, they are supposed to instruct or guide the parties and in doing so, they are not only doing their duty, but, in my opinion, they are under an obligation to elicit sufficient information to ascertain the truth. This can be said without referring to any authority. However, ] may refer to a decision of the Supreme Court reported in Ram Candra v. The State of Haryana, 1981 Cri LJ 609, wherein the Supreme Court has said that the Sessions Judge or the trial Judge, whosoever he may be, must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel. Following the ratio of this judgment, I do not find any substance in this application made by the Petitioners accused. The Petitioners are involved in an offence such as dacoity, rioting and, therefore, it is imposesible to find any bona fide in this application.