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1998 Supreme(Bom) 674
IN THE HIGH COURT OF BOMBAY
D.G. Deshpande, J.
Ahmed Khan Alikhan Deshmukh ..... Petitioner.
Versus
The State of Maharashtra another..... Respondents.
Criminal Application No. 2721 of 1996, decided on 11-11-1998.
Advocates appeared :
S.V. Marvadi, for the petitioner.
M.P. Galeria, A.P.P., for the State/respondent No. 1.
M.K. Patwardhan with H.V. Mehta N.M. Patwardhan, for respondent No. 2/C.B.I.
Headnote:Sections 3, 9 and 165-De novo trial-Re-examination of witness When can be allowed-Role of presiding Court-Witness being examined to prove tape recorded conversation-Court putting questions again and again at many points of tape conversation and often getting tape reversed-Assuming role of prosecution and defence lawyers Thereby coercing, confusing or frightening witness-Held, through Court can put any number of questions but the way Court acted in this case not proper-Prayer for de novo trial allowed.-It is true that under Section 165 of the Evidence Act ample powers have been given to be Court to have effective and proper control over the trial and Court can ask any question, in any form, at any time. This is an absolute power given to the Court. However, the power has to be used sparingly and only when the circumstances justify its use. From the manner in which the witness is examined by for Court it does not appear that it was necessary for the Court to put so many questions to the witnesses particularly when cross-examination was in progress.
Section 165-Examination of witnesses in evidence-Power of Court to put questions-Though Court having ample powers to ask any question in any form and at any time-Yet not an absolute power -Power to be used sparingly and not to put questions so as to jeopardise prosecution or defence of accused.-It is clear that even though the Court is not supposed to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence, and even though the Court is not supposed to be silent spectator to the examination-in-chief or cross-examination, the Court should not assume the role of prosecution or defence lawyer and put the questions to the witnesses to jeopardise the prosecution case or the defence of the accused.
It is true that under Section 165 of the Evidence Act ample powers have been given to the Court to have effect the proper control over the trial and Court and ask any question, in any form, at any time. This is an absolute power given to the Court. However, the power has to be used sparingly and only when the circumstances justify its use. From the manner in which the witness is examined by the Court it does not appear that it was necessary for the Court to put so many questions to the witnesses particularly when cross-examination was in progress.
Section 165-Effective control of Court over trial-Court not to assume the role of prosecutor or defence lawyer-To have effective and proper control absolute power is given to Court-Such power to be used sparingly and only when circumstances justify its use.-During the course of Sessions Trial, the Special Judge, it was complained, repeatedly intervened in the matter while witness of the prosecution was being examined. It was contended that the Special Judge repeatedly intervened in the matter and adopted a role of prosecutor and in support of his contention he drew attention to the questions put to the witness by the Court. The defence counsel contended that the evidence of the prosecution, particularly in respect of tape recorded conversation had not been properly taken on record in the sequence, that, when the tape was played in the Court, conversation that was recorded should have been taker of verbatim as coming from the tape and since this had not been done, the prosecution also suffered in its case. It was prayed that while considering the prayer of the counselor the accused for deleting the portion of the evidence of the witness which came on record pursuant to the course of questions put to the witness by the Court, a de novo trial should be ordered so that the prosecution can lead its evidence fully, completely and without prejudice to the prosecution. Transfer application as filed was not pressed as the Special Judge from whom transfer was requested was not at the material time dealing with the case. Prayer, however, was made for the de novo trial.
Held, under Section 165 of the Evidence Act ample powers have been given to the Court to have effective and proper control over the trial and Court can ask any question, in any form at any time. This is an absolute power given to the Court. However, the power has to be used sparingly and only when the circumstances justify its use. From the manner in which the witness was examined by the Court it die not appear that it was necessary for the Court to put so many questions to the witnesses particularly when cross-examination was in progress. Since strong grievance was made out by both prosecution as well as accused, prayer for deleting of those questions which had been recorded as questions to Court and prayer of the prosecution for ordering de now trial allowed. 1981 Cri LJ 609 : AIR 1981 SC 1036-Relied on.
2. The Counsel for the petitioner contended that however, by now the assignment of the Judges have changed and Smt. R.S. Dalvi is no longer dealing with the present case, and therefore, he did not press for his prayer for transfer of the case.
3. He, however, contended that while witness of the prosecution was being examined, Smt. R.S. Dalvi, the Special Judge repeatedly intervened in the matter and adopted a role of prosecutor and in support of his contention he drew my attention to the questions put to the witness P.W. No. 1 by the Court (Record page 18 of the present petition). On the other hand Mr. Patwardhan Counsel for the C.B.I. also contended that the evidence of the prosecution, particularly in respect of tape recorder conversation has not been properly taken on record in the sequence, that, when the tape played in the Court, conversation that was recorded should have been taken out verbatim as is coming from the tape and since this has not been done, the prosecution also suffered in its case. He, therefore, prayed that while considering the prayer of the Counsel of the accused for deleting the portion of the evidence of P.W. No. 1, which came on record pursuant to the course of questions put to the witness by the Court, a de-novo trial should be ordered so that the prosecution can lead its evidence fully, completely and without prejudice to the prosecution.
4. Both the Counsel relied upon a judgment of the Supreme Court reported in 1981 Crim. L.J. 609 (Ram Chander v. The State of Haryana)1, wherein the Supreme Court has held that guidelines to be followed by the trial courts while conducting the trial. My attention was drawn to paragraph Nos. 2 and 3 of the said judgment and also to paragraph No. 8 alongwith other facts of the case.
5. I have carefully gone through the evidence of P.W. No. 1 recorded in this case by the Special Judge. It appears that through this witness the tape recorder conversation was tried to be proved by the prosecution as per the statement of this witness this conversation was recorded on three cassettes and this recording was done on 9th March 1987, 12th March 1987 and 18th March 1987 respectively. Further it appears from the evidence that three cassettes kept in three separate packets. They were produced in the Court and removed from the packets and they were played in the Court one after the other. However, it appears that every sentence in the conversation in all the three cassettes is not recorded in the sequence in which it has come on the tape. In fact, the Court should have played the cassettes fully in the Court, deployed a couple of stenographers to take verbatim reproduction of the conversation on record, cassettewise and sidewise, and thereafter the prosecution should have been allowed to put the question to the witness regarding identification of voice and other relevant questions. However it appears that after every question the witness was asked to identify the voice and again question was put to the witness as to whether there is any specific portion in the cassette in which specific demand has been made by the accused latter. Since the witness replied in negative the Court observed that there was no necessity to hear the cassettes further.
6. Certainly this is not a correct approach adopted by the Additional Sessions Judge. Whether the tape recorder conversation contains anything of importance or not (either to the prosecution or to the defence) should not have been decided by the Court on the basis of opinion given by witness. All the
