The main legal point established is the importance of a judge's role in asking questions, the need for justice to be seen to be done, and the reasonable apprehension of the accused in ensuring a fair trial.

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 Ss.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 tidigeslic on 6-8-1991 at about 10p.m. from the rearvcrandha of tie G.C.D.A. Complex in Shanmughara 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 the 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 D\ .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 2.1 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.

4. In the decision m. Yuill v. Yuill (1945 All. England Law Reports 183) at page 189 it is stated: "A Judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned