Bodiuzzaman Khan :
This refers the article published in 67 DLR (2015) Journal 20 written by Mr Amit Kumar Dey. Metropolitan Magistrate. Dhaka. The author of the article observed that, “In practice it is seen that when the witnesses are examined the courts rarely ask any questions to the witnesses, fearing that their neutrality may be doubted. Over the years taking advantage of such lacuna, large number of criminals are escaping convictions. Judicial activism can prevent such lacuna and establish human rights”. The author referred to the case of Ramchander vs State of Haryana (1981) 3 SCC 191 in which Justice Chinappa Reddy while giving opinion of the court asked himself “what is the (true role of a judge trying a criminal case? Is he to assume the role of a referee in a football match or an umpire in a cricket match? Occasionally answering as Pollock and Maitland point out the question “How is that”, or is he to in the words of Lord Denning “drop the mantle of a judge and assume the role of an advocate”.
The above decision quoted Lord Justice Birkett the in following lines:-
People accustomed to the procedure of the court are likely to be overawed or frightened, or confused, or distressed when under the ordeal of prolonged questioning from the presiding judge. Moreover, when the questioning takes on a sarcastic or ironic tone as it is apt to do or when it takes on a hostile note as is sometimes almost inevitable, the danger is not only that witnesses will be unable to present the evidence as they may wish, but the parties may begin to think, quite wrongly as it. may be, that the judge is not holding the scales of justice quite eventually.
The decision quoted Lord Justice Denning:-
The judge’s part in all this is to hearken to the evidence, only himself asking questions to witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies.
If he goes beyond this, he drops the mantle of the judge and assumes the role of an advocate; and the change does not become him well.
The decision further goes stating:-
We may go further than Lord Denning and say that it is the duty of a judge to discover the truth and for that purpose he may “ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant” (Section 165, Evidence Act). But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses, He must take the prosecution and the defence with him. The court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, ‘like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and (sic the) old’. In a case of Sivasubbu Nador Justice Bashir Ahmed Sayed of Madras High Court (AIR 1951 Mad. 772) said and quoted follow:-
More than 70 years ago in Noor Bux Kazi vs The Empress. 6 Cal. 279 at p. 283 : (7 C.L.B. 385), Sir Richard Garth C.J. & Tottenham J. deprecated the practice of Judges and Mags, questioning witnesses as if they were cross-examining counsel (sic) in the following words:
It is not the province of the Ct. to examine the witnesses, unless the pleaders on either side have omitted to put some material question or questions; and the Ct. should, as a general rule, leave the witnesses to the pleaders to be dealt with as laid down in section 138 of the Act..
The Judge’s .power to put questions under section 165 is certainly not intended to be used in the manner which’ we have had occasion to notice in the present case.” The decision of Calcutta High Court in Sunil Chandra Roy and another vs The State, Chief Justice Chakravarty and Justice Sarkar held (AIR 1954 Cal. 305) (Para-32):
But while theoretically the powers of the Judges are limitless and unfettered, certain principles have come to be recognised which he must follow as to the manner in which he exercises the power. It needs hardly be pointed out that he must not take side; but he must not also “descend into the arena” and forsake the judicial calm for the zeal of a combatant.
If he does so and questions witnesses in the spirit of beating them down or encouraging them to give an answer, his action may have an intimidating or inflatory effect upon them and their evidence may not be the evidence they would have given, if not so intimidated or encouraged. I do not think that the consideration that the Judge may, by indulging in a general examination of witnesses, disable himself to take a detached view of their demeanor, has much force in the case of a jury trial, because the ultimate judge of their credibility are the jurors, who are left free to watch them.
But the demeanour of the witnesses may itself be affected by the authority of the Judge, if he exercises it excessively in questioning them. The author of the said article convinced himself that a number of criminals are escaping for the non-application of the Section 165 of the Evidence Act. The Judges are not to use and apply the power under Section 165 intending to fill up the lacuna of the prosecution rather for the purpose of a reply of a confusion left behind by either party. The trying judge, if uses this -provision to fill up the lacuna of the prosecution, then the judge will descend into the legal arena.
This refers the article published in 67 DLR (2015) Journal 20 written by Mr Amit Kumar Dey. Metropolitan Magistrate. Dhaka. The author of the article observed that, “In practice it is seen that when the witnesses are examined the courts rarely ask any questions to the witnesses, fearing that their neutrality may be doubted. Over the years taking advantage of such lacuna, large number of criminals are escaping convictions. Judicial activism can prevent such lacuna and establish human rights”. The author referred to the case of Ramchander vs State of Haryana (1981) 3 SCC 191 in which Justice Chinappa Reddy while giving opinion of the court asked himself “what is the (true role of a judge trying a criminal case? Is he to assume the role of a referee in a football match or an umpire in a cricket match? Occasionally answering as Pollock and Maitland point out the question “How is that”, or is he to in the words of Lord Denning “drop the mantle of a judge and assume the role of an advocate”.
The above decision quoted Lord Justice Birkett the in following lines:-
People accustomed to the procedure of the court are likely to be overawed or frightened, or confused, or distressed when under the ordeal of prolonged questioning from the presiding judge. Moreover, when the questioning takes on a sarcastic or ironic tone as it is apt to do or when it takes on a hostile note as is sometimes almost inevitable, the danger is not only that witnesses will be unable to present the evidence as they may wish, but the parties may begin to think, quite wrongly as it. may be, that the judge is not holding the scales of justice quite eventually.
The decision quoted Lord Justice Denning:-
The judge’s part in all this is to hearken to the evidence, only himself asking questions to witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies.
If he goes beyond this, he drops the mantle of the judge and assumes the role of an advocate; and the change does not become him well.
The decision further goes stating:-
We may go further than Lord Denning and say that it is the duty of a judge to discover the truth and for that purpose he may “ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant” (Section 165, Evidence Act). But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses, He must take the prosecution and the defence with him. The court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, ‘like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and (sic the) old’. In a case of Sivasubbu Nador Justice Bashir Ahmed Sayed of Madras High Court (AIR 1951 Mad. 772) said and quoted follow:-
More than 70 years ago in Noor Bux Kazi vs The Empress. 6 Cal. 279 at p. 283 : (7 C.L.B. 385), Sir Richard Garth C.J. & Tottenham J. deprecated the practice of Judges and Mags, questioning witnesses as if they were cross-examining counsel (sic) in the following words:
It is not the province of the Ct. to examine the witnesses, unless the pleaders on either side have omitted to put some material question or questions; and the Ct. should, as a general rule, leave the witnesses to the pleaders to be dealt with as laid down in section 138 of the Act..
The Judge’s .power to put questions under section 165 is certainly not intended to be used in the manner which’ we have had occasion to notice in the present case.” The decision of Calcutta High Court in Sunil Chandra Roy and another vs The State, Chief Justice Chakravarty and Justice Sarkar held (AIR 1954 Cal. 305) (Para-32):
But while theoretically the powers of the Judges are limitless and unfettered, certain principles have come to be recognised which he must follow as to the manner in which he exercises the power. It needs hardly be pointed out that he must not take side; but he must not also “descend into the arena” and forsake the judicial calm for the zeal of a combatant.
If he does so and questions witnesses in the spirit of beating them down or encouraging them to give an answer, his action may have an intimidating or inflatory effect upon them and their evidence may not be the evidence they would have given, if not so intimidated or encouraged. I do not think that the consideration that the Judge may, by indulging in a general examination of witnesses, disable himself to take a detached view of their demeanor, has much force in the case of a jury trial, because the ultimate judge of their credibility are the jurors, who are left free to watch them.
But the demeanour of the witnesses may itself be affected by the authority of the Judge, if he exercises it excessively in questioning them. The author of the said article convinced himself that a number of criminals are escaping for the non-application of the Section 165 of the Evidence Act. The Judges are not to use and apply the power under Section 165 intending to fill up the lacuna of the prosecution rather for the purpose of a reply of a confusion left behind by either party. The trying judge, if uses this -provision to fill up the lacuna of the prosecution, then the judge will descend into the legal arena.
