Chinnappa Reddy, J. - (1.) In this case we are presented with a difficult problem and faced with a strange situation, quite unprecedented, arising out of an unusual attitude adopted by the accused, who quite unmindful of the serious charge of murder made against them, refused to participate in the proceedings before the lower Court and persist in their refusal in this Court also. In the Committal Court as well as in the Court of Session, when examined by the presiding Magistrate and the Judge respectively, they plainly and bluntly stated that they had no faith in the law Courts of the land, established according to them to protect the interests of the landlords, capitalists and the like. They professed; to be "Naxalbarites." As they had not engaged any counsel to defend them and as they had refused to answer the question whether they were possessed of sufficient means to engage a Counsel, the learned Sessions Judge thought it desirable to appoint a Counsel at the cost of the State to defend them. He requested a senior practitioner of the Court to defend the'm but the accused would have none of it and told the Sessions Judge that they did not want the services of a lawyer. The case therefore, proceeded without the accused being defended by a lawyer. The prosecution examined twenty witnesses. At the end of the examination of each witness, the accused were asked by the Sessions Judge whether they wished to cross-examine the witness. They declined to cross-examine any witness. Instead they shouted slogans. When examined by the Sessions Judge at the conclusion of the evidence for the prosecution, they reaffirmed their lack of faith in Courts and the present social system. At the close of the trial the learned Sessions Judge convicted the three accused under section 302 read With section 34 and sentenced A-1 and A-2 to death and A-3 to imprisonment for life. While A-3 has preferred an appeal through counsel, A-1 and A-2, it is reported by the Jail Superintendent, have refused to prefer an appeal. Their case also is however before us in the reference made by the learned Sessions Judge under section 374, Criminal Procedure Code, for confirmation of the sentence of death. They have refused to be represented by any Counsel at the hearing of the reference. Having regard to the importance of the matter we requested three senior practitioners of this Court, Sri R. Ramalinga Reddy, Ex. Public Prosecutor of the State, Sri P.A. Chowdary and Sri B.P. Jeevan Reddy to assist us on the legal and constitutional questions involved. We are grateful to them for their assistance.
(2.) We may at once state that the learned Sessions Judge who tried the case adopted a negative and a passive attitude at the trial. It was as if he wasa spectator and not a participant in the trial. In a case where the charge is of a capital nature and where the accused are undefended, be it by choice one would expect the presiding Judge to evince an active interest and participate in the trial by putting questions to witnesses in order to ascertain the truth; Every Criminal trial is a voyage of discovery in 'which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may 'ask any question he pleased, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant.' Section 172 (2) of the Code of Criminal Procedure enables the Court to send for the police-diaries in a case and use them to aid it in the trial. The record of the proceedings of the committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial. In the present case there were certainly several matters which required clarification and elucidation. To give but one illustration P.W. 1 who gave the First Information Report then gave the description of the assailants in the following words : "............three strange persons came. Out of them two are of medium complexion and one of fair complexion.. Theyhave croppedheads and they were wearing white shirts and dhoties."
(3.) But in evidence he said : " One of them is short with brown hair and fair in complexion. One of them was having tattoo marks and letters on his left hand and his nose on the right side had been pierced. The third person had (Gunthakandlu) Gunta Kandlu. He had slight ' Gooni I can identify them. Those three persons are in the dock, and they are the accused 1 to 3 in the dock. The person with 'Gunthakandlu' is A-l. The short person with fair complexion is A-2. The person haying tattoo letters is A-3".;