Chinnappa Reddy. J. - (1.) 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 [Pollock and Maitland:The history of English law] 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' [Jones v. National Coal Board (1957) 2 All ER 155.], Is he to be a spectator or a participant at the trial Is passivity or activity to mark his attitude If he desires to question any of the witnesses, how far can he go Can he put on the gloves and 'have a go' at the witness who he suspects is lying or is he to be soft and suave These are some of the questions which we are compelled to ask ourselves in this appeal on account of the manner in which the judge who tried the case put questions to some of the witnesses.
(2.) The adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding over a trial 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 with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. As one of us had occasion to say in the past: "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 pleases, 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". (Sessions Judge, Nellore v. Intna Ramana Reddy, ILR (1972) Andh Pra 683).
(3.) With such wide powers the Court must actively participate in the trial, to elicit the truth and to protect the weak and the innocent. It must, of course, not assume the role of a prosecutor in putting questions. The functions of the counsel, particularly those of the Public Prosecutor, are not to be usurped by the judge, by descending into the arena as it were. Any questions put by the judge must be so as not to frighten, coerce, confuse or intimidate the witnesses. The danger inherent in a judge adopting a much too stern an attitude towards witnesses has been explained by Lord Justice Birkett: "People accustomed to the procedure of the Court are likely to be over-awed 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 it may be, that the judge is not holding the scales of justice quite eventually". Extracted by Lord Denning in Jones v. National Coal Board. (supra). In Jones v. National Coal Board, Lord Justice Denning observed: "The Judge's part in all this is to hearken to the evidence, only himself asking questions of 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 lie goes beyond this, he drops the mantle of the Judge and assumes the robe of an advocate; and the change does not become him well". 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" (Sec. 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 the old".;