Teja Singh, C.J. - (1.) THIS is a petition by the learned Advocate -General put at the instance of the Government of the State and it is prayed there in that certain observations made by the Sessions Judge of Kapurthala in his order of 18 -6 -2006 whereby he accepted the appeal of one Karam Singh and set aside his conviction should be expunged. Karam Singh was a Police Constable and he was prosecuted under Section 33, Public Safety Ordinance, for inducing the whole Police force of Kapurthala to go on strike. The trial Magistrate convicted him and sentenced him to two months simple imprisonment. On appeal, as observed above, the learned Sessions Judge set aside Karam Singh's conviction.
(2.) THE observations complained of relate to three witnesses who had been produced by the prosecution to support the case against Karam Singh; they are Baldev Krishan, Natha Singh and Gurbakas Singh. It is contended by the learned Advocate General that some of the observations are injudicious and should not find place in a judicial document like a judgment. He further contended that certain facts on the strength of which the witnesses were held to be liars were not put to them and the conclusions of the learned Sessions Judge were merely conjectural. Before I turn to these observations I would like to say a word regarding the principles that a Court of Law must observe while dealing with the conduct and testimony of witnesses and parties that appear before it. The first is that a Court has every right to discuss the conduct of persons before it, either as a party or a witness, untrammelled by any considerations, but in doing so it cannot travel beyond the record. That is to say, if it is sought to condemn a person on the strength of a fact or a circumstance the same must be put to him and he should be given an opportunity of explaining it. Reference in this connection is invited to Amar Nath v. Emperor, A.I.R. 1925 Lah. 187 :, 26 Cr.L.J. 463. This is what the learned Judge held in that case: A judge has no right to test evidence given in Court by material which has not legally been made evidence. He has the right and the duty to test a witness's evidence by putting questions to him for the purpose of clearing up any matters which may be ambiguous or doubtful. But before he is justified in commenting adversely upon a witness's evidence, he must establish the particular fact warranting such, criticism by proper evidence in Court and not by reference to documents which are not properly on the record. In that case a Sessions Judge condemned a Police Officer as perjurer and in coming to this conclusion he relied upon the apparent contradiction between his deposition in Court and the diary prepared by him without, giving him an opportunity to explain the conflict. It was held that the remarks of the Sessions Judge were not justified. The following remarks were made by Tek Chand J., In the matter of H. Daly, A.I.R. 1928 Lah. 740 :, 29 Cr.L.J. 620: It is of the utmost importance to the administration of justice that Courts should be allowed to perform their functions freely and fearlessly and without undue interference by the High Court. At the same time, it is equally necessary that the right of Magistrates to make disparaging remarks on persons who appear, or are named, in the course of a trial, is one that should be exercised with great reserve and moderation, especially where the person disparaged has had little or no opportunity of explaining or defending himself. If the conduct of the witness appears to be suspicious or otherwise not above board, he has the right and the duty to test his evidence by putting questions to him, but before he is justified in commenting adversely upon his evidence he must establish the particular fact warranting such criticism by proper evidence in Court and not on conjectures or by reference to materials which are not properly on the record. The second principle is that the language used by a judicial officer in orders and judgments should always be temperate and he should not allow himself to be carried away by any kind of emotion. Use of strong and improper words is always deprecated.
(3.) SINCE the Government has not considered it proper to prefer an appeal against the order of acquittal it is not open to me to go into merits of the case and to determine how far the learned Sessions Judge was right in setting aside the conviction of Karam Singh. All that I am called upon to do is to examine the language of the Sessions Judge with regard to the witnesses in question in the light of what I have said above. It is not denied that he had every right to disbelieve the witnesses and even to hold that they were liars, but what is objected to is the use of the term "damn liar". I have no hesitation in agreeing with the learned Advocate -General that such a term, which is not even used by respectable persons in ordinary conversation, should not find a place in a judgment and there was absolutely no jurisdiction on the part of the learned Sessions Judge to use it.;