(1) This is a petition under Section 526 of the Code of Criminal Procedure by the State for transfer of Sessions Cases 43/8/63 and 1/8/64 from the file of the court of Session Raichur, to any other Sessions Court. These two sessions cases are said to be in the nature of a case and a counter-case and were therefore being posted together with a certain interval. The circumstances leading to the filing of this transfer petition relate however only to what happened at the trial of Sessions Case No. 43/8/63.
(2) Although what may be called pleadings in this case have been long and argumentative, the facts which are really germane to the disposal of this petition and the controversies relating thereto fall within very small compass. A decision on the truth or otherwise of those facts and their relevancy to the prayer or legal value from the point of view of Section 526 of the Code of Criminal Procedure will conclude this petition one way or the other. I do not therefore propose to deal with or refer to other matters except when reference to them is necessary for the disposal of the principal controversy.
(3) Sessions Case No. 43/8/63 was taken up for trial on 24th November 1965, charges were framed and pleas of the accused recorded. As the Public Prosecutor was not quit well to go on with that case that day, it was adjourned to the following day at his request. On that day, i.e., 25th November 1965, one formal witness was examined after which examination of an eyewitness was taken up. Chief examination of that witness was concluded early on the next day, i.e., 26th November 1965. Cross-examination was then commenced on behalf of accused Nos. 1 to 5 by Mr. Manzural Hassan and continued until about 1 O'clock when he sought and obtained permission of the court to attend to Friday prayers. Whether and if so, at what time he returned before the court rose for midday recess I shall consider at a later stage. During the recess the Public Prosecutor Mr. Mahadevappa appears to have been the Judge in his chambers and complained to him about the intervention of the Judge in the course of the Cross-examination of the witness by Mr. Manzural Hassan. According to the affidavit now filed by the Public Prosecutor in support of this petition that intervention was by way of putting questions at considerable length by the court itself without a note being made to the effect that they were court questions. The affidavit contains the following sentence descriptive of that complaint:
'The defence counsel Mr. Manzural Hassan, Advocate, began cross-examining P.W. 2 and in the course of cross-examination, the trial Judge went on putting questions to a considerable length to the witnesses without making proper note in the deposition sheet as to 'Court Questions.'
It has been stated that the Judge assured Public Prosecutor that he would not put questions to the witnesses without nothing that they were 'Court Questions'. Nevertheless it is complained that the Judge achieved almost the same result by suggesting questions to the cross-examining Counsel and getting them put to the witnesses. At about 4 in the afternoon, the Public Prosecutor states, that a request by him for adjournment to enable him to attend to some cases in the Munsiff's Court was refused and the examination of the witness continued and concluded at 6 P.M. the Court sitting for nearly an hour after the usual Court hours. The next morning, i.e., on 27th November 1965 the Public Prosecutor made an alienation to the Court stating that he intends to move the High Court for transfer of the case under Section 523 of the Code of Criminal Procedure and prayed that reasonable time may be given to enable the prosecution to obtain orders from the High Court. This was treated as an application for adjournment and was rejected by the Judge after pronouncing a lengthy order in which he set out the circumstances purporting to make out that it was an attempt to prolong the proceedings. It concluded with the sentence. 'In the circumstances, the adjournment of the trial is refused'. Thereafter, the next witness P.W.3 was put into the box and his examination continued and concluded. Though the time occupied by the examination of this witness is not stated in any one of the long affidavits or the long report filed by the Judge it appears to me by looking into the original papers that it would not have been concluded before 4.30 or 5 that evening. After the conclusion of the examination of P.W. 3 the Judge made a second order on the Public Prosecutor's application which reads as follows:
'After this order, P.W. 3 is examined. On a second thought and in view of the mandatory provisions of Section 526 of the Code of Criminal Procedure, I find that I cannot avail of sub-section (9) and whatever the inconvenience and costs may be, I am bound to adjourn the case for such period as would afford sufficient time for a transfer application to be made and an order to be obtained thereon. Two weeks time is granted for the said purpose and the case stands adjourned.'
(4) Thereafter, the present transfer petition was presented to this Court on the 8th December 1965. Preliminary orders were passed on 9th December 1965 ordering issue of notice and stay of proceedings in the Sessions Cases.
(5) The learned Sessions Judge, as already stated, filed a long report covering about 24 closely typed pages. The accused in the case who have been notified have not themselves filed any affidavit although on behalf of the first accused his counsel in this Court has filed a statement of objection or a counter. Tow of the defendant Counsel who appeared at the trial Mr. Manzural Hassan and Mr. Nagappa have filed long affidavit.
(6) What is stated above is exhaustive of the facts calling for investigation. The transfer, it will be noticed is asked for principally, if not solely for the reason set out in clause (a) of sub-section (1) of Section 526 of the Code of Criminal Procedure, viz., that a fair and impartial trial cannot be had before the Sessions Judge. The petition to this Court clearly states:
'That the prosecution reasonably apprehends that a fair and impartial inquiry (apparently a mistake for the trial) cannot be had at the hands of the learned Sessions Judge, Raichur'.
In his application to the Sessions Judge for an adjournment or stay, the Public Prosecutor stated.
'That the manner in which the witnesses are being cross-examined is unwarranted by law and the prosecution is likely to be prejudiced in the matter and has reasonable apprehension that it may not get proper justice in the case if continued.'
Although difference language has been used, the substantial of the matter is clear, viz., that the petitioner, i.e., the State in charge of the prosecution entertains reasonable apprehensions that there may not be a fair and impartial trial and the reason for entertaining such an apprehension is stated to be the manner in which the Sessions Judge conducted the examination of the second witness for the prosecution on the 26th November 1965. The three circumstances stated as indicating the manner of examination objected to by the prosecution or on its behalf before me in this petition are: (1) during the time Mr. Manzural Hassan was conducting the cross-examination on behalf of accused 1 to 5, the Judge himself put several questions to the witnesses without making a note that they were court questions, (2) when Mr. Manzural Hassan went out to attend Jumma prayers the Judge himself conducted the cross-examination and (3) in the afternoon, i.e., in the course of the cross-examination of the witness subsequent to the midday recess the Judge instead of putting questions himself directly to the witness suggested questions to the defence counsel and got them to put those questions to the witness.
(7) The first point for investigation clearly is whether and if so, the allegations made above are true or have been established by the material placed before the court.
(8) But, before examining the material for the said purpose it is necessary to refer to the principle of law which has been subject of some argument before me, viz., the rules or the provisions of law governing the right of the presiding officer of a court to put questions to witnesses. In India the matter is covered by Section 165 of the Indian Evidence Act, which reads as follows:--
'The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, above any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the court, to cross-examine any without the leave of the court, to cross-examine any witness upon any answer given in reply to any such questions:
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved X X X X X'
There is a second proviso with which we are not now concerned.
(9) There are some observations in some of the decided cases that the extensive power was conferred on judges in because the legislature at the time it enacted the Indian Evidence Act took the view that the Indian Lawyers in the moffusil were not sufficiently competent to deal with witnesses. With great respect to the learned Judges who made that observation I think it is a misreading of history. The power under S. 165 subserves the great purpose of a judicial trial, viz., to discover, to the extent possible for human beings to do, the truth about facts which are the subject of investigation. Such power is exercised and was being exercised, both before and after the Indian Evidence Act was passed, by the Judges in England.
(10) As to the extent to which the Judges should exercise this power or the limit or restraint which they should impose on themselves while exercising that power, there have been pronouncements by eminent judges in fine and attractive language both in England and in India. Among many cases, passages from two have been cited before me--Jones v. National coal Board, (1957) 2 All ER 155 and Sunil Chandra Roy v. The State, : AIR1954Cal305 judgments in which contain extracts from earlier leading cases dealing with the subject.
(11) It is however clear from all the decided cases that the question whether a judge did or did not overstep the limits of judicial restraint in this regard is a question which has to be decided on the facts and circumstances of each case. From the point of view of a petition for transfer the question for consideration is whether the manner on which the Judge and taken up the role of counsel for one of the parties. The matter has been put before me from different points of view and in different language. To some extent it has been suggested, what should be made out is bias in favour of one party against another. From another point of view it has been suggested that there has been suggested that there has been generated some prejudice to the case one side of the other. Whatever may be the relevancy of either of these approaches when the ultimate order passed by a Court is under examination in an appeal or revision, it appears to me that the approach from the point of view of an application for transfer is slightly different. The approach is not, in my opinion, to be made from the point of view of whether the case of either side has been prejudiced in the sense that the success of the said case had been rendered more difficult from the answers elicited from the witness. If the questions had been properly put to a witness in proper exercise of the power under S. 165 of the Indian Evidence Act it is not open in any one to say that the case should be transferred so that he may have a better chance of success before another Judge or Court. The essence of the matter is whether the conduct of the Judge in that regard has been such as to occasion a reasonable apprehension that a fair and impartial trial cannot be had at his hands. It is from this point of view that the facts have to be analysed and examined.
(12) The approach would therefore, be, not whether there has or has not been any interference by the Judge in the course of cross-examination, but whether the interference has been of such a character as to indicate a certain frame of mind of the Judge which would militate against his duty of conducting a fair and impartial trial or to occasion a reasonable apprehension in the minds of the parties that a fair and impartial trial cannot be had at the hands of the Judge. Although the position may be difficult of a precise statement, one might say in broad terms that if an impression is created that by putting questions to a witness the Judge has actually taken up the case of one of the parties to the contest before him, it may be said that a case has been made out for transferring the trial from his file to the file is some other Judge.
(13)Taking up now the first of the points, the case on behalf of the petitioner is that the Judge put question to a considerable length while Mr. Manzural Hassan was conducting the cross-examination of P.W. 2 and that he put a long series of questions virtually diverting the trial from normal course. It is common ground that there is nothing in the record of the case or transcript of the evidence from which this inference could be gathered. Indeed it is the case on behalf of the petitioner that the Judge did not make, as he should have, any note of questions having been put to the witness as Court questions.
(14) In his report the Judge states that the allegation is inaccurate or unwarranted. According to him, all that he had done by way of intervention was to explain the real import of questions put by defence Counsel whenever they were not quite intelligible to the witness, so that he might elicit proper answers from the witness. That is the substance of the report although there is much which is merely argumentative in relation to this allegation.
(15) The Public Prosecutor's affidavit does not give any details as to the nature and extent of the interference by the Judge. Affidavit of Mr. Manzural Hassan and Mr. Nagappa while stating that they were throughout present at the trial and knew the facts and are in a position to speak to them, do not state full particulars. Both the affidavits while finding fault with the Public Prosecutor for being vague in his allegations are themselves devoid of any particulars or details which they say are important or essential. If it were an ordinary case of party-defendant answering a plaint or a party-respondent answering a petition one could have understood the defendant or the respondent putting the plaintiff or petitioner to strict proof of facts on which some relief is claimed. But, neither the Public Prosecutor nor the defence counsel can regard themselves to be in the same position as parties to a litigation. Especially in matters of this nature I am clearly of opinion that it was the duty not merely of the Sessions Judge while submitting his report but also of the three learned counsel who were present at the trial to have placed before the High Court facts and not mere arguments. By not following this salutary rule they have made the task of the High Court more difficult and given scope for unnecessary suspicious and irrelevant arguments. The rule as to the burden of proof also cannot be strictly applied in this case because we are not concerned with the rights of the parties but with a question of importance from the point of view of administration of justice. So far as this aspect of the matter therefore is concerned, I am obliged on the basis of such probabilities as are available or may be gathered from the admitted circumstances.
(16) That there was some intervention on the part of the Judge is a matter of admission. The controversy is as to the extend and nature of intervention. Whereas the Public Prosecutor states that the Judge put questions at considerable length the affidavits of the other two counsel state that 'at times' when questions were not properly understood by the witness the Sessions Judge used explain the questions in such a way as to enable to witness to understand the full implications of the question. The effect of this is about the same as of the statement made by the Judge in his report.
(17) That the intervention was considered to be of sufficient importance by the Public Prosecutor is clear from the admitted fact that he went and saw the Judge during the mid-day recess. But the exact nature of the complaint made by him to the learned Judge is not made clear either by the Public Prosecutor in his affidavit or by the Judge in his report. In his affidavit the Public Prosecutor states:
'The deponent made a request to the learned trial Judge in recess hours in the chamber and objected to the manner in which the witness was being cross-examined by the Court.
The trial Judge thereupon showed his inclination that henceforth questions put by the Court would be taken as Court questions and resumed hearing of the case.'
The Judge in his report states:
'It is true that on the 26th during recess hour the Public Prosecutor came in my chamber and made a general statement that the witnesses are likely to get scared when the questions come from the mouth of the Court. I explained to him that it was the question of the defence counsel which was cleared to the witness to avoid confusion and elicit proper answer and his apprehension was wholly misconceived. I also told him that if any independent question is asked by me, I note it as Court question. It is false to say that the Court cross-examined the witness and the Public prosecutor objected to it.'
(18) From what is stated above, it would appear that the complaint of the Public Prosecutor related more to an omission on the part of the Judge to make a note that questions put by him were Court questions than to the process (sic) having been actual cross-examination by the Judge himself. Nevertheless, that the Public Prosecutor entertained some grievance about the matter may perhaps be taken on his word. What that grievance was and to what extent it will lend support to the prayer for transfer I shall consider at a later stage. But, at this stage, I wish to say that the Sessions Judge having made the above answer to the allegations made in the Public Prosecutor had come to his chamber mainly for the purpose of securing the attendance of the Circle Inspector of Police by the issue of a non boilable warrant which request be declined and that thereafter he casually mentioned about the so called intervention coming from his (Sessions Judge) and he cleared his (Public Prosecutor's) apprehension.
(19) If, as I have already stated, it is a matter of admission that the Public Prosecutor did see the Judge in his chamber and if he did make a grievance or complaint about the Judge's intervention in the examination of witness, I do not see the relevancy of referring to his alleged request for the issue of a non boilable warrant to secure the presence of the Circle Inspector of Police nor can I appreciate the subsequent statement of the Judge that the Public Prosecutor's reference to the examination of the witness was a casual mention made in the matter.
(20) The next admitted fact is that there was no objection made by the Public Prosecutor, either oral or in writing, in open Court before the mid-day recess. It has been argued on behalf of the petitioner that the Prosecutor might have, no considerations of courtesy to the Court, preferred to put the matter to the Judge personally during the recess which he actually did, while on behalf of the respondents, it has been contended that had the matter indeed been of so serious a nature as is now sought to be made out, one would have expected the Public Prosecutor to put forward objections at appropriate stages of the examination of the witness or at any rate to ask the Judge to make a note that particular questions put by him were Court questions. The importance of selecting one of these opposing views is clear because the seriousness or otherwise of the Judge's intervention would indeed be a measure of the necessary for choosing between an objection in open Court and a personal representation in chambers. It is no doubt not beyond the pale of probability that the Public Prosecutor might have refrained from making an issue of the matter in open Court on considerations of courtesy or prudence. But as counsel, he does owe a duty to his client the State to protect its interests and to prevent the trial from taking a course which might prejudice or jeopardise its case. If, as has been stated, the Public Prosecutor, on a wise exercise of his discretion, preferred not to object in open Court but dealt with the matter by way of personal representation to the Judge in the chambers during the recess, it might well be stated that at any rate, during the proceedings before the recess, he did not feel compelled by his duty as counsel to record his objection.
(21) Before I express a final opinion on this aspect of the matter, it will be better to consider the probabilities relating to the next point of investigation which appear to be a little more definite than those relating to the first point.
(22)That point is whether it is true that when Manzural Hassan went out for Jumma Prayers, further cross-examination was conducted by the Judge himself. On this matter, the clear and definite statement in the affidavits of both Mr. Manzural Hassan as well as Mr. Nagappa is that the cross-examination during the absence of the former was conducted by the latter. It is also not stated before me that there was any impediment to Mr. Nagappa conducting the cross-examination on behalf of accused 1 to 5 during the absence of Mr. Manzural Hassan. I do not find this matter mentioned in the application for adjournment made by the Public Prosecutor on 27th November. There can be little doubt that the actual cross-examination by the Judge himself in the absence of the counsel is a far more serious matter than the intervention by him in the cross-examination when the counsel was present. There is also no doubt that at the time the Public Prosecutor came to make the application for adjournment, he was contemplating an application being made to this Court for transfer. If therefore, he thought fit to state in that application for adjournment what he considered to be improper intervention by the Judge in cross-examination, one may ask why he failed to make mention of that Judge himself cross-examining the witness in the absence of the counsel. There has been some controversy on the question whether Manzural Hassan was absent for one whole hour from 1 to 2 or just about 15 minutes as is stated in the affidavit of the defence counsel. Both according to the Judge's report as well as according to the affidavits of the defence counsel, what Mr. Nagappa did was to elicit contradictions. That the time occupied for the cross-examination of the witness would have been not so short as 15 minutes is clear because eliciting of those contradictions involved the marking of at least a dozen passages from the previous statements as exhibits in the case. But, in my opinion, the question of importance is not the length of the absence but the person who conducted the cross-examination in the absence of Mr. Manzural Hassan. If it could have been made out on clear and acceptable evidence that such cross-examination in the absence of Manzural Hassan has been conducted by the Judge himself, it would have lent considerable strength to the case on behalf of the petitioner. By the same reasoning, the failure to establish that fact necessarily operates as a weakness in the case of the petitioner. I am not satisfied on the material placed before me that I can with any confidence come to the definite conclusion that it was the Judge who conducted the cross-examination in the absence of Mr. Manzural Hassan. It is not an if Mr. Manzural Hassan or Mr. Nagappa was an inexperienced member of the Bar and it is also not as if that in the absence of the former, the other could not have conducted the cross-examination, especially when the records show that though Mr. Manzural Hassan was leading the case on behalf of the first five accused, Mr. Nagappa was also their counsel on record though for purposes of the convenient conduct of the case the two counsel might have divided the work between them, each representing the case of one set of accused.
(23) The difficulty of accepting this part of the case on behalf of the petitioner necessarily has the effect of adding strength to the probabilities relating to the firsts point against the case of the petitioner. More than anything else, one thing that appears to me of considerable significance is that the Public Prosecutor should have chosen not to object in open Court or have the objections placed on record but preferred to make personal representations to the judge in his chambers during the recess hour. I wish to state it as my definite opinion of any counsel, has definite or reasonably certain repercussions either on the conduct of the case or on the result of the case, should be made the subject of objection, discussion or argument in open Court and not in chambers. If therefore, a counsel exercises his on milder basis on considerations which need not be said to be uncomplimentary of him, the only reasonable inference to draw is that he as counsel was of the opinion that that was not a matter of such seriousness as to make an objection and place it on record in open Court. To draw any other inference would be unnecessarily condemning the conduct of either the Judge or the counsel.
(24) In this view, the only reasonable finding that I can arrive at in the matter of intervention by the Judge in the shown to suggest that the Judge was actually siding with one party or to occasion the entertaining of a reasonable apprehension that a fair and impartial trial cannot be expected at the hands of the Judge.
(25) I come now to the position subsequent to the mid-day recess. The allegation in that regard is, not that the Judge put any direct questions himself, but that he suggested questions to the defence counsel and got them put to the witness through the counsel. If any thing this is, in my opinion, a more serious lapse on the part of the Judge than what he is said to have done before the recess. There are two reasons why I find it difficult to accept the suggestion. The first is that I have found it difficult to accept the case in regard to his extensive intervention before the mid-day break. Secondly, if, as stated, what he did before lunch was the subject of discussion between him and the Public Prosecutor during the recess, one would expect the Judge to act with greater restraint thereafter unless, of course, we could say that he had already taken sides or already made up his mind to pursue a certain course, whether right or wrong, in regard to the trial. I have no material before me to hold that the Judge did come to entertain such an attitude. To say that what happened after the mid-day break is indicative of the Judge's attitude and may be regarded as basis for assessing the nature of his conduct of the trial subsequent to the mid-day break is true. But that is the very point which is for investigation. The probabilities examined in the light of the fact that both the judge and the counsel were men of some experience point, in my opinion, to a contrary conclusion. If, as already stated, the public Prosecutor's decision not to make an objection in open Court supports an inference that such lapse, as there was, on the part of the Judge before the mid-day break was not of a serious character and the matter may be taken as more or less talked out between him and the Judge during the recess, there could not have been a deterioration in the position after recess. Had there been any such deterioration, better material would have been placed before me.
(26) Stopping at this point, the position would be that the Public Prosecutor did entertain some sense of grievance but that it was not of such a nature as to oblige or compel him to make an open objection to go on record. If such were the position, the grievance, if any, cannot, in my opinion, be equated to so definite a thing as a reasonable apprehension that a fair and impartial trial was impossible. After all, it is not as if that all people at all times conduct themselves in an absolutely unimpeachable way, Some, lapses, whether on the part of the Judge or on the part of the counsel, need not necessarily have any serious effect and may be capable of quick and effective correction. Men associated with court and conversant with the working of the Courts do not generally get upset if the lapses are of a minor nature. If therefore the Public Prosecutor did not get so upset as to put the objection on record in open court, I do not think it will be an unreasonable inference to draw that though he might have been justified in entertaining some grievance, the grievance was not of the character mentioned above.
(27) The next argument on behalf of the petitioner is that the Judge's rejection of the application for stay or adjournment under S. 526 of the Code of Criminal Procedure is either in itself sufficient to support the prayer for transfer or at any rate a sufficiently strong foundation for an inference that what might have been a mere sense of grievance on the previous day would indeed arouse an actual apprehension that a fair and impartial trial was impossible or may not be expected.
(28) For the proposition that the rejection of the application itself would be sufficient ground for transfer, there is not much authority. Such a proposition no doubt finds support from Walidad Khan v. Emperor : AIR1928All660 . With respect, however, it appears to me to be too broad a proposition of law. As pointed out in a subsequent ruling of the same High Court reported in Richhpal v. State, : AIR1954All69 sub-section (8) of S. 526 of the Code of Criminal Procedure is not the only mandatory provision of that Code, and the contravention of any of the mandatory provisions of the Code does not in itself show or indicate that a fair and impartial trial was impossible at the hands of a particular judicial officer. An error of law or an erroneous application of law is not a matter unknown to courts. The very possibility or probability of such errors being committed is itself the justification for the provision for appeals and revisions. Therefore, something more than a mere contravention of a mandatory provision is necessary to make out a basis for a prayer to transfer a case from the file of one court to that of another.
(29) The Judge in his report as well as in the subsequent order made by him on the adjournment application suggests that his original order refusing an adjournment was due to a bona fide mistake or mis-apprehension of the correct position in law. He also states in his report after referring to the contents of the adjournment application-
'Naturally, I could not put up with this distortion of facts and proceeded to observe in my order that the allegations are twisted and not true....'
In the subsequent or the later portion of his order which I have extracted fully, the suggestion is that he thought that the matter was governed by the discretion available to him as the Sessions Judge under Sub-section (9) of Section 526. But the approach made to the question in the earlier portion does not quite fit in with the provisions of the said sub-section. It is more probable, in my opinion, that what is stated in the extract from his report given above is nearer the truth. It is capable of two interpretations--either it indicates as the petitioner suggests, an attitude of mind sufficient to induce apprehensions that the Judge will not ensure a fair and impartial trial or it indicates, as the respondents suggest, an indignant reaction to what the Judge considered to be an unjust as person made against him. In the light of my opinion on the questions of fact relating to the previous day, I should prefer to accept the latter alternative though it is regrettable that a Judge should permit such reactions to get the better of his judgment.
(30) As I have discussed and taken into account all facts which appear on record and are relevant to the present question, the attempts made in the affidavits to impute motives to one another appear to be wholly unnecessary and unjustifiable, and I do not propose to place any reliance on them. The facts, to the extent capable of being gathered from the records are, in my opinion,, insufficient to support the suggestion that a reasonable apprehension can be entertained that it is impossible to expect a fair and impartial trial at the hands of the Judge.
(31) This is sufficient to dismiss the petition. It has, however been suggested that if, as observed above, the Judge has permitted himself to be considerably moved or disturbed by the application for adjournment as well as by the application for transfer and felt obliged to make a long report actually suggesting that proceedings in contempt of court may be taken against the Public Prosecutor, it may be desirable that the Judge does not go on with the trial. That matter I leave to the Judge, who is due to leave Raichur shortly on transfer. So far as the High Court is concerned, the question is whether the petitioner has made out a case for transfer on any of the grounds mentioned in Section 526(1) of the Code of Criminal Procedure. For the reasons already stated, my opinion is that no such ground is clearly made out
(32) The petition is dismissed.
(33) Petition dismissed