Author Name:   YSRAO JUDGE

‘If the Public Prosecutor was absent and if the witnesses were not kept present and if the applications for witness summons were not presented by the prosecution then also the court was not powerless. The court itself could have issued witness summons in order to see that the person behind the screen of the stage does not suffer....

Examination Of Witness By The Court In The Absence Of Prosecutor

‘If the Public Prosecutor was absent and if the witnesses were not kept present and if the applications for witness summons were not presented by the prosecution then also the court was not powerless. The court itself could have issued witness summons in order to see that the person behind the screen of the stage does not suffer.’

On account of the actions and inactions of the police as well as the trial courts, an innocent witness is being subjected to unnecessary torture and harassment in many cases on the ground that public prosecutor is absent. In this article, I intend to discuss the aspect ‘examination of witness by the court in the absence of prosecutor’ in the light of some rulings of our judiciary. Before going to discuss that aspect, it is apt to see the ruling ‘Hardev Prajapati S/O Shri ... vs State Of U.P. ; Held: All Courts of law are established for furtherance of interest of substantial justice and not to obstruct the same on technicalities. Reference-- Jai Jai Ram Manohar Lal v. National Building Material Supply; , wherein it has been held that the substantial justice and technicalities, if pitted against each other, the cause of substantial justice should not be defeated on technicalities. No procedure in a Court of law should be allowed to defeat the cause of substantial justice on some technicalities. ’. in view of this ruling, it is clearly known that the cause of substantial justice should not be defeated by technicalities.

What If A Witness Is Examined In The Absence Of Prosecutor…
In 2010, the Hon’ble High Court of Delhi, it was held: ‘ So far as the submissions of learned prosecutor regarding mandate of Section 225 Cr.P.C. is concerned, we are not inclined to accept it. It would have been better if the learned Sessions Judge, in view of the mandate of Section 225 Cr.P.C., had refrained from recording the statement of a material eye-witness in the absence of the public prosecutor. Once he has examined the witness, his testimony cannot be effaced from the record and it can be considered as statement of a witness recorded under Section 311 Cr.P.C., which provision confers power upon the Court to examine any person in attendance at any stage of any inquiry, trial or other proceedings, under the Code of Crl. A.No.110/1997 Page 20 of 22 Criminal Procedure. We may note that the learned Additional Sessions Judge, after deferring further examination of PW6 on 18.10.1994 on account of absence of the public prosecutor proceeded further to examine PW7 complainant Ajay Kumar on the same day, which could have been avoided once the learned Additional Sessions Judge had decided to defer further examination of PW6 due to absence of the Public Prosecutor. Such selective examination of witnesses in absence of the Prosecutor can sometimes give rise to unnecessary apprehension about the fairness of the trial.’

Their Lordships of the Judicial Committee in -- 'Adan Haji Jama v. The King', AIR 1948 PC 63 (E). There what happened was that at a criminal trial, as no Public Prosecutor was present, the Judge examined the prosecution witnesses himself; summed up the evidence and convicted the accused. Sir John Beaumont In delivering the judgment of the Judicial Committee held that the combination in one person of the duties of the prosecutor and the Judge prevented the trial from being one conducted substantially in the manner required by law and therefore Section 393 of the Ordinance prevalent in Somaliland, which is in the same terms as Section 537, Criminal P. C., cannot be called in aid to support a conviction in a trial held in that manner.

Judge Has Power To Examine Prosecution Witness
There is no statutory provision that a Judge should not examine a prosecution witness. In fact In the Indian Evidence Act, Section 165 expressly lays down that 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 about any fact relevant or irrelevant. Such a rule is prevalent in England and presumably in the Protectorate and Somaliland as well. Despite that fact their Lordships held that if a Judge were to examine prosecution witnesses in the absence of the prosecutor, the whole proceedings will be rendered null and void.

Section 165 Of The Evidence Act Confer Vast And Wide Powers On Presiding Officers Of Court:
The Apex Court in Zahira Habibulla H. Sheikh and Anr. v. State of gujarat and Ors., reported in 2004 AIR SCW 2325,, has clearly observed that : "Section 311 of the Code and S. 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at."

Merely Because The Prosecutor Is Absent, The Accused Cannot Be Acquitted:
In the case of State Of Kerala vs Krishnan : AIR 1962 Ker 8; it was observed that ‘Originally it was posted to 22-4-1900. On that day the prosecutor and the accused were pre-sent but the witnesses were not present, sO the case was adjourned to 11-5-1960. On that day when the case was called the accused and two witnesses were present. The prosecutor was not present. It is stated in the appeal memorandum that the Head Constable who was in charge of the case had left the court with the permission of the Magistrate. Whether it is true or not, it is admitted that the prosecution witnesses were present in court. The Magistrate however did not examine the witnesses actually present in court, but acquitted the accused on the ground that there is no prosecutor to examine the witnesses. He held that mere presence of the witnesses without anybody to examine them would not amount to producing the witnesses within the meaning of Clause 7 of Section 251-A and acquitted the accused under Section 251-A Clause 11. The order is clearly wrong, perverse and unsustainable in law. Reference in this connection may be made to the decision reported in State of Kerala v. Gopalan, 1960 Ker LT 774 : (AIR 1962 Kerala 3) and the Bench decision in State v. Aboobaker, 1960 Ker LT 1142. If the Magistrate could not examine the witnesses present in court he ought to have adjourned the case. Clause 7 enjoins on the Magistrate to take all evidence that nay be produced. Merely because the prosecutor is absent, the accused cannot be acquitted. The Magistrate has also the duty to see that justice is done in a case. The acquittal is therefore set aside. There will be a retrial of the case by some other Magistrate.’

The Person Behind The Screen Of The Stage Does Not Suffer:
In 2003, in the case of Central Bureau Of Investigation ... vs Chandrakant Ramsingh Rathod, it was held that (In Para 20),. It is true that apart from the said decisions and even considering the decision of A.R.Antulay's case (supra), the powers of Judges and Magistrates to close the evidence have not been taken away by any of those judgments. The latest pronouncement of the Hon'ble Supreme Court in P.Ramachandra Rao Vs. State of Karnataka (supra) has said that it is not the function of the court to lay down a law of limitation for closure of evidence and such a law cannot be applied uniformly without having regards to the facts and circumstances of each particular case. At the same time, in the case on hand though it was the duty of the prosecution to keep the witnesses present and to see that applications for witness summons are presented, nevertheless there was some duty on the part of the court concerned also. As stated above, if the Public Prosecutor was absent and if the witnesses were not kept present and if the applications for witness summons were not presented by the prosecution then also the court was not powerless. The court itself could have issued witness summons in order to see that the person behind the screen of the stage does not suffer. In the present case, I find that on account of the closure of evidence of the prosecution, without intimation or notice to the original informant it has resulted in serious injustice to the cause and system of justice and to the cause of the original informant. He never knew about the dates fixed for recording of evidence before the trial court. He never knew that the applications were submitted by different accused for closure of evidence in view of the decision of Raj Deo Sharma I and Raj Deo Sharma II. He never knew that the court was hearing the said application. This would show that grave injustice has been caused to the original informant who had put the machinery of the investigating agency into motion, on account of which the concerned respondents have been facing their criminal trial in respect of serious offences like offences punishable under the Prevention of Corruption Act. In para 21, it was further held that ‘ Therefore, I am of the opinion that simply because the prosecution did not keep the witnesses present and simply because the witness summons was not applied for it would not be just, proper and legal to close the evidence of the prosecution behind the back of the original informant. I am of the view that even the court itself could have exercised it's powers suo-motu for issuing witness summons for doing complete and substantial justice to both the parties.’

Conclusion:
Apart from the above, the public prosecutor must not forget that ‘A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the licensed and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party.’ Mulling over all these rulings, I opine that judge has power to examine the prosecution witness even in the absence of public prosecutor in the interest of justice, a fortiori, the witness behind the screen of the stage does not suffer .
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# Central Bureau Of Investigation ... vs Chandrakant Ramsingh Rathod
# Reference - Ghanshyam Dass and Ors. v. Dominion of India and Ors.
# Raju @ Battu vs State Of Delhi; * IN THE HIGH COURT OF DELHI AT NEW DELHI CRL. APPEAL NO. 110 OF 1997; Judgment reserved on: 22th January, 2010 Judgment delivered on: 29th January, 2010
# It was observed in ‘In Re: Sellamuthu Padayachi vs Unknown : AIR 1954 Mad 313; Bench: G Menon, B A Sayeed.’
# In Re: Sellamuthu Padayachi vs Unknown : AIR 1954 Mad 313; Bench: G Menon, B A Sayeed.
# Medichetty Ramakistiah And Ors. vs The State Of Andhra Pradesh on 19 March, 1959: AIR 1959 AP 659, 1959 CriLJ 1404

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