A JUDGE MAY SPEAK!

By:
MUHAMMAD EJAZ RAZA
Civil Judge Sheikhupura
ejazraza@hotmail.com

Judicial Officers are advised by their seniors and even by the Judicial Academies to remain mute during the hearing of the cases. But the habit becomes so deep rooted that sometimes they hesitate to ask the most genuine questions on certain points of the case. Silence----they think is not only their strongest shield but also the sharpest sword with which they can do wonders in the dual of “tactfulness”. Silence becomes their second nature and they feel quite comfortable to conceal what is in their heart and mind. Otherwise, they believe, their ideas or more properly their thunder would be stolen. And then on the day of announcing judgment, their ‘golden silence’ springs out like a Jack out of box.

What makes the reticent judges permanently mute?

You may decide yourself, whether or not the silent and tactful judges are justified in their tactful silence. In a country like ours, where the trial of a case and that of a judge go side by side; judges have to save their skins first. If a judge seeks clarification from the accused or the advocate his mind is read, his words are interpreted and case is got transferred. So silence is considered a safe option. Let’s see whether law so demands to keep silent or it is their own strategy to keep mum. Article 161 of Qanun-e-Shahadat provides:

Judge’s power to put questions or order production.

“The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he places, in any form, at any time, of any witness, or of the parties about 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 witness upon any answer given in reply to any such question:

Provided that the Judgment must be based upon facts declared by this Order to be relevant, and duly proved:

Provided also that this Article shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under Articles 4 to 14, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the judge ask any question which it would be improper for any other person to ask under Article 143 or 144; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted”.

Case law from the Indian jurisdiction:

The other day, a wonderful judgment from Indian Jurisdiction, shedding light on the role and approach of a Judge during the trial, really clinched my attention and I could not move an inch without going through the whole judgment. The judgment, I think, is a beacon light in the legal literature of sub-continent. How it is relevant to our Jurisdiction, is a simple question. Our legal system has sprung from the same fountain. Twins share many traits, their hearts may not throb for each other but their destinies are intertwined. India and Pakistan share as much as their international boundary and culturally they share as much as the words of their languages. They are born twin (that is why they keep on wrangling). I don’t mean to shed light on Indo-Pak political relations or to discuss CBMs and be counted amongst the traitors but my object is just to make home the point that though we are separate entities but our problems and approaches are similar and we can and we should benefit from each others’ experiences.

The relationship between the judge and the Court-- outlined.

The judgment is singular in nature. It outlines the principles and mode of recording evidence; the relationship between Courts and the prosecutors and the participatory role of Courts in a trial. Whether the judge should be reticent or taciturn? Whether the silence is always golden and speech is always silver? I would love to share the excerpts of the judgment with my legal fraternity and the academia. Here we go:

State Of Rajasthan Vs. Ani @ Hanif And Others:

The learned senior defence counsel Sushil Kumar criticised and raised the objections that the manner in which the trial Judge had put the question was illegal. Counsel submitted that when the cross-examiner has successfully elicited a pivotal answer from PW-3 it was improper for the Court to have interjected to upset the trend! Worthy judges of the Supreme Court held that:

“We are unable to appreciate the above criticism. “Section 165 of the Evidence Act confers vast and unrestricted powers on the trial Court to put "any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant" in order to discover relevant facts. The said section was framed by lavishly studding it with the word "any" which could only have been inspired by the legislative intent to confer unbridled power on the trial Court to use the power whenever he deems it necessary to elicit truth. Even if any such question crossed into irrelevancy the same would not transgress beyond the contours of powers of the Court. This is clear from the words "relevant or irrelevant" in Section 165. Neither of the parties has any right to raise objection to any such question. [205-G- H, 206-A]”2

Dynamic role of a judge in criminal trial

Reticence may be good in many circumstances, but a judge remaining mute during trial is not an ideal situation. A taciturn Judge may be the model caricatured in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. Criminal trial should not turn out to be a bout or combat between two rival sides with the judge performing the role only of a spectator or even an umpire to pronounce finally who won the race. A judge is expected to actively participate in the trial, elicit necessary materials from witnesses at the appropriate contest, which he feels necessary for reaching the correct conclusion. There is nothing, which inhibits his power to put questions to the witnesses, either during chief examination or cross-examination or even during re-examination to elicit truth. The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence collecting process. It is a useful exercise for trial judge to remain active and alert so that errors can be minimised. [206-B-E]. In this context it is apposite to quote the observations of Chinnappa Reddy, J. in Ram Chander vs. The State of Haryana (AIR 1981 SC 1036): relied on.4

On correcting the tongue slips by the witness:

The judgment further reads that When the trial judge noticed that PW-3 was in a bit of confusion during cross-examination he put a question to get the confusion clarified.------ If the witness has corrected an error slipped out of his tongue there is no justification terming his evidence as "not believable", particularly since the High Court has found that presence of PW-3 at the scene of occurrence during the relevant time is indisputable. In the instant case, there was nothing wrong in the trial Court interjecting during cross-examination of PW-3 with a view to ascertain the correct position. [205-E, 207-A]3

On discrepancy regarding the time of recording FIR:

The discrepancy regarding the time of recording First Information Statement, on the facts of this case, is not enough to castigate the testimony of an important eyewitness, whose presence at the spot cannot in any way be doubted. The maximum consequence, which such discrepancy may visit on the facts of this case, is that the First Information Statement cannot be used to corroborate the evidence of the maker of it. [207-C-D]3

On status of “Not nominated in FIR”:

The evidence of the injured witness PW-18 cannot be rejected merely because PW-3 did not name him in the FIR. The condition of the maker of the First Information Statement should be borne in mind whether he was in a position to reproduce the vivid details of the occurrence including making reference to all the persons who would have witnessed the occurrence. [207-G-H; 208-A]

The injured witness, PW-3, correctly identified all the six accused in Court as the assailants. But in the FIR filed by him only the names of four accused were mentioned but not the names of the remaining two accused. The Police did not involve PW-3 in the test identification parade. Hence, the two accused were entitled to benefit of doubt and were rightly acquitted by the High Court But the High Court erred in setting aside the conviction recorded by the trial Court against these four accused overlooking the evidence of PW-3 and other important witnesses examined by the prosecution. Accordingly, the conviction and sentence passed by the trial Court against these four accused is restored.

Is the role of a judge that of a referee or umpire?

“The adversary system of trial being what 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."

We respectfully concur with the aforesaid observations. We find no wrong in the trial Court interjecting during cross-examination of PW-3 with a view to ascertain the correct position.”3