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Criminal Revision No. 689 of 1962, decided on 24th October 1962.

Court forming pre‑conceived notions and theories at fairly early stage of trial‑Cross‑examining defence witnesses at length and putting questions which could only be put by counsel 'on instructions‑Judging evidence in light of conclusions formed by itself, rather than drawing conclusions from evidence‑Trial, held, vitiated‑Re‑trial ordered.

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--‑Witness‑Guilty of perjury‑Court's duty to take prompt and adequate action, in absence of reason, why witness should not be prosecuted‑Penal Code (XLV of 1860), S. 193 Criminal Procedure Code (V of 1898), S. 476.

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---‑Criticism of, by Court‑Strong language or sarcasm to be avoided as far as possible.

Aftab Husain for Petitioner.

Qazi Ahmad Khan for A. G. for Respondent.

Date of hearing : 24th October, 1962.

The petitioner was tried for stealing some public property from a Railway godown. That he was taking away the property in question, was admitted at the trial and has not been disputed since. His claim is that he was a bona fide purchaser for value. The learned trial Court disbelieved that plea and the evidence in support, of it, found him guilty of theft and sentenced him to rigorous imprisonment for two years under section 379, P. P. C. On appeal, the learned Sessions Judge came to the conclusion that the offence made out was one of being in posses sion of stolen. property. He accordingly altered the conviction to one under section 411, P. P. C. but maintained the sentence passed. The petitioner has now come up in revision.

2; The learned counsel for the petitioner has urged several poits with a view to showing that the plea raised by the petitioner is true and that the case for the prosecution is not made out. On the record as it stands, I am unable to come to that conclusion.

3. The learned counsel, however, contends that the record should not be allowed to stand as it is, because the learned trial Court conducted the trial with certain pre‑conceived notions and theories which it seems to have formed at a fairly early stage of the trial. This contention of the learned counsel appears to be well‑founded. The learned trial Magistrate cross‑examined the defence witnesses at great length, manifestly for the purpose of discrediting them. He may have had very good reasons for forming the impression that the defence plea was false and that anyone who came forward to support it must, therefore, be a false witness, but a mind that is already made up before the whole evidence has been received, cannot retain that objectivity which the task of a Judge or a Magistrate requires. Having formulated a theory,, an unconscious bias in favour of it is inevit able in the mind that conceived it, and if such a bias is present at the stage when evidence is being led, the tendency to support that theory and look for its confirmation is unavoidable. In the present case, the learned Magistrate, in his zeal to do justice and in his indignation at what seems to have appeared to him as an attempt to frustrate justice, has put questions which could properly be put only by a counsel for a party on instructions received. In the examination of the second witness for the defence, for example, several specific positions seem to have been put to him by the Court. The following portion from his deposition will serve as an instance of the type of questions that were put :‑

"It is incorrect that I have made a false entry in my station diary after the accused was arrested when he said to me that I have thrived on bribes with his help and now I must assist him in his defence."

The record of examination‑in‑chief is contained in 25 lines, that of the cross‑examination in less than 8 lines, but that of the questions by the Court in 115 lines.

4. The pre‑judgment by the learned Magistrate is also apparent from another circumstance. Among the goods that the petitioner was taking away, was a certain quantity of gram regard ing which no evidence was produced before the learned Magistrate that it was a part of the stolen property. The learned Magistrate, however, had this to say on that point :‑

"The prosecution have been rendered helpless when (the witnesses for the prosecution) did not support the prosecution with respect to the six recovered torras of gram as being also the property of the . . . . Depot. The account books of gram kept in the . . . . Depot may have somehow been kept up‑to- date even without this recovered gram, but to my mind it is absolutely clear that the recovered gram was also certainly of the Depot and someone in the establishment of the . . .Depot has . . . . . filled up the lacuna wherever it existed in the books of the . . . . Depot.".

This "absolute clarity" and "certainty" of which the learned Magistrate speaks, has been derived by him through some process other than the weighing of evidence produced before him. He has judged the evidence in the light of his conclu sions; he has not arrived at conclusions in the light of the evidence.'

5. It is incumbent on a Court of law faithfully to follow the law. If the law forbids the arriving at conclusions otherwise than through admissible evidence, then the duty of the Courts is meticulously to avoid the forming of conclusions except on admissible evidence. If, in our conditions, it appears to lead to a travesty of justice, the remedy must lie with the Legislature, not with the Courts. Nor would it be permissible actually to form conclusions otherwise than on admissible evidence, but to express them as if they were based on legally admissible material. The second course, indeed, would be worse, because it would involve as much of a deviation from the law as the first course, but in a form that is disguised.

6. The trial in this case is vitiated by bias, and is accordingly set aside. The conviction and sentence passed at this trial are naturally also set. aside. A fresh trial should take place before another Magistrate.

7. Two other aspects of the judgment of the learned trial Magistrate must be noticed. The first is that, an. the one hand, he came to the conclusion that :‑

"D. W. 2 is in league with the accused and he fabricated evidence to help him by making inspection report in the station diary. The Court has not the least doubt that this witness created this evidence on coming to know that the accused, an accomplice and a friend of his, who was probably his pay‑master also, was arrested. He has clearly perjured."

On the other hand, in spite of this finding so clearly expressed, he does not appear to have initiated any proceedings in respect of the offences of forgery and perjury he believed this witness to have committed. This is anamolous. Administration of justice is a solemn and sacred duty. The Courts are not there to be trifled with. If it appears to a Court that forgery or perjury, has been committed in relation to any proceeding before it, it is its duty to consider why the person concerned should not be prosecuted, and if there is no good reason why he should not be prosecuted, to take prompt and adequate action, so that an impression is not created that anyone can divert or abuse the process of law by falsehood or fabrication and. still run no risk of coming to harm.

The second aspect is that in choosing words and expres sions in which to express its opinion of the witnesses and the parties before it, a Court should avoid, as far as possible, the use of strong language and sarcasm. Such expressions causes unnecessary annoyance without adding anything to the substances of the order.

A. H. Re‑trial ordered.

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