Sunil Kumar vs State Of Rajasthan

Heard learned counsel for the petitioner as well as learned Public Prosecutor and also perused the material on record.

The petitioner has been arrested in connection with FIR No.64/2017 of Police Station, Shri Balaji, District Nagaur for the offences punishable under

Sections 8/15, 8/18, 8/29 of NDPS Act. He has preferred this third bail application under Section 439 Cr.P.C.

After attempting to argue the matter for quite some time, learned counsel for the petitioner has prayed that he does not want to press this bail

application, therefore, it may be dismissed as not pressed.

Normally, such prayer is granted by the Court but in the peculiar facts and circumstances of this case, I am not inclined to accede the prayer of the

learned counsel for the petitioner to dismiss this bail application as not pressed. Hence, this bail application is being decided on its merits.

As per the prosecution story, the then Station House Officer, Police Station, Kotwali, Nagaur along with other police officials reached Shri Balaji Bus

Stand in search of the petitioner, who was a suspect in an NDPS case, where Sita Ram - Assistant Sub Inspector of Police Station, Ram Prakash -

Head Constable, Har Chand, Imi Chand, Om Prakash and Ram Sukh - Constables and others of Police Station, Shri Balaji, District Nagaur joined

them and then all of them reached the residential house of the petitioner at 8:40 P.M. on 16.09.2017, where they found 8-10 gunny bags lying on a

Chabutra, situated in front of residential house (Dhani) of the petitioner, and one person was seen, who was dragging a gunny bag for loading it into a

white Bolero Camper, however, upon seeing the police party, that person threw the said bag then and there; he started the vehicle and drove it away

at high speed. The said person was identified by Sita Ram - ASI, Ram Prakash - Head Constable, Harchand and Imi Chand - Constables of Police

Station, Shri Balaji, District Nagaur as the petitioner.

During the course of investigation, the statements of above witnesses including the other witnesses were recorded by the Investigating Officer,

wherein they specifically stated that they identified the person, who ran away from scene of offence as the petitioner, and also stated that during the

search, they found those gunny bags filled with poppy straw, which was above commercial quantity.

The petitioner was later on arrested and charge-sheet for the offences punishable under Sections 8/15 and 8/18 of NDPS Act has been filed against

him. Statements of several prosecution witnesses have been recorded before the trial court, in which Ram Prakash, the then Head Constable of Police

Station, Shri Balaji, District Nagaur was examined as PW.2, whereas Sita Ram - the then ASI, Police Station, Shri Balaji was examined as PW.3, both

these witnesses, in their court statements, reiterated that they saw the petitioner throwing a gunny bag of poppy straw. It was also reiterated by them

that as the petitioner is resident of the territory of Police Station, at which they are posted, they already know him.

Now statements of three Constables, who were also the members of the police party, which raided the house of the petitioner, viz. Harchand -

Constable No.1408, Ram Niwas - Constable No.584 and Imi Chand - Constable No.11 have been recorded as PW.8, PW.9 and PW.10 respectively.

In their cross- examination, those witnesses have stated that they had not identified the person, who ran away from the scene of offence after

throwing the gunny bag as it was dark.

Surprisingly, at this stage, Additional Public Prosecutor neither requested the Presiding Officer to declare those witnesses as hostile nor sought any

opportunity to cross-examine them. Such behaviour of the Additional Public Prosecutor raises doubt about his ability.

More surprisingly, the Presiding Officer did not bother to notice the above situation and remained a mute spectator.

Section 165 of the Indian Evidence Act empowers a Judge to ask any question in any form, at any time, of any witness, or of the parties about any

fact relevant or irrelevant.

The Hon'ble Supreme Court in State of Rajasthan vs. Ani alias Hanif & Ors. reported in AIR 1997 SC 1023 has held as under:

Shri Sushil Kumar, learned senior counsel criticised the manner in which the trial Judge had put the question. 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.

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 crosses 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.

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 about 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 context 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.

In this context it is apposite to quote the observations of Chinnappa Reddy, J. in Ram Chander v. State of Haryana, AIR 1981 SC 1036 : (Para 2)

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.

I am prima facie of the opinion that the Presiding Officer failed in its duty in actively participating in the trial.

Coming to the merits of the case, it is clear that two witnesses viz. PW.2 Ram Prakash and PW.3 Sita Ram have specifically stated that they had

identified the petitioner when he was fleeing away from the scene of crime after throwing gunny bag containing poppy straw. The total contraband

poppy straw allegedly recovered from the petitioner was above commercial quantity.

In view of the above, I am not inclined to grant bail to the petitioner. Hence, this third bail application preferred on behalf of the petitioner under

Section 439 CrPC is rejected.

A copy of this order be sent immediately to Inspector General of Police, Ajmer as well as to the Superintendent of Police, Nagaur to call the

explanations from Ram Niwas - Constable No.584, Imi Chand - Constable No.11 and Har Chand - Constable No.1408 as to how and under what

circumstances, they retracted from their police statements before the trial court and if the explanations of those persons are not found satisfactory,

appropriate disciplinary proceedings be initiated against them.

A copy of this order be also placed before Hon'ble the Inspecting Judge of Merta Judgeship for consideration.