Judge Can't Usurp Powers Of Prosecutor By Conducting Chief Examination: Kerala High Court Sets Aside Life Conviction After 14 Yrs Of Custody

The Kerala High Court has recently (12 January) observed that a judge cannot assume the role of a Public Prosecutor by usurping into the counsel's powers.The observation was made by a division bench of Justice Raja Vijayaraghavan V and Justice K V Jayakumar while setting aside the life sentence imposed on an accused convicted of murder, holding that the entire trial stood vitiated due to gross denial of the constitutional right to a fair trial. It was further held that ineffective and inconsistent legal aid, prolonged delay, and trial judge's assumption of the role of the prosecutor struck at the root of due process guaranteed under Article 21 of the Constitution. The bench delivered the judgment in an appeal preferred by the sole accused in a case for which the appellant stood for trial and was punished under Section 302 and 324 of the Indian Penal Code (IPC). The prosecution case was that the appellant who was playing cards during the Onam Celebration of Royal King Arts and Sports Club, Kunnelpeedika, had stabbed a person in an altercation during the game. The incident took place in September, 2011 and the trial concluded in October 2019. The Sessions Court convicted the appellant and sentenced him to life imprisonment and fine of Rs. 50,000. The appeal was filed against the conviction alleging that the appellant was convicted without properly appreciating the evidence. It was also submitted that the accused was not represented by a competent lawyer for his defence and was allowed to cross-examine the crucial and material witness, thereby causing prejudice to him.The Court also noted that the Sessions Judge examined certain witnesses in the absence of the Public Prosecutor.“The approach of the learned Sessions Judge is illegal and unfair. It is a trite law that the court shall afford a fair opportunity to the prosecution and the defence to adduce evidence in order to substantiate their contentions. The learned Sessions Judge herself assumed the role of Public Prosecutor and took up the chief examination by herself and thereby exceeded the powers vested in the court.” Court noted.The Court noted that by virtue of Section 165 of the Indian Evidence Act, a Judge can put questions to the witnesses to uncover the truth. "However, it is impermissible for a Judge to assume the role of a Public Prosecutor by usurping into the powers of a Public Prosecutor.” Court added.Reliance was placed on Ram Chander v The State of Haryana [1981 KHC 626], were the Supreme Court has held that the Court must not assume the role of a prosecutor in putting questions.The Court has also observed that the accused conducted the cross-examination without the assistance of a qualified and competent legal practitioner of either his own choice or a legal Aid Counsel appointed by the Court which has caused a great prejudice to the right of defence of the accused.“The trial court has failed to ensure that the accused is represented by a competent lawyer to defend his case, discarding the directions issued by the Apex Court.” Court notedThe Court further noted that the Sessions Judge has recorded the evidence of the material witnesses in the absence of the accused which is in violation of Section 273 of CrPC which states that evidence must be taken in presence of the accused.The Court has also examined the relevant provision of the Constitution of India which includes Articles 21, 22 and 39A of the Constitution and underlined the importance of the trial by a Court of Session as the Sessions Judge is empowered to impose a sentence of imprisonment for life or even capital punishment. The Court highlighted the principles laid down by the Apex Court with respect to Fair Trial. The Court observed that in Hussainara Khatoon and Others v Home Secretary, State of Bihar [AIR 1979 SC 1369], the Apex Court held that free legal aid is an essential and integral part of the 'reasonable, fair and just' procedure guaranteed under Article 21 of the Constitution. The Court noted that an accused person who is poor, indigent, or otherwise unable to secure legal assistance cannot be denied legal representation, when his personal liberty is at stake. The Court further relied on other precedents including Dashwanth v State of Tamil Nadu [2025 SCC OnLine 2186], to reiterate the constitutional right afforded to an accused charged with an offence to defend himself is not illusory or imaginary and a reasonable and effective opportunity must be given to the accused to defend himself. The Court then went on to examine the order sheet and other records of the case and noted that the case was committed to the Court of Sessions on 26.07.2012 and the judgment was pronounced on 16.10.2019. Throughout this period of more than 7 years, the accused remained in judicial custody. Even though the proceedings dated 24.09.2012 indicated that bail was granted to the accused and the Sessions Judge ordered the issuance of the release order, the accused was produced before the Court in ...

Judge Can't Usurp Powers Of Prosecutor By Conducting Chief Examination: Kerala High Court Sets Aside Life Conviction After 14 Yrs Of Custody

Anamika MJ

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