Courts should not be mere tape recorders: Supreme Court

Courts have to take a participatory role in a trial and not act as "mere tape recorders", the Supreme Court said and lamented that there is "practically no effective and meaningful cross-examination" by public prosecutors of any hostile witness during criminal appeal hearings.

The apex court said a judge has to monitor the proceedings in aid of justice and, even if the prosecutor is remiss or lethargic in some ways, the court should control the proceedings effectively so that the truth is arrived at.

Observing that relations between the public prosecution service and the judiciary are the very cornerstone of the criminal justice system, a bench headed by Chief Justice D.Y. Chandrachud said time and again, the top court has said there should not be any element of political consideration in matters like appointment to post of public prosecutor etc.

The observations by the bench, also comprising justices J.B. Pardiwala and Manoj Misra, came with a judgement upholding the conviction and life sentence awarded to a man for murdering his wife in 1995.

"It is the duty of the court to arrive at the truth and subserve the ends of justice. The courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by witnesses," the bench said in its verdict delivered on Friday.

It said the court must be conscious of serious pitfalls and dereliction of duty on the part of the prosecuting agency.

The bench said a judge is expected to actively participate in the trial, and elicit necessary materials from the witnesses in the appropriate context which he feels necessary for reaching the correct conclusion.

It said any crime committed against an individual is a crime against the entire society and in such circumstances, neither the public prosecutor nor the presiding officer of the trial court can afford to remain remiss or lackadaisical in any manner.

The apex court said while making appointments, like for the post of public prosecutor, the only consideration for the government should be the merit of the person.

"The person should be not only competent, but he should also be a man of impeccable character and integrity. He should be a person who should be able to work independently without any reservations, dictates or other constraints," it said.

The bench noted that public prosecutors, who are responsible for conducting prosecutions and may appeal against the court decisions, are one of the judges' natural counterparts in the trial proceedings and also in the broader context of management of the system of criminal law.

Observing that free and fair trial is the very foundation of criminal jurisprudence, the bench said, "There is a reasonable apprehension in the mind of the public at large that the criminal trial is neither free nor fair with the prosecutor appointed by the state government conducting the trial in a manner where frequently the prosecution witnesses turn hostile".

It noted that over a period of time, the apex court has noticed while hearing criminal appeals that there is practically no effective and meaningful cross-examination by the public prosecutor of a hostile witness.

"The only thing that the public prosecutor would do is to bring the contradictions on record and thereafter prove such contradictions through the evidence of the investigating officer. This is not sufficient," it said.

"What we are trying to convey is that it is the duty of the public prosecutor to cross-examine a hostile witness in detail and try to elucidate the truth and also establish that the witness is speaking a lie and has deliberately resiled from his police statement recorded under section 161 of the CrPC," the bench said.

The top court was dealing with an appeal filed by the convict challenging the May 2014 judgement of the Delhi High Court which had affirmed his conviction and life term awarded to him by the trial court.

According to the prosecution, the appellant had married in 1982 and in December 1995, he murdered his wife due to their strained marital relationship.

The police had claimed that his minor daughter, who was five years old at the time of the incident, was the sole eye-witness to the incident.

The bench noted that during the trial, the minor failed to support the prosecution's case and was declared a hostile witness.

While dismissing the appeal, the apex court noted it should not overlook the fact that the appellant had inflicted 12 blows with a knife on the deceased who was unarmed and helpless.

"For all the foregoing reasons, we have reached to the conclusion that the high court committed no error in affirming the judgment and order of conviction passed by the trial court, holding the appellant guilty of the offence of murder of his wife," it said.

Noting that the appellant has undergone almost 11 years of imprisonment so far and is about 65 years old, the bench granted him liberty to prefer an appropriate representation addressed to the state government praying for remission of sentence.

It said if any such representation is filed by the appellant, the state shall look into it and take an appropriate decision in accordance with law within four weeks.