57. A Judge's Indictment

I condense the following from a newspaper report:

"It is extremely common for advocates for the defence in criminal cases to argue that the prosecution story is an entire concoction by the police, and in the vast majority of cases no evidence whatever, whether elucidated in cross-examination or offered in examination-in-chief, is ever produced in support of this argument. Now either the contention is raised on direct instructions of the client, or it is deliberately raised by counsel without any instructions from the client. In the former case the accused has aggravated the heinousness of the offence with which he is charged. In a clear case of this kind the tribunal trying the case should take this into account as a circumstance warranting an increase in the sentence. In the latter case where the legal practitioner has acted without reasonable cause he is guilty of the grossest professional misconduct. Cross-examination on these lines is often grossly abused, and it is the duty of the trying judge, if he has any suspicion when an advocate begins an attack upon the prosecutor or a witness, to demand from the advocate an assurance that he has good grounds for making the suggestion. If such is not forthcoming, cross-examination on these lines should be promptly stopped. If an assurance is given, but if it appears on the termination of the trial that no such grounds has existed, the tribunal should bring the conduct of the advocate to the notice of the High Court, I make these observations in order that a check may be placed on a growing and serious evil.”

These are the remarks of the Chief Justice of the Patna High Court.

I have said enough in these columns to show that justice is practically unobtainable in the so-called courts of. justice in India. But I was unprepared for a Chief Justice (assuming that' he is correctly reported) becoming the framer of a gratuitous indictment against lawyers and their clients. These remarks of the Chief Justice of the Patna High Court, in my opinion, amount to a threat to the accused persons and their counsel. If the fear of an increase in sentence or being disbarred hangs like Damocles' Sword on the accused person or his counsel as the case may be, it would be impossible for either to impugn the conduct of the police. Whatever the learned Chief Justice's experience may be, the experience of the man in the street is, that in a vast number of cases the police story is manufactured, and the growing evil is not in the accused or his counsel, but it is in the police who therefore need to be checked in their excessive zeal to fasten a particular crime upon someone. The ordinary policeman is in mortal fear of degradation or dismissal, if he cannot secure convictions. It becomes therefore his interest to manufacture a case in the absence of reliable evidence. The judge, therefore, whose duty is to presume the innocence of every accused person coming before him, would think twenty times before he puts a single obstacle in his way. Where is the lawyer who has not often felt the truth of the statement which he makes but which he is unable to prove? And even a Charles Russell will be hard to put to it to demonstrate the truth that he feels within himself if, for fear of being disbarred in case he fails to prove his charge, he is hampered in the course of his cross- examination or examination-in-chief. The Piggot forgeries would never have been proved but for his fiery cross-examination. A lawyer who believes in the innocence of his client, whether he is prompted by him or no, is bound, in order to discover the truth, to impugn by way of cross-examination or otherwise the prosecution story. This however is commonsense and common law, but both are at a discount in India's courts of justice. When it is a question of the prestige of the Government which, in its turn, depends upon the prestige of the police, the judges consider it their duty to protect that prestige by turning prosecutors themselves. It is sad, but it is true. The Chief Justice of the Patna High Court is to be congratulated upon his boldness in emphasizing the fact.

Young India, 19-9-1929, p. 308