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Report No. 77

6.6. Need to avoid harassment of witnesses.-

Whether the above criticism is well-founded or not, the courts must ensure, while affording every reasonable opportunity to the counsel to cross-examine a witness, that the witness is not subjected to harassment as might deter all decent, self respecting persons from coming into the witness-box and giving evidence about facts within their knowledge. Sections 148 to 152 of the Indian Evidence Act, 1872 arm the courts with sufficient power for this purpose.

6.7. Role of the Judge. We in India have adopted the accusatorial system as against the inquisitorial system which is in vogue in many of the countries of the European continent. In an accusatorial system it is for the parties or their counsel to prove their respective case or demolish that of the adversary, while, in an inquisitorial system, a great responsibility for bringing the true facts on the record lies on the presiding officer of the court.

Despite the fact that we have adopted the accusatorial system, the trial judges, in our opinion, should not play an altogether passive role, leaving it to the parties and their counsel to bring on record such facts as they may consider essential. The trial judges, we feel, should take greater interest in the proceedings before them and should by putting appropriate questions to the witnesses elicit such information as may be helpful in finding the truth for determining the points of controversy and also for the purpose of removing obscurities on questions of fact.

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