We can only repeat in this connection the observations of the Privy Council in – ‘AIR 1936 PC 253 (2) ’, in regard to the Magistrates placing themselves in positions where they would have to step into the witness box and depose as ordinary citizens-
“In their Lordships’ view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police Officers under Section 162 of the Code; and to be at the same time freed, notwithstanding their position as Magistrates, from any obligation to make records under Section 164. In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever……..”
This position was laid down with greater emphasis by Mr. Justice P. B. Mukharji in—‘M. C. Mitra vs. State’, AIR 1951 Cal 524 , where the learned Judge observed –
“Before I conclude I wish to express Court’s great disapprobation of the practice that seems to have become very frequent of sending Magistrates as witnesses of police traps. The Magistrate is made to go under disguise to witnesses the trap laid by the police. In this case it was Presidency Magistrate and in other cases which have come to our notice there have been other Magistrates who became such witnesses.
To make the Magistrate a party or a limb of the police during the police investigation seriously undermines the independence of the Magistrate and perverts their Judicial outlook. The Magistrates are the normal custodians of the general administration of criminal justice and it is they who normally decide and pass judgments on the acts and conduct of the police. It is not enough to say, therefore, that the Magistrate acting as a witness in a particular case does not himself try that case. This practice is all the more indefensible here specially when there is no seperation of the executive from the judiciary.
The basic merit of the administration of criminal justice in the State lies in the face that the person arrested by the police is entitled to come before an independent and impartial Magistrate who is expected to deal with the case, without the Magistrate himself being in any way a partisan or a witness to police activities.
There is another danger and that is the Magistrates are put un the unenviable and embarrassing position, of having to give evidence as a witness and then being disbelieved. That in not the way to secure respect for the Magistracy charged with the administration of justice. In my judgment this is a practice which is unfair to the accused and unfair to the Magistrate.
It is also unfair to the police. Because charged with the high responsibility and duty of performing a great and essential public service of this State the police can not afford to run the risk of opprobrium, even if unfounded, that they have enlisted the Magistrate in their cause. That risk in too great and involves forgetting public respect and confidence…….” [ Rao Shiv Bahadur Singh and another States of VindhYA PRADESH AIR 1954 SC 322 : (1954) SCR 1098 : (1954) CriLJ SC 910 ]