DEBABRATA MOOKERJEE, J. ( 1 ) UPON a jury's unanimous verdict these three appellants have been convicted of murder and sentenced to imprisonment for life. ( 2 ) THE case for the prosecution briefly stated was that on the 13th of May, 1960 Jagadish Singh was knived by appellant Matia Goala while the other appellants, Ninia and Nripatia held him down. Jagadish Singh had come to Calcutta from upcountry to collect his dues and was staying at the time at 10/1, Mirpara Lane, Howrah. At about the time of the occurrence one Kashiram had come to make payment and was resting at the place on a cot when the incident occurred. Kashiram witnessed the assault and a Municipal employee Provas by name who happened to have been passing that way, heard certain groans, heard Kashiram shout and saw the appellants getting away. Appellant Nripatia was soon overpowered by Provas and secured. The injured Jagadish Singh tottered out of the room holding in his abdomen the knife with which he had been injured. A trail of blood led to a neighbouring place where appellant Matia was secured with a bleeding injury upon his leg. The appellant Nunia was not found and he surrendered later in Court. ( 3 ) UPON a hurried telephonic information the police arrived and an investigation commenced. Eventually a charge sheet was submitted and after the usual preliminary enquiry the appellants were committed for trial before the Court of Session upon a charge of murder. They pleaded not guilty and suggested that they had been implicated out of suspicion. ( 4 ) IN view of the order we propose to make, it becomes unnecessary to deal with the rival contentions of the appellants and of the State affecting the merits of the appeal. In our opinion it would be sufficient to indicate the reasons for interfering with the jury's verdict and the resultant order of conviction and sentence. ( 5 ) IT appears that the appellants were represented by pleaders led by an advocate Shri Jyotish Chandra Mitter. The trial Judge's proceedings show that after the close of evidence and before the examination of the accused under Section 342 Cr. P. C. the learned Judge decided to call the Defence Advocate, as a Court witness. ( 5 ) IT appears that the appellants were represented by pleaders led by an advocate Shri Jyotish Chandra Mitter. The trial Judge's proceedings show that after the close of evidence and before the examination of the accused under Section 342 Cr. P. C. the learned Judge decided to call the Defence Advocate, as a Court witness. The circumstances in which that course was taken appear to be that there were materials to indicate that the appellant Nunia Goala used to work in his house on a part-time basis. Nunia Goala was an employee under the Municipality. When after the murder he was looked for, he was not found. There was some evidence to suggest that efforts to trace him proved unavailing. In this state of the record the learned Judge felt that in the interests of justice he should call upon the Defence Advocate to give evidence in the case. The learned Judge thus took action under Section 540 of the Code of Criminal Procedure. That section, as is well known, gives wide powers, to the Court to require any person to give evidence at any stage of any enquiry, trial or other proceeding. Obviously, the power is given to the Court in order that it might do complete justice between party and party. Indeed, the section makes such examination imperative if the Court considers the evidence to be essential to a just decision of the case. The trial Judge presumably felt that interests of justice required that the Jury should hear evidence as to whether Nunia Goala was at all present in town on the date of the occurrence and immediately thereafter. The proceedings do not however clearly indicate whether the learned Judge intended thereafter to relieve the Advocate of his responsibility of defending the appellants who had been charged for murder. The trial was nearing completion and it was by no means easy to take over, at that stage for a junior assisting the senior Advocate, thus in a sense disabled to continue in the appellants' defence. Fear was expressed that the defence would suffer from inadequate representation unless the Advocate concerned was permitted to address the jury. A prayer was accordingly made on the appellants' behalf that the Court might, in spite of everything that had happened, grant the Advocate permission to continue in the case. The prayer was allowed and the permission granted. Fear was expressed that the defence would suffer from inadequate representation unless the Advocate concerned was permitted to address the jury. A prayer was accordingly made on the appellants' behalf that the Court might, in spite of everything that had happened, grant the Advocate permission to continue in the case. The prayer was allowed and the permission granted. ( 6 ) THE situation thus created was not easy of solution. The evidence, the Advocate gave was directly relevant on the question of Nunia's presence in town on the date of the occurrence and immediately thereafter. He stated that three or four days after the occurrence Nunia left his place but introduced a qualification by adding that he might have stayed with him during those three or four days and he had no definite recollection if Nunia was at his house on the fateful day. He knew however on the 14th, the day following the day of occurrence that Nunia was wanted in connection with the case. He had already appeared on behalf of the other appellants on the 14th and when thereafter he met Nunia he had him surrendered in Court. ( 7 ) BEING a Court witness the Advocate was liable to be cross-examined by the prosecution as well as by the defence. Thus his evidence was tested even by his own clients. And when it came to summing up, the learned Judge commented on his evidence as he was required to do. The comments had to be impartial, and could not therefore be altogether complementary; they included the advice to the jury to sift the evidence, probe into its truth, weight it and decide if it was partisan in the appellant's favour. ( 8 ) DIVERSE considerations arose. It was perhaps desirable that when the Advocate had known or had reason to believe that by reason of possession of private knowledge of facts relevant to the case, he was a likely witness, he should have declined a professional engagement. That is however an aspect of professional ethics which need not detain us. But no one can deny the Court the power to investigate the truth however unpleasant the consequences. At the same time the men in the dock could not be forgotten for whom the issue of the trial was the issue of life and death. That is however an aspect of professional ethics which need not detain us. But no one can deny the Court the power to investigate the truth however unpleasant the consequences. At the same time the men in the dock could not be forgotten for whom the issue of the trial was the issue of life and death. ( 9 ) IF justice demanded disclosure of the full facts within the knowledge of all concerned, it equally demanded elimination of all possibility of prejudice to the men charged for a capital offence. The Advocate's evidence was competent and even compellable. There was no privilege against the Court. But the embarrassment was inevitable, the prejudice inescapable. To plead and to prove, to act as counsel and witness in the same case, even if permissible in any circumstance, was not an easy task. And the trial Judge enabled the Advocate to play a dual role and combine the two functions by allowing the defence prayer and permitting the Advocate to address the jury. It is here, we think, that the learned Judge misdirected himself. The Court had the right to obtain his evidence but it failed in its duty to safeguard the interests of the accused. It mattered little if that course was taken on the prayer of the accused themselves. The least the trial Judge could have done was to adjourn the trial to enable the accused to obtain the services of one who could plead on their behalf form his place at the bar, unhampered and unembarrassed by personal considerations and with all the weight of authority as the Court's own officer to aid justice. We cannot avoid the feeling that the Advocate concerned found himself in the unenviable position of having to plead with the jury on evidence which included his own. Indeed, the step-down from the witness box to his place at the bar was not an easy translation. His exhortation to the jury conceivably included a plea to accept him as a witness and then a plea to accept him as counsel and agree to his version. And if the jury did not think much of his evidence, they were not likely to think much of his address, and in the process it was the defence case which was likely to have become a casualty. It was not Nunia alone who was affected. And if the jury did not think much of his evidence, they were not likely to think much of his address, and in the process it was the defence case which was likely to have become a casualty. It was not Nunia alone who was affected. All the three appellants were represented by the Advocate concerned. The prejudice was likely to have affected them all. ( 10 ) WE have no doubt that by allowing the prayer of the accused the learned Judge only desired to do justice; but the course adopted produced a situation fraught with the danger of defeating justice. The appellants do not seem to have had a fair trial and the result of such trial cannot survive the appeal. We accordingly allow the appeal, set aside the conviction and sentence and direct the appellants to be retired in accordance with law. Appeal allowed