Directions
Furnishing copies
11) The amici pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208, Cr. PC, the magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under the Cr.P.C. for their production during the trial, in the interests of justice. It is directed accordingly; the draft rules have been accordingly modified. [Rule 4(i)].
Modification of Bipin Shantilal Panchal vs. State of Gujarat
Arguments to modify Bipin Shantilal Panchal
12) It was pointed out by learned amici that the practice adopted predominantly in all trials is guided by the decision of this court in Bipin Shantilal Panchal v. State of Gujarat [(2001) 3 SCC 1] with respect to objections regarding questions to be put to witnesses. This court had termed the practice of deciding the objections, immediately as “archaic” and indicated what it felt was an appropriate course:
“It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.
When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.”
13) It was argued by amici that the procedure, whereby the courts record answers to all questions, regardless of objections, leads to prolonged and lengthy cross examination, and more often than not, irrelevant facts having no bearing on the charge or the role of the accused, are brought on record, which often result in great prejudice. It is pointed out that due to the practice mandated in Bipin Shantilal Panchal (supra), such material not only enters the record, but even causes prejudice, which is greatly multiplied when the appellate court has to decide the issue. Frequently, given that trials are prolonged, the trial courts do not decide upon these objections at the final stage, as neither counsel addresses arguments. Therefore, it is submitted that the rule in Bipin Shantilal Panchal (supra) requires reconsideration.
14) During a trial, in terms of Section 132, every witness is bound to answer the questions she or he is asked; however, that is subject to the caveat that he or she is entitled to claim silence, if the answers incriminate him or her, by virtue of Article 20 (3) of the Constitution. Every judge who presides over a criminal trial, has the authority and duty to decide on the validity or relevance of questions asked of witnesses. This is to be found in Section 148 Cr. PC, which reads as follows:
“148. Court to decide when question shall be asked and when witness compelled to answer. –– If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it.
In exercising its discretion, the Court shall have regard to the following considerations: ––
(1) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
(2) such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
(3) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence;
(4) the Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference that the answer if given would be unfavourable”
Bipin Shantilal Panchal modified
15) Apart from Section 148, there are other provisions of the Evidence Act (Sections 149-154) which define the ground rules for cross examination. During questioning, no doubt, the counsel for the party seeking cross examination has considerable leeway; cross examination is not confined to matters in issue, but extends to all relevant facts. However, if the court is not empowered to rule, during the proceeding, whether a line of questioning is relevant, the danger lies in irrelevant, vague and speculative answers entering the record. Further, based on the answers to what (subsequently turn out to be irrelevant, vague or otherwise impermissible questions) more questions might be asked and answered. If this process were to be repeated in case of most witnesses, the record would be cluttered with a jumble of irrelevant details, which at best can be distracting, and at worst, prejudicial to the accused. Therefore, this court is of opinion that the view in Bipin Shantilal Panchal should not be considered as binding. The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness. This will result in decluttering the record, and, what is more, also have a salutary effect of preventing frivolous objections. In given cases, if the court is of the opinion that repeated objections have been taken, the remedy of costs, depending on the nature of obstruction, and the proclivity of the line of questioning, may be resorted to. Accordingly, the practice mandated in Bipin Shantilal Panchal shall stand modified in the above terms.
Preliminary case management hearing after framing of charge
17) This court is of the opinion that the courts in all criminal trials should, at the beginning of the trial, i.e. after summoning of the accused, and framing of charges, hold a preliminary case management hearing. This hearing may take place immediately after the framing of the charge. In this hearing, the court should consider the total number of witnesses, and classify them as eyewitness, material witness, formal witness (who would be asked to produce documents, etc) and experts. At that stage, the court should consider whether the parties are in a position to admit any document (including report of experts, or any document that may be produced by the accused, or relied on by her or him). If so, the exercise of admission/denial may be carried out under Section 294, Cr. PC, for which a specific date may be fixed. The schedule of recording of witnesses should then be fixed, by giving consecutive dates. Each date so fixed, should be scheduled for a specific number of witnesses. However, the concerned witnesses may be bound down to appear for 2-3 consecutive dates, in case their depositions are not concluded. Also, in case any witness does not appear, or cannot be examined, the court shall indicate a fixed date for such purpose. The recording of deposition of witnesses shall then be taken up, after the scheduling exercise is complete. This court has appropriately carried out necessary amendments to the Draft Rules.
Directions to the Hon’ble High Courts to frame Criminal Rules of Practice based on this judgment
19) The court is of the opinion that the Draft Rules of Criminal Practice, 2021, (which are annexed to the present order, and shall be read as part of it) should be hereby finalized in terms of the above discussion. The following directions are hereby issued:
(a) All High Courts shall take expeditious steps to incorporate the said Draft Rules, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months from today. If the state government’s co-operation is necessary in this regard, the approval of the concerned department or departments, and the formal notification of the said Draft Rules, shall be made within the said period of six months.
(b) The state governments, as well as the Union of India (in relation to investigating agencies in its control) shall carry out consequential amendments to their police and other manuals, within six months from today. This direction applies, specifically in respect of Draft Rules 1-3. The appropriate forms and guidelines shall be brought into force, and all agencies instructed accordingly, within six months from today.
(b) The state governments, as well as the Union of India (in relation to investigating agencies in its control) shall carry out consequential amendments to their police and other manuals, within six months from today. This direction applies, specifically in respect of Draft Rules 1-3. The appropriate forms and guidelines shall be brought into force, and all agencies instructed accordingly, within six months from today.
21) The Suo motu proceeding is disposed of in terms of the above directions.
DRAFT CRIMINAL RULES OF PRACTICE, 2021
Supply of Documents
4) SUPPLY OF DOCUMENTS UNDER SECTIONS 173, 207 and 208 Cr.PC
i. Every Accused shall be supplied with statements of witness recorded under Sections 161 and 164 Cr.PC and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer (I.O) in accordance with Sections 207 and 208, Cr. PC.
Explanation: The list of statements, documents, material objects and exhibits shall specify statements, documents, material objects and exhibits that are not relied upon by the Investigating Officer.
Chapter III
Trial: Recording of evidence: procedure
6) RECORDING OF EVIDENCE: PROCEDURE
i. The depositions of witnesses shall be recorded, in typed format, if possible. The record of evidence shall be prepared on computers, if available, in the Court on the dictation of the Presiding Officer.
Provided that in case the language of deposition is to be recorded in a language other than English or the language of the State, the Presiding Officer shall simultaneously translate the deposition either himself or through a competent translator into English.
ii. The deposition shall be recorded in the language of the witness and in English when translated as provided in Clause 6 (i).
iii. The depositions shall without exception be read over by the Presiding officer in Court. Hard copy of the testimony so recorded duly signed to be a true copy by the Presiding Officer/court officer shall be made available free of cost against receipt to the accused or an advocate representing the accused, to the witness and the prosecutor on the date of recording.
iv. A translator shall be made available in each Court and Presiding Officers shall be trained in the local languages, on the request of the Presiding Officer.
v. The Presiding Officers shall not record evidence in more than one case at the same time.
Trial: Recording of evidence: Format of witnesses
7) RECORDING OF EVIDENCE: FORMAT OF WITNESSES
i. The deposition of each witness shall be recorded dividing it into separate paragraphs assigning paragraph numbers.
ii. Prosecution witnesses shall be numbered as PW-1, PW-2 etc, in seriatim. Similarly, defence witnesses shall be numbered as DW-1, DW-2, etc., in seriatim. The Court witnesses shall be numbered as CW-1, CW-2, etc, in seriatim.
iii. The record of depositions shall indicate the date of the chief examination, the cross examination and re-examination.
iv. The Presiding Officers shall wherever necessary record the deposition in question and answer format. v. Objections by either the prosecution or the defence counsel shall be taken note of and reflected in the evidence and decided immediately, in accordance with law, or, at the discretion of the learned Judge, at the end of the deposition of the witness in question.
vi. The name and number of the witness shall be clearly stated on any subsequent date, if the evidence is not concluded on the date on which it begins.
Trial: Marking of statements: under sections 161 and 164 crpc
10) REFERENCES TO STATEMENTS UNDER SECTION 161 AND 164 CRPC
i. During cross examination, the relevant portion of the statements recorded under Section 161 Cr.PC used for contradicting the respective witness shall be extracted. If it is not possible to extract the relevant part as aforesaid, the Presiding Officer, in his discretion, shall indicate specifically the opening and closing words of such relevant portion, while recording the deposition, through distinct marking.
ii. In such cases, where the relevant portion is not extracted, the portions only shall be distinctly marked as prosecution or defence exhibit as the case may be, so that other inadmissible portions of the evidence are not part of the record.
iii. Incases, where the relevant portion is not extracted, the admissible portion shall be distinctly marked as prosecution or defence exhibit as the case may be.
iv. The aforesaid rule applicable to recording of the statements under Section 161 shall mutatis mutandis apply to statements recorded under Section 164 of the Cr.PC, whenever such portions of prior statements of living persons are used for contradiction/corroboration.
v. Omnibus marking of the entire statement under S. 161 and 164 Cr.P.C shall not be done.
Trial: Marking of statement: confession statement
11) MARKING OF CONFESSIONAL STATEMENTS
The Presiding Officers shall ensure that only admissible portion of Section 8 or Section 27 Indian Evidence Act, 1872 is marked and such portion alone is extracted on a separate sheet and marked and given an exhibit number.
Author’s note:
It is pertinent to note that the Madras High court after drafting the Criminal Rules of Practice, 2019 has made recommended amendments based on this judgment and upon such recommendation the State Government of Tamil Nadu published the same as amendment to Criminal Rules of Practice, 2019 in the following dates:
1) JUDICIAL NOTIFICATION, THE HIGH COURT OF JUDICATURE AT MADRAS, Amendments to the Criminal Rules of Practice, 2019, (Roc. No. 48768-A/2017/F1) dated: CHENNAI, WEDNESDAY, AUGUST 24, 2022 Aavani 8, Subakiruthu, Thiruvalluvar Aandu–2053 [annexure]: Amendments to Criminal Rules of Practice, 2019 regarding marking of previous statements 34_III_2 aug
In the said Rules, in Rule 42, after sub-rule (2), the following sub-rules shall be added, namely:-
“(3) The deposition of witnesses shall be recorded in typed format, if possible. The record of evidence shall be prepared on computers, if available in the Court, on the dictation of the Presiding Officer:Provided that, in case, the language of deposition is to be recorded in a language other than English or the language of the State, the Presiding Officer shall simultaneously translate the deposition either himself or through a competent translator into English.
(4) The deposition shall be recorded in the language of the witness and in English, when translated as provided in sub-rule (3).
(5) A translator shall be made available in each Court and the Presiding Officers shall be trained in the local language, on the request of the Presiding Officers.
(6) The Presiding Officers shall not record evidence in more than one case at the same time.
(7) Objections by either the prosecution or the defence counsel shall be taken note of and reflected in the evidence and decided immediately, in accordance with law or at the discretion of the learned Judge, at the end of the deposition of the witness in question.
(8) During cross-examination, the relevant portion of the statements recorded under Section 161 of the Code used for contradicting the respective witness shall be extracted. If it is not possible to extract the relevant part as aforesaid, the Presiding Officer, in his discretion, shall indicate specifically the opening and closing words of such relevant portion, while recording the deposition, through distinct marking.
(9) In such cases, where the relevant portion is not extracted, such portions shall be distinctly marked as prosecution or defence exhibit, as the case may be, so that other inadmissible portions of the evidence are not part of the record.
(10) In cases, where the relevant portion is not extracted, the admissible portion shall be distinctly marked as prosecution or defence exhibit, as the case may be.
(11) The rule applicable to recording of the statements under Section 161 of the Code shall also mutatis mutandis apply to the statements recorded under Section 164 of the Code, whenever such portions of prior statements of living persons are used for contradiction or corroboration.
(12) Omnibus marking of the entire statement under Sections 161 and 164 of the Code shall not be done.
(13) The Presiding Officers shall ensure that only admissible portion of Section 8 or Section 27 of the Indian Evidence Act, 1872 (Act 1 of 1872) is marked and such portion alone is extracted on a separate sheet and marked and given an exhibit number.”.
- JUDICIAL NOTIFICATION, THE HIGH COURT OF JUDICATURE AT MADRAS, Amendments to the Criminal Rules of Practice, 2019 (R.O.C.No. 48768-A/2017/F1) dated: CHENNAI, WEDNESDAY, MARCH 23, 2022 Panguni 9, Pilava, Thiruvalluvar Aandu–2053 [annexure]: https://www.hcmadras.tn.nic.in/12_III_2%20(2).pdf
This judgment is a must to carry by all Criminal Trial practitioners in all their cases.
Parties
IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS ….PETITIONER(S) VERSUS THE STATE OF ANDHRA PRADESH & ORS – SUO MOTO WRIT (CRL) NO.(S) 1/2017 – April 20, 2021.
URL: https://main.sci.gov.in/supremecourt/2017/9999/9999_2017_31_1504_27750_Judgement_20-Apr-2021.pdf
