A - Mode of Taking and Recording Evidence A - Mode of Taking and Recording Evidence 272. Language of Courts :-
272. Language of Courts :- The State Government may determine what shall The State Government may determine what shall be, for purposes of be, for purposes of this Code, the language of each Court within the State other than the High Court.
this Code, the language of each Court within the State other than the High Court.
Language of Courts.
Language of Courts.
—
—
TheThe Constitution provides that until Parliament by law otherwiseConstitution provides that until Parliament by law otherwise provides, all proceedings in the Supreme Court and in every High Court shall be in English provides, all proceedings in the Supreme Court and in every High Court shall be in Englishlanguage. However, the Governor of a State may, with the previous sanction of the President, language. However, the Governor of a State may, with the previous sanction of the President, authorise
authorise the use of the Hindi language, the use of the Hindi language, or any other language used or any other language used for any official purposes of for any official purposes of the State, in proceedings in the
the State, in proceedings in the High Court having its principal seat in that High Court having its principal seat in that State; but this ruleState; but this rule shall not apply to any judgment, decree or order passed or made by such High Court.
shall not apply to any judgment, decree or order passed or made by such High Court.
The State Government may determine what shall be, for purpose of this Code, the language of The State Government may determine what shall be, for purpose of this Code, the language of each court within the State other than the High Court [S. 272. This does not however mean that a each court within the State other than the High Court [S. 272. This does not however mean that a witness cannot give his evidence in a language other than the court language; nor does it mean witness cannot give his evidence in a language other than the court language; nor does it mean that the accused person cann
that the accused person cannot give his statement in a language dot give his statement in a language different from the courtifferent from the court
language. In such cases where the language used by witness or the accused person is one other language. In such cases where the language used by witness or the accused person is one other than the court language, procedures have been provided by Ss. 277 and 281 for the recording of than the court language, procedures have been provided by Ss. 277 and 281 for the recording of such evidence and statement.
such evidence and statement.
273. Evidence to be taken in presence of accused:- Except as otherwise expressly provided, all 273. Evidence to be taken in presence of accused:- Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal
accused, or, when his personal attendance is dispensed with, in presence of attendance is dispensed with, in presence of his pleader.his pleader.
This
This section makes it obligatory that evidence for the prosecsection makes it obligatory that evidence for the prosecution and ution and defence should be takendefence should be taken in the presence of the acc
in the presence of the accused. A trial is vitiated by failure to examine the used. A trial is vitiated by failure to examine the witnesses in thewitnesses in the
presence of the accused.‟ Mere cross examination in the presence of the accused is not sufficient. presence of the accused.‟ Mere cross examination in the presence of the accused is not sufficient.
Supreme Court in
Supreme Court in Talab Haji Hussain ,Talab Haji Hussain , “if a fair trial is the main object“if a fair trial is the main object of the criminalof the criminal procedure, any threat to the continuance of a fair trial must be immediately arrested. If an procedure, any threat to the continuance of a fair trial must be immediately arrested. If an
accused person by his own
accused person by his own conduct, puts the fair trial into jeopardy, it would conduct, puts the fair trial into jeopardy, it would be the primary andbe the primary and paramount duty of criminal Courts to ensure that the risk to the fair tri
paramount duty of criminal Courts to ensure that the risk to the fair trial is removed and criminalal is removed and criminal Courts are allowed to proceed with the trial smoothl
Courts are allowed to proceed with the trial smoothl y and without any interruption or y and without any interruption or obstruction.
obstruction.
The rule enacted in this section
The rule enacted in this section makes it imperative that all evidence in amakes it imperative that all evidence in an inquiry and trial shalln inquiry and trial shall be taken in the presence of the accused. That being so it is not sufficie
be taken in the presence of the accused. That being so it is not sufficientntunder the section to readunder the section to read out to a witness his previous deposition in a
out to a witness his previous deposition in a former case and ask him if the statements madeformer case and ask him if the statements made therein are true nor is it permissible to consider at all
therein are true nor is it permissible to consider at all the evidence given in the evidence given in one case for theone case for the purpose of reaching conclusions in the other case. The two cases should be tried independently purpose of reaching conclusions in the other case. The two cases should be tried independently
and determined on evidence recorded in each case. If this is not done the vitated and s. and determined on evidence recorded in each case. If this is not done the vitated and s. 465465
cannot cure it. Even consent by accused or hi
cannot cure it. Even consent by accused or his counsel cannot s counsel cannot validate such proceedings. Eachvalidate such proceedings. Each case must be decided on the evidence recorded
case must be decided on the evidence recorded in in it; evidence recorded in another case it; evidence recorded in another case cannotcannot be taken into account in arriving at the decision.
be taken into account in arriving at the decision. 1. „Personal attendance is
1. „Personal attendance isdispenseddispensed with‟.— with‟.— Sessions Judge has power to dispense with theSessions Judge has power to dispense with the personal attendance of an accused and to allow him to appear
personal attendance of an accused and to allow him to appear by pleader during the Sessionsby pleader during the Sessions trial. Such a power may properly be favour of
trial. Such a power may properly be favour of pardanashin pardanashin ladies, or on ground of ill-health.ladies, or on ground of ill-health. State of Maharashtra v. Dr. Praful B. Desai,
State of Maharashtra v. Dr. Praful B. Desai, 2003 Cr 2003 Cr 2033 (SC) 2033 (SC) :-:- Since the taken presence inSince the taken presence in Section 273 of Cr PC does not mean actual physical presence of accused in Court hence evidence Section 273 of Cr PC does not mean actual physical presence of accused in Court hence evidence can be recorded in presence of pleader.
can be recorded in presence of pleader.
Recording of evidence by video conferencing.
Recording of evidence by video conferencing. — — The S.C. held that recording of evidence byThe S.C. held that recording of evidence by confrencing is permissible . The Evidence so recorded
confrencing is permissible . The Evidence so recorded would fully meet the requirement of sec.would fully meet the requirement of sec. 273.
273. Recording of evidence by video conferencing in prRecording of evidence by video conferencing in presence of accused or his pleader wouldesence of accused or his pleader would be as per procedure establish by law.
be as per procedure establish by law.
274. Record in summons-cases and inquiries:-(1) In all summons-cases tried before a Ma
274. Record in summons-cases and inquiries:-(1) In all summons-cases tried before a Ma gistrate,gistrate, in all inquiries under Sections 145
in all inquiries under Sections 145 to 148 (both inclusive), and in all proceto 148 (both inclusive), and in all proceedings under Sectionedings under Section 446 otherwise than in the cou
446 otherwise than in the course of a trial, the Magistrate shall, as the examination rse of a trial, the Magistrate shall, as the examination of eachof each witness proceeds, make a memorandum of the substance of his evidence in the language of the witness proceeds, make a memorandum of the substance of his evidence in the language of the Court:
Court:
Provided that if the Magistrate is unable to make
Provided that if the Magistrate is unable to make such memorandum himself, he shall, after such memorandum himself, he shall, after recording the reason of his inability, cause such
recording the reason of his inability, cause such memorandum to be made in memorandum to be made in writing or from hiswriting or from his dictation in open Court.
dictation in open Court.
(2) Such memorandum shall be signed b
(2) Such memorandum shall be signed b y the Magistrate and shall form part of the record.y the Magistrate and shall form part of the record.
COMMENT.
COMMENT.
—
—
This section enjoins upon a Magistrate to make a substance evidence of aThis section enjoins upon a Magistrate to make a substance evidence of a witnesswitness
(1) in all summons-cases, (1) in all summons-cases, (2) in
(2) in all enquiries all enquiries under ss. 145 under ss. 145 to 148 to 148 both inclusive both inclusive (disputes regarding (disputes regarding immovableimmovable properties) and
properties) and
(3) in all proceeding under s. 446 regarding forfeiture of a bond. Such substance of evidence (3) in all proceeding under s. 446 regarding forfeiture of a bond. Such substance of evidence shall be
shall be taken down in the language of the Courttaken down in the language of the Court. If the Magistrat. If the Magistrate is unable to make suche is unable to make such memorandum himself, he can cause such
memorandum himself, he can cause such memorandum to be made in memorandum to be made in writing or from hiswriting or from his
dictation in open Court. Such memorandum must be signed by the Magistrate and shall form part dictation in open Court. Such memorandum must be signed by the Magistrate and shall form part of the record.
275. Record in warrant-cases:-(1) In all warrant-cases tried before a Magistrate, the eviden
275. Record in warrant-cases:-(1) In all warrant-cases tried before a Magistrate, the eviden ce of ce of each witness shall, as his examination proceeds, be
each witness shall, as his examination proceeds, be taken down in writing either by thetaken down in writing either by the Magistrate himself or by his dictation in open C
Magistrate himself or by his dictation in open Court or, where he is unable to ourt or, where he is unable to do so owing to ado so owing to a physical or other incapacity, under his direction and superintendence, by an officer of the Court physical or other incapacity, under his direction and superintendence, by an officer of the Court
appointed by him in this behalf. appointed by him in this behalf.
(2) Where the Magistrate causes the evidence to
(2) Where the Magistrate causes the evidence to he taken down, he he taken down, he shall record a certificate thatshall record a certificate that the evidence could not
the evidence could not be taken down bbe taken down by himself for the reasons referred to in sub-section (1).y himself for the reasons referred to in sub-section (1). (3) Such evidence shall ordinarily be taken
(3) Such evidence shall ordinarily be taken down in the form of a ndown in the form of a narrative; but the Magistratearrative; but the Magistrate may, in his discretion take down or cause to be taken down, any part of such evidence in the may, in his discretion take down or cause to be taken down, any part of such evidence in the form of question and answer.
form of question and answer. (4) The evidence so taken
(4) The evidence so taken down shall be signed by the down shall be signed by the Magistrate and shall form part of theMagistrate and shall form part of the record.
record.
COMMENT.
COMMENT.
—
—
This section lays down This section lays down the manner in which evidence is to be the manner in which evidence is to be recorded inrecorded in warrant-cases tried before a Magistrate. If the evidence is not taken dwarrant-cases tried before a Magistrate. If the evidence is not taken d own by the Magistrate or byown by the Magistrate or by his dictation in Court, it casts a duty on the Magistrate to s
his dictation in Court, it casts a duty on the Magistrate to state tate reason as to why it was takenreason as to why it was taken down by an officer of the Court and
down by an officer of the Court and he himself he himself did not record the evidence. The evidence shoulddid not record the evidence. The evidence should be in the form of a narrative but discretion is given to the Magistra
be in the form of a narrative but discretion is given to the Magistrate to record the evidence in thete to record the evidence in the form of questions and answers.
form of questions and answers. Evidence of each witness shall be
Evidence of each witness shall be taken down to writing‟.— taken down to writing‟.— In each deposition should appear theIn each deposition should appear the name of the person examined, the name of his or her father and if a married woman, the name of name of the person examined, the name of his or her father and if a married woman, the name of her husband, the religion, caste,profes
her husband, the religion, caste,profession sion and age of the party or wand age of the party or witness, and the village initness, and the village in which he or she resides. The
which he or she resides. The proper way of recording evidence proper way of recording evidence is to take it down in is to take it down in the firstthe first person exactly as spoken by the witness.‟ The Judge is not bound to make a verbatim record of person exactly as spoken by the witness.‟ The Judge is not bound to make a verbatim record of
any particular question and answer. I
any particular question and answer. If either side request f either side request him to do him to do so, the Judge may in hisso, the Judge may in his discreti
discretion act accordingly. The word “witness” includes complainant.on act accordingly. The word “witness” includes complainant. 276. Record in trial before Court o
276. Record in trial before Court of Session:-(1) In all trials before a Court of Session, thef Session:-(1) In all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in o
the presiding Judge himself or by his dictation in o pen Court, or under his direction andpen Court, or under his direction and superintendence, by an officer of the C
superintendence, by an officer of the Court appointed by him in this behourt appointed by him in this behalf.alf.
(2) Such evidence shall ordinarily be taken down in the form of a narrative, but the presiding (2) Such evidence shall ordinarily be taken down in the form of a narrative, but the presiding Judge may, in his discretion, take down, or cause to be taken down, any part of such evidence in Judge may, in his discretion, take down, or cause to be taken down, any part of such evidence in the form of question and answer.
the form of question and answer. (3) The evidence so taken
(3) The evidence so taken down shall be signed by the down shall be signed by the presiding Judge and shall form part of thepresiding Judge and shall form part of the record.
COMMENT.
COMMENT. — — Recording of evidence trials before the Session case Recording of evidence trials before the Session case should be in the form of should be in the form of question and answer; the Judge, however,has
question and answer; the Judge, however,has discretion to discretion to take down or cause it to be take down or cause it to be takentaken down in the form of
down in the form of a narrative. a narrative. Where the Sessions Judge convicted Where the Sessions Judge convicted a person and awardeda person and awarded punishment without hearing him on the quantum of sentence violating s. 276 (2), Cr. P.C. as punishment without hearing him on the quantum of sentence violating s. 276 (2), Cr. P.C. as
amended sentence was set aside.‟ amended sentence was set aside.‟
277. Language of record of evidence:- In every case where evidence is taken down under 277. Language of record of evidence:- In every case where evidence is taken down under Sections 275 and
Sections 275 and
276:-(a) if the witness gives evidence in the lan
(a) if the witness gives evidence in the language of the Court, it shall bguage of the Court, it shall be taken down in thate taken down in that language;
language;
(b) if he gives evidence in any other language, it may, if practicable, be taken down in that (b) if he gives evidence in any other language, it may, if practicable, be taken down in that
language, and if it is not practicable to do so, a true translation of the evidence in the language of language, and if it is not practicable to do so, a true translation of the evidence in the language of the Court shall be prepared as the
the Court shall be prepared as the examination of the witness proceeds, signed bexamination of the witness proceeds, signed by the Magistratey the Magistrate or presiding Judge, and shall form part of the
or presiding Judge, and shall form part of the record;record;
(c) where under Clause (b) evidence is taken down in a language other than the language of the (c) where under Clause (b) evidence is taken down in a language other than the language of the Court, a true transaction thereof in the langua
Court, a true transaction thereof in the language of the Court shall be prepared ge of the Court shall be prepared as soon asas soon as practicable, signed by the Magistrate or presiding Judge, and shall form part of the record: practicable, signed by the Magistrate or presiding Judge, and shall form part of the record:
Provided that when under clause (b) evidence is taken down in English and a translation thereof Provided that when under clause (b) evidence is taken down in English and a translation thereof in the language of the Co
in the language of the Court is not required by any ourt is not required by any of the parties, the Court may dispense withf the parties, the Court may dispense with such translation.
such translation.
COMMENT.
COMMENT.
—
—
AA witness may witness may give evidence eigive evidence either in tther in the he the language of the language of the court the court or or anyany other language. The section provides forother language. The section provides for different contingencies which may different contingencies which may arise in the event of arise in the event of the witness giving evidence in
the witness giving evidence in the language of the court or the language of the court or any other language. The proper andany other language. The proper and convenient way for recording evidence is to take it down in the first person exactly as spoken by convenient way for recording evidence is to take it down in the first person exactly as spoken by the witness.
the witness.
278. Procedure in regard to such evidence when completed.--(1) As the evidence of each witness 278. Procedure in regard to such evidence when completed.--(1) As the evidence of each witness taken under Section 275 or Section 276 is completed, it shall be read over to him in the presence taken under Section 275 or Section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if
of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.
necessary, be corrected.
(2) If the witness denies the correctness of any pa
(2) If the witness denies the correctness of any pa rt of the evidence when thrt of the evidence when the same is read over toe same is read over to him, the Magistrate or presiding Judge may, instead of cor
him, the Magistrate or presiding Judge may, instead of cor recting the evidence, make recting the evidence, make aa memorandum thereon of the objection
memorandum thereon of the objection made to it by the witness, and made to it by the witness, and shall add such remarks asshall add such remarks as he thinks necessary.
he thinks necessary.
(3) If the record of the evidence
and the witness does not und
and the witness does not understand that language, the record shall be erstand that language, the record shall be interpreted to him in theinterpreted to him in the language in which it was given, or in a language which he understands.
language in which it was given, or in a language which he understands.
COMMENT.
COMMENT.
—
—
This section requires that the evidence of witness when This section requires that the evidence of witness when completed should becompleted should be read over to him in the presence of the accused or his pleader. The evidence should be read after read over to him in the presence of the accused or his pleader. The evidence should be read after it is completed and not atit is completed and not at the end of the day the end of the day after all the witnesses have beenafter all the witnesses have been examined. When theexamined. When the correction slips were filed
correction slips were filed much after the evidence of the witness was recorded and the slipsmuch after the evidence of the witness was recorded and the slips were unsigend the refusal by the trial judge to effect the changes was held to be correct .The were unsigend the refusal by the trial judge to effect the changes was held to be correct .The reading of the deposition to a
reading of the deposition to a witness himself is not sufficient. The object of reading over awitness himself is not sufficient. The object of reading over a deposition to a witness is to obtain an
deposition to a witness is to obtain an accurate record from the witness of what he accurate record from the witness of what he really meansreally means to say, and to give him an opportunity
to say, and to give him an opportunity
279. Interpretation of evidence to accused or his pleader :-(1) Whenever any evidence is given in 279. Interpretation of evidence to accused or his pleader :-(1) Whenever any evidence is given in a language not understood by the accused, and he is present in Court in person, it shall be
a language not understood by the accused, and he is present in Court in person, it shall be interpreted to him in open Court in a language understood by him.
interpreted to him in open Court in a language understood by him.
(2) If he appears by pleader and the evidence is given in a language other than the language of (2) If he appears by pleader and the evidence is given in a language other than the language of the Court, and not understood by the pleader, it shall be interpreted to such pleader in that the Court, and not understood by the pleader, it shall be interpreted to such pleader in that language.
language.
(3) When documents are put for the
(3) When documents are put for the purpose of formal proof, it shall be in the purpose of formal proof, it shall be in the discretion of thediscretion of the Court to interpret as much thereof as appears n
Court to interpret as much thereof as appears necessary.ecessary.
COMMENT.
COMMENT.
—
—
— — Signs and gestures do not form a language, though loosely they may becalledSigns and gestures do not form a language, though loosely they may becalled the language of the deaf and dumb. Butthe language of the deaf and dumb. But that is not mean by that is not mean by this section. The Supreme Court this section. The Supreme Court hashas held that where the appellant was represented by two eminent advocates who knew both English held that where the appellant was represented by two eminent advocates who knew both English and Tamil, it could not said that any prejudice has been caused to the appellant because he did and Tamil, it could not said that any prejudice has been caused to the appellant because he did not know English or Tamil and
not know English or Tamil and the violation of sub-section (1) of this section was merely anthe violation of sub-section (1) of this section was merely an irregularity.
irregularity.
280. Remarks respecting demeanour of witness:-When a
280. Remarks respecting demeanour of witness:-When a presiding Judge or Magistrate haspresiding Judge or Magistrate has recorded the evidence of
recorded the evidence of a witness, he shall also record such remarks (if ana witness, he shall also record such remarks (if an y) as he thinksy) as he thinks material respecting the demeanour of such witness whilst under examination.
material respecting the demeanour of such witness whilst under examination.
ComeENT.-ComeENT.-
—
—
TheTheobject of this section is to give to object of this section is to give to the appellate Court some aid in the appellate Court some aid in estimatingestimating the value of the evidence recorded by another Court. Athe value of the evidence recorded by another Court. A Judeg may note the demeanour of a w
Judeg may note the demeanour of a witness whilst under eitness whilst under examination, but it is generlly xamination, but it is generlly unsafeunsafe to pronounce an opinion
to pronounce an opinion on the credibility of the witness until the whon the credibility of the witness until the whole of his evidence has beenole of his evidence has been taken. The demeanour of the witness under other circumstances ought not to be taken notice of taken. The demeanour of the witness under other circumstances ought not to be taken notice of by the Judge.
by the Judge.
The demeanour of a witness which
The demeanour of a witness which goes to affect the Court in appreciating goes to affect the Court in appreciating his evidence must behis evidence must be noted down at the proper
about the demeanour of a
about the demeanour of a witness in the course of the judgment, though witness in the course of the judgment, though not illegal, is not fair andnot illegal, is not fair and any such note about the demeanour should be known to the counsel of the parties, who may have any such note about the demeanour should be known to the counsel of the parties, who may have suggestion to make about the o
suggestion to make about the observations and inferences to be drawn therefrom.bservations and inferences to be drawn therefrom.
It has been held by the Supreme court that the remarks representing the demeanour of the witness It has been held by the Supreme court that the remarks representing the demeanour of the witness under s. 280 made in the judgment, though not made either during or at the close of the
under s. 280 made in the judgment, though not made either during or at the close of the examination of the witness by a trial Jud
examination of the witness by a trial Judge, should be given due wge, should be given due weight by the Appellate Courteight by the Appellate Court in the appraisal of the evidence
in the appraisal of the evidence given by such witness. But where the trial Judge given by such witness. But where the trial Judge had nothad not
indicated any person which impelled him to make remarks in the judment, the High Court was indicated any person which impelled him to make remarks in the judment, the High Court was helf right in not paying much
helf right in not paying much attention to the remarks.attention to the remarks.
281. Record of examination of accused :--(1) Whenever the accused is examined by a 281. Record of examination of accused :--(1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the su
Metropolitan Magistrate, the Magistrate shall make a memorandum of the su bstance of thebstance of the examination of the accused in the language of the Court and such memorandum shall be signed examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record.
by the Magistrate and shall form part of the record. (2) Whenever the accused is ex
(2) Whenever the accused is examined by any Magistrate other than a Metropolitan amined by any Magistrate other than a Metropolitan Magistrate,Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him,
every answer given by him, shall be recorded in full by the pshall be recorded in full by the presiding Judge or Magistrate himself residing Judge or Magistrate himself or where he is unable to
or where he is unable to do so owing to a phdo so owing to a ph ysical or other incapacity, under his direction andysical or other incapacity, under his direction and superintendence by an officer of the C
superintendence by an officer of the Court appointed by him in this behalf.ourt appointed by him in this behalf.
(3) The record shall, if practicable, be in the language in which the accused is examined, or if (3) The record shall, if practicable, be in the language in which the accused is examined, or if that is not practicable, in the langua
that is not practicable, in the language of the Court.ge of the Court.
(4) The record shall be shown or read to the accused, or, if he does not understand the language (4) The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in
in which it is written, shall be interpreted to him in a language which he ua language which he understands, and henderstands, and he shall be at liberty to explain or add to his answers.
shall be at liberty to explain or add to his answers. (5) It shall thereafter be signed by the
(5) It shall thereafter be signed by the accused and by the Maaccused and by the Magistrate or presiding Judge, whogistrate or presiding Judge, who shall certify under his own hand that the
shall certify under his own hand that the examination was taken in his presence examination was taken in his presence and hearing andand hearing and that the record contains a full and true account of the statement made by the accused.
that the record contains a full and true account of the statement made by the accused. (6) Nothing in this section shall be deemed to
(6) Nothing in this section shall be deemed to apply to the examination of apply to the examination of an accused person inan accused person in the course of a summary trial.
the course of a summary trial. COMMENT.
COMMENT. — — This section deals with the mode of recording exThis section deals with the mode of recording examination of the accused bamination of the accused by ay a Metropolitan Magistrate and any Magistrate otherthan a metropolitan Magistrate or b
Metropolitan Magistrate and any Magistrate otherthan a metropolitan Magistrate or b y Court of y Court of Session. Whereas the MM
Session. Whereas the MM is required to make a mis required to make a memorandum of the substance of temorandum of the substance of thehe examination of the accused
examination of the accused any other Magistrate or any other Magistrate or the Presiding Judge of the Sessthe Presiding Judge of the Session court ision court is required to record in full the whole of such examination including every question put to him and required to record in full the whole of such examination including every question put to him and the answer given by him.
The examination of an accused
The examination of an accused under this section is subject to the puunder this section is subject to the purpose inferred to in s. 313,rpose inferred to in s. 313, viz., “to enable him to explain any ci
viz., “to enable him to explain any circumstance appearing rcumstance appearing against him and not tob supp1ementagainst him and not tob supp1ement the case for the prosecution against him
the case for the prosecution against him to show that he is guito show that he is guilty.”lty.”
An accused person cannot properly be examined at the commencement of an inquiry or trial, and An accused person cannot properly be examined at the commencement of an inquiry or trial, and before any evidence has been taken, for there is nothing before the Court which he can be called before any evidence has been taken, for there is nothing before the Court which he can be called
upon to explain. upon to explain.
Magistrate to make memorandum of substance of
Magistrate to make memorandum of substance of examination sub- section (1)1.examination sub- section (1)1. — — This sub-This sub-section does not apply in a
section does not apply in a case where the accused pcase where the accused pleads guilty. In such a case the pleads guilty. In such a case the provisions of rovisions of s. 252 being special provision would
s. 252 being special provision would be applicable and would Override the be applicable and would Override the provisions of thisprovisions of this sub-section.
sub-section.
The practice of prosecution not to
The practice of prosecution not to inform the Metropolitan Magistarte about previous convictionsinform the Metropolitan Magistarte about previous convictions of an accused person before his trial is salutory as it is
of an accused person before his trial is salutory as it is founded on the desire of the prosecutingfounded on the desire of the prosecuting authorities to see that
authorities to see that the accused has the accused has fair play. But they fair play. But they may indicate to the Magistrate imay indicate to the Magistrate in a casen a case in which he is not
in which he is not bound to take evidence but where the accused has bound to take evidence but where the accused has previous conviction thatprevious conviction that they think that the case is one in which it is desirable that the evidence should be recorded. An they think that the case is one in which it is desirable that the evidence should be recorded. An intimation of that sort cannot prejudice the trained
intimation of that sort cannot prejudice the trained mind of magistrate and the difficulty of mind of magistrate and the difficulty of finding, after he has t
finding, after he has tried the case, that he ought to ried the case, that he ought to have have recorded evidence can he saved. Whererecorded evidence can he saved. Where the Magistrate has tried a case without recording the evidence and he finds that a longer sentence the Magistrate has tried a case without recording the evidence and he finds that a longer sentence than six months ought to be passed, he should record the evidence afresh.
than six months ought to be passed, he should record the evidence afresh.
1.
1. „Every question put to him and ever„Every question put to him and every answer given by him, shall be y answer given by him, shall be recorded in full‟.— recorded in full‟.— This is of great importance, for a statement made
This is of great importance, for a statement made in answer to a question put in answer to a question put may have amay have a different meaning if considered without such question.
different meaning if considered without such question. When questions have in fact been put,
When questions have in fact been put, the failure to record them by ththe failure to record them by the Magistrate ise Magistrate is curable under 5. 463, provided that the error has not prejudice the accused in his defence curable under 5. 463, provided that the error has not prejudice the accused in his defence on the merits. But if the questions were not put
on the merits. But if the questions were not put at all sec. 463 does at all sec. 463 does not apply. Section 463not apply. Section 463 removes defect
removes defect of form, but of form, but not a defect not a defect of such of such stance.stance.
2.
2. „In the language in which the „In the language in which the accused is examined or, if that is naccused is examined or, if that is not practicable, in theot practicable, in the language of the Court‟.—
language of the Court‟.— Ordinarily, the statement should be recorded in the Ordinarily, the statement should be recorded in the language inlanguage in which the accused was examined. The object in view is to obtain the words used by the which the accused was examined. The object in view is to obtain the words used by the accused, and by this means to l
accused, and by this means to learn the meaning of what he earn the meaning of what he may have said. If it is may have said. If it is notnot practicable to record the examination in the language in which it is made, it may be practicable to record the examination in the language in which it is made, it may be
recorded in the language of
recorded in the language of the Court.Where the statement is made in a the Court.Where the statement is made in a foreign languageforeign language unknown to the Court, the language in which that statement is conveyed to the Court by unknown to the Court, the language in which that statement is conveyed to the Court by the interpreter is the language in which the statement should be recorded.
the interpreter is the language in which the statement should be recorded.
3.
3. Signed by the accused‟.Where Signed by the accused‟.Where an accused an accused person cannotperson cannot sign his name his mark issign his name his mark is sufficient for the requirements of this section. The record of confession must bear sufficient for the requirements of this section. The record of confession must bear thethe signature of the accused, otherwise it is not
282. Interpreter to be bound
282. Interpreter to be bound to interpret truthfully:- When the services of an interpreter areto interpret truthfully:- When the services of an interpreter are required by any Criminal Court for the interpretation of an
required by any Criminal Court for the interpretation of an y evidence or statement, he shall bey evidence or statement, he shall be bound to state the true interpretation of such evidence or statement.
bound to state the true interpretation of such evidence or statement. 283. Record in High Court:- Ever
283. Record in High Court:- Every High Court may, by general rule, py High Court may, by general rule, prescribe the manner inrescribe the manner in which the evidence of witnesses and the examination of the accused shall be taken down in cases which the evidence of witnesses and the examination of the accused shall be taken down in cases coming before it, and such evidence and examination shall be taken down in accordance with coming before it, and such evidence and examination shall be taken down in accordance with such rule.
such rule.
Part B. Part B.
Part (A) deals with provisions contained in Ss. 284
Part (A) deals with provisions contained in Ss. 284 -290 relating to commissions for the-290 relating to commissions for the examination of witnesses; and p (B) discusses the provisions of Ss.291
examination of witnesses; and p (B) discusses the provisions of Ss.291 -299 dealing with certain-299 dealing with certain special rules of evidence to facilitate proof and
special rules of evidence to facilitate proof and to reduce the time and exto reduce the time and expenditure involved inpenditure involved in the production of certain kinds of evidence.
the production of certain kinds of evidence. Sections 284-290 give the procedure
Sections 284-290 give the procedure for issuing commissions for the examination of witnessesfor issuing commissions for the examination of witnesses and for the execution of
and for the execution of such commissions. These provisions are applicable in respect of such commissions. These provisions are applicable in respect of witnesses in the territories to which the Code extends. Th
witnesses in the territories to which the Code extends. Th ey also apply in case of witnesses iney also apply in case of witnesses in areas in India but outside those territories, and of witnesses outside
areas in India but outside those territories, and of witnesses outside India. It may, however, beIndia. It may, however, be noted that these provisions have to be
noted that these provisions have to be sparingly used; because, as has been sparingly used; because, as has been held in several cases,held in several cases, examination on commission is an exception rather than the rule.‟
examination on commission is an exception rather than the rule.‟
The fundamental basic principle of judicial procedure is that the evidence of one party should not The fundamental basic principle of judicial procedure is that the evidence of one party should not be received against another party without the latter having an opportunity of testing its
be received against another party without the latter having an opportunity of testing its truthfulness by cross- examination. The provisions of Ss. 291-299
truthfulness by cross- examination. The provisions of Ss. 291-299 have, for varied reasons,have, for varied reasons, created some exceptions to this fundamental basic principle. The exceptions are, however, created some exceptions to this fundamental basic principle. The exceptions are, however, subject to certain safeguards.
subject to certain safeguards.
A. COMMISSIONS FOR THE EXAMINATION OF WITNESSES A. COMMISSIONS FOR THE EXAMINATION OF WITNESSES
Dispensing with the attendance of
Dispensing with the attendance of witness by issuingwitness by issuing commission forcommission for hhisisexamination.examination. — — Whenever, in the course of any inquiry, trial or other proceeding under the Code, it appears to a Whenever, in the course of any inquiry, trial or other proceeding under the Code, it appears to a court or magistrate that the examination of a
court or magistrate that the examination of a witness is necessary for the ends of justice, and thatwitness is necessary for the ends of justice, and that the attendance of such a witness cannot be procured without an amount of delay, expense or the attendance of such a witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the court or inconvenience which, under the circumstances of the case, would be unreasonable, the court or magistrate may dispense with such attendance and
magistrate may dispense with such attendance and may issue a commission for the examinationmay issue a commission for the examination of the witness in accordance with the provisions of this chapter. [S. 284(1)].
of the witness in accordance with the provisions of this chapter. [S. 284(1)]. As a general rule every witness ought to
As a general rule every witness ought to be present in court where the be present in court where the case is tried because of thecase is tried because of the various advantages that are derived by such presence not only to the court but also to the
various advantages that are derived by such presence not only to the court but also to the accused. Therefore, though the court
accused. Therefore, though the court has got discretion in issuing a commission for thehas got discretion in issuing a commission for the examination of witnesses, that discretion should be used sparingly and
examination of witnesses, that discretion should be used sparingly and only in the clearestonly in the clearest possible case. As a general rule it may be said that the important witnesses on whose testi possible case. As a general rule it may be said that the important witnesses on whose testimonymony
the case against the accused person has to be established must be examined in court and usually the case against the accused person has to be established must be examined in court and usually the issuing the issuing of commission should be
the issuing the issuing of commission should be restricted to formal witnesses or such witnessesrestricted to formal witnesses or such witnesses who could not be produced without an amount of delay or inconvenience unreasonable in the who could not be produced without an amount of delay or inconvenience unreasonable in the circumstances of the case. The discretion to b
circumstances of the case. The discretion to be used by the court oe used by the court or magistrate in issuing ar magistrate in issuing a commission is a judicial one and should not
commission is a judicial one and should not be lightly or arbitrarily exercised. If the evidencebe lightly or arbitrarily exercised. If the evidence against the accused is recorded in his presence and in open court, he gets an opportunity to against the accused is recorded in his presence and in open court, he gets an opportunity to challenge the testimony against him by cross-examination,
challenge the testimony against him by cross-examination, and the court is enabled to see and the court is enabled to see thethe witnesses and observe their demeanour. This aspect is
witnesses and observe their demeanour. This aspect is to be borne in mind while to be borne in mind while exercising theexercising the discretion to issue commissions for the examination of witnesses.
discretion to issue commissions for the examination of witnesses. The court may, when issuing a
The court may, when issuing a commission for the examination of a witness for the prosecution,commission for the examination of a witness for the prosecution, direct that such amount as the court considers reasonable to meet the expenses of the accused, direct that such amount as the court considers reasonable to meet the expenses of the accused, including the pleader‟s fees, be paid by the prosecution. [5. 284(2)].
including the pleader‟s fees, be paid by the prosecution. [5. 284(2)]. The above S. 284(2
The above S. 284(2) gives a discretion to the court, and ) gives a discretion to the court, and it may well be assumed that similar it may well be assumed that similar discretion is there to a magistrate issuing a commission for the examination of
discretion is there to a magistrate issuing a commission for the examination of witnesses thoughwitnesses though the word magistrate has not been u
the word magistrate has not been used in the section. The court or sed in the section. The court or magistrate has been givenmagistrate has been given discretion to require payment by the prosecution
discretion to require payment by the prosecution of such expenses as the cof such expenses as the court or magistrateourt or magistrate considers reasonable to enable the accused and his counsel to participate in the examination on considers reasonable to enable the accused and his counsel to participate in the examination on commission. It may be noted that such
commission. It may be noted that such payment is however confined to cpayment is however confined to cases where aases where a commission is issued for the examination of a
commission is issued for the examination of a prosecution witness. prosecution witness.
The question whether a complainant can be examined on commission has been answered in the The question whether a complainant can be examined on commission has been answered in the negative. In a case, the complainant‟s request to be examined on commission due to his old age negative. In a case, the complainant‟s request to be examined on commission due to his old age and ill-health was rejected by the court asserting that he would not be covered under S. 284 of and ill-health was rejected by the court asserting that he would not be covered under S. 284 of the Code. According to the court, the co
the Code. According to the court, the complainant‟s privilege as a witness has to surrender to hismplainant‟s privilege as a witness has to surrender to his duties as a complainant and to
duties as a complainant and to the rights of the accused.the rights of the accused.
Commission to whom to be issued.
Commission to whom to be issued.
—
—
( 1)( 1)If the witness is within the territories to which thisIf the witness is within the territories to which this Code extends, the commission shall beCode extends, the commission shall be directed to the Chief Metropolitan Magistrate or Chief directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be, within wh
Judicial Magistrate, as the case may be, within wh ose local jurisdiction the witness is to beose local jurisdiction the witness is to be found. [S. 285(1)]
found. [S. 285(1)]
(2) If the witness is in India, but in a
(2) If the witness is in India, but in a State or an area to which this CoState or an area to which this Code does not extend, de does not extend, thethe commission shall be directed to such court or officer as th
commission shall be directed to such court or officer as th e Central Government may, bye Central Government may, by notification, specify in this behalf. [S. 285(2)
notification, specify in this behalf. [S. 285(2) (3) If the witness is in a country or place
(3) If the witness is in a country or place outside India and arrangements have beoutside India and arrangements have been made by theen made by the Central Government with the Government of such country or place for taking the evidence of Central Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters, the commission shall be issued in such form, directed to witnesses in relation to criminal matters, the commission shall be issued in such form, directed to such court or officer, and sent to
such court or officer, and sent to such authority for transmission, as the Central Governmentsuch authority for transmission, as the Central Government may, by notification, prescribe in this behalf. [S.
The provisions contained in Ss. 285 and 290 of the Code contain complementary provisions for The provisions contained in Ss. 285 and 290 of the Code contain complementary provisions for reciprocal arrangements between the Government of our
reciprocal arrangements between the Government of our country and the Government of acountry and the Government of a foreign country for commission from courts in India to specified courts in the
foreign country for commission from courts in India to specified courts in the foreign country for foreign country for examination of witnesses in the foreign country and
examination of witnesses in the foreign country and similarly for commissions from specifiedsimilarly for commissions from specified courts in the foreign country for examination o
courts in the foreign country for examination of witnesses residingf witnesses residing in our country.‟° When itin our country.‟° When it appears that reciprocal arrangements within the meaning of Ss. 285 and 290 are not made, courts appears that reciprocal arrangements within the meaning of Ss. 285 and 290 are not made, courts would not make orders in vain
would not make orders in vain for the issue of commission under S. 285(3).”for the issue of commission under S. 285(3).”
Execution
Execution of commissions.of commissions. — — Upon receipt of the commission, the Upon receipt of the commission, the Chief MetropolitanChief Metropolitan
Magistrate or Chief Judicial Magistrate, or such Metropolitan or Judicial Magistrate as he may Magistrate or Chief Judicial Magistrate, or such Metropolitan or Judicial Magistrate as he may appoint in this behalf, shall
appoint in this behalf, shall
summon the witness before him or proceed to the
summon the witness before him or proceed to the place where the witness is, and shall take place where the witness is, and shall take downdown his evidence in the same
his evidence in the same manner, and may for this purpose exmanner, and may for this purpose exercise the same powers, as in trialsercise the same powers, as in trials of warrant-cases under this Code. [S. 286
of warrant-cases under this Code. [S. 286 The parties to any proceeding
The parties to any proceeding under this Code in which a under this Code in which a commission is issued may respectivelycommission is issued may respectively forward any interrogatories in writing which the court or ma
forward any interrogatories in writing which the court or ma gistrate directing the commissiongistrate directing the commission may think relevant to the issue, and
may think relevant to the issue, and it shall be lawful for the magistrate, court or officer to whomit shall be lawful for the magistrate, court or officer to whom the commission is directed, or to whom the du
the commission is directed, or to whom the duty of executing it is delegated, to ty of executing it is delegated, to examine theexamine the witness upon such interrogatories. [S. 287(1)] Generally speaking, witnesses in a criminal case witness upon such interrogatories. [S. 287(1)] Generally speaking, witnesses in a criminal case should not be examined on commission except in extreme cases of delay, expense or
should not be examined on commission except in extreme cases of delay, expense or inconvenience and in particular the
inconvenience and in particular the procedure by way of interrogatories should procedure by way of interrogatories should be resorted to inbe resorted to in unavoidable situations.
unavoidable situations.
Any such party as is referred to above
Any such party as is referred to above may appear before such magistrate, court or omay appear before such magistrate, court or officer byfficer by pleader, or if not in custody, in person, and may examine, cross-examine and re-examine (as the pleader, or if not in custody, in person, and may examine, cross-examine and re-examine (as the
case may be) the said witness. [S.
case may be) the said witness. [S. 287(2)]287(2)]
Return of Commission.
Return of Commission.
—
—
AfterAfterany commission issued under S. 284 has been duly executed, itany commission issued under S. 284 has been duly executed, it shall be returned, together with the depositionshall be returned, together with the deposition of the witness examined there under, to the of the witness examined there under, to the courtcourt or magistrate issuing the commission; and the commission, the return thereto and
or magistrate issuing the commission; and the commission, the return thereto and the depositionthe deposition shall be open at all reasonable
shall be open at all reasonable times to inspection of the parties, and matimes to inspection of the parties, and may subject to all justy subject to all just exceptions, be read in evidence
exceptions, be read in evidence in the case by in the case by either party, and shall form part of the record [S.either party, and shall form part of the record [S. 288(1)]
288(1)]
Any deposition so taken, if it satisfies the conditions prescribed by S.
Any deposition so taken, if it satisfies the conditions prescribed by S. 33 of the Indian Evidenc33 of the Indian Evidencee Act, 1872, may also be received in evidence at any subsequent stage of the case before another Act, 1872, may also be received in evidence at any subsequent stage of the case before another court. [S. 288(2)]
court. [S. 288(2)]
Section 33 of the Evidence Act provides as follows: Section 33 of the Evidence Act provides as follows:
Evidence given by a witness in a judicial proceeding, or before any person authorized by law to Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of
take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, oproving, in a subsequent judicial proceeding, or in a later r in a later stage of the same judicial proceeding, the
dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the
which, under the circumstances of the case, the court considers unreasonable:case, the court considers unreasonable: Provided that the proceeding was b
Provided that the proceeding was between the same parties or their representatives in interest;etween the same parties or their representatives in interest; that the adverse party in the
that the adverse party in the first proceeding had the right and oppofirst proceeding had the right and opportunity to cross-examine;rtunity to cross-examine; that the questions in issue were substantially the same in the
that the questions in issue were substantially the same in the first as in the second proceeding.first as in the second proceeding. Explanation.
Explanation.
—
—
A A criminal trial or inquiry shall be deemed to be criminal trial or inquiry shall be deemed to be a proceeding between thea proceeding between the prosecutor and the accused within the meaning of this section.prosecutor and the accused within the meaning of this section.
Execution of foreign commissions.
Execution of foreign commissions.
—
—
SectionSection 290 provides as follows:290 provides as follows: 290. Execution of foreign commissions.290. Execution of foreign commissions. — — (1) The provisions of S. 286 and so much of S. 287(1) The provisions of S. 286 and so much of S. 287 and S. 288 as
and S. 288 as relate to the execution of a corelate to the execution of a commission and its return shall apply in respect of mmission and its return shall apply in respect of commissions issued by any of the Courts, Judges or Ma
commissions issued by any of the Courts, Judges or Ma gistrates hereinafter mentioned as theygistrates hereinafter mentioned as they apply to commission issued under S. 284.
apply to commission issued under S. 284.
(2) The Courts, Judges and Magistrates referred to in sub-section (1) are (2) The Courts, Judges and Magistrates referred to in sub-section (1) are — — (a)
(a) any such Court, Judge or any such Court, Judge or Magistrate exercising jurisdiction within an area in India to whichMagistrate exercising jurisdiction within an area in India to which this Code does not extend, as the Central
this Code does not extend, as the Central
Government may, by notification, specify in this behalf; Government may, by notification, specify in this behalf; (b)
(b) any Court, Judge or Magistrate exercising jurisdiction in any such country or place outsideany Court, Judge or Magistrate exercising jurisdiction in any such country or place outside India, as the
India, as the Central Government may, by notification, specif‟ in this behalf, and havingCentral Government may, by notification, specif‟ in this behalf, and having authority, under the law in force in that
authority, under the law in force in that country or place, to issue commissions for thecountry or place, to issue commissions for the examination of witnesses in relation to criminal matters.
examination of witnesses in relation to criminal matters.
Adjournment of
Adjournment of proceeding. proceeding. — — In every case in which a In every case in which a commission is issued under S. 284, thecommission is issued under S. 284, the inquiry, trial or other proceeding may be adjourned for a specified time reasonably sufficient for inquiry, trial or other proceeding may be adjourned for a specified time reasonably sufficient for the execution and return of the commission. [S. 289]
the execution and return of the commission. [S. 289]
B.
B. SPECIAL CIRCUMSTANCES PERMITTING UNASSAYED EVIDENCESPECIAL CIRCUMSTANCES PERMITTING UNASSAYED EVIDENCE There are two methods of testing evidence
There are two methods of testing evidence and ensuring that truth comes out and ensuring that truth comes out in evidence. Thein evidence. The first is by administration of oath and the other is cross-examination.
first is by administration of oath and the other is cross-examination. These are the two mostThese are the two most important safeguards against false testimony and unless evidence is given
important safeguards against false testimony and unless evidence is given on oath and is testedon oath and is tested by cross- examination, it is not legally admissible agains
by cross- examination, it is not legally admissible against the party affected. However, theset the party affected. However, these safeguards have been, to an extent, dispensed with in the circumstances mentioned in Ss. safeguards have been, to an extent, dispensed with in the circumstances mentioned in Ss. 290-291. The following paragraphs
291. The following paragraphswillwilldeal with these matters.deal with these matters. Deposition
Deposition of medicalof medicalwitness. — witness. — The deposition of a civil surgeon or other medical witness,The deposition of a civil surgeon or other medical witness, taken and attested by a magistrate in the presence of the accused, or taken on commission under taken and attested by a magistrate in the presence of the accused, or taken on commission under this chapter, may be given in evidence in any inquiry, trial or other proceeding under this Code, this chapter, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as a witness. [S. 29 1(1)]
The court may, if it thinks fit, and
The court may, if it thinks fit, and shall, on the application of the shall, on the application of the prosecution or the accused,prosecution or the accused, summon and examine any such deponent as to the subject-matter of his deposition. [S. 291(2) summon and examine any such deponent as to the subject-matter of his deposition. [S. 291(2) The deposition of a medical witness, taken and signed in the presence of the accused and attested The deposition of a medical witness, taken and signed in the presence of the accused and attested by a magistrate, can be given as evidence in any inquiry or trial even without calling him as a by a magistrate, can be given as evidence in any inquiry or trial even without calling him as a
witness. It may, however, be noted
witness. It may, however, be noted that the section confines itself to expert evidence given that the section confines itself to expert evidence given by aby a medical witness as such. The section does not apply to the evidence relating to facts tendered by medical witness as such. The section does not apply to the evidence relating to facts tendered by a person who also happens to be a medical man.
a person who also happens to be a medical man. No
Noformal proof of certain documents.formal proof of certain documents.
—
—
WhereWherethe genuineness of any document is notthe genuineness of any document is not disputed by the parties, such document should be allowed to be read in evidence without the disputed by the parties, such document should be allowed to be read in evidence without the formal proof of the signature of the person toformal proof of the signature of the person to whom it purports to be signed. Twhom it purports to be signed. This has beenhis has been provided by S. 294 which reads as follows:
provided by S. 294 which reads as follows:
294.
294. No formai No formaiproof proof of certain documents.of certain documents. — — (1) Where any document is filed before an(1) Where any document is filed before an y Courty Court by the prosecution or the accused, the particulars of every such document shall be included in a by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such
the accused, if any, shall be called upon to admit or deny the genuineness of each such document.,
document.,
(2) The list of documents shall be in
(2) The list of documents shall be in such form as may be prescribed bsuch form as may be prescribed by the State Government.y the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or othe
evidence in any inquiry, trial or other proceeding under this Code without pr proceeding under this Code without proof of the signatureroof of the signature of the person to whom it purports to be signed:
of the person to whom it purports to be signed: Provided that the Court may, in its discretion, req
Provided that the Court may, in its discretion, req uire such signature to be proved. uire such signature to be proved. The section isThe section is useful for curtailing avoidable delay and expenditure in the conduct
useful for curtailing avoidable delay and expenditure in the conductof of the criminal proceedings.the criminal proceedings. The word „any‟ appearing before the word „document‟ in S. 294(1) theans an indefinite number The word „any‟ appearing before the word „document‟ in S. 294(1) theans an indefinite number and makes that provision applicable to
and makes that provision applicable to all documents filed by the prosecution oall documents filed by the prosecution or the accusedr the accused irrespective of their nature and character. u
irrespective of their nature and character. u For attracting S. 294 it is irrelevant whether theFor attracting S. 294 it is irrelevant whether the documents admitted to be genuine
documents admitted to be genuine are primary or secondary or substantive are primary or secondary or substantive or corroborative.or corroborative. If the prosecution or the accused do
If the prosecution or the accused does not dispute the genuineness of docues not dispute the genuineness of document filed by thement filed by the opposite party under S. 294(1), it
opposite party under S. 294(1), it amounts to an admission that the entire docuamounts to an admission that the entire document is true andment is true and correct. It means that the document has been signed by the person by whom it purports to be correct. It means that the document has been signed by the person by whom it purports to be signed. It also implies the admission as to the correctness of the
signed. It also implies the admission as to the correctness of the contents of the document. Such contents of the document. Such aa document may be read in evidence under S. 294(3). The phrase „read in evidence‟ means as
document may be read in evidence under S. 294(3). The phrase „read in evidence‟ means as substantive evidence, which is the evidence adduced to prove a fact in issue as opposed to the substantive evidence, which is the evidence adduced to prove a fact in issue as opposed to the evidence used to discredit a witness or to
evidence used to discredit a witness or to corroborate his testimony. Therefore an injury reportcorroborate his testimony. Therefore an injury report filed by the prosecution under S. 294(1) whose genuineness is not disputed by the accused may filed by the prosecution under S. 294(1) whose genuineness is not disputed by the accused may be read as substantive evidence under S. 294(3).
Affidavits in proof of certain matters.
Affidavits in proof of certain matters.
—
—
ToTospeed up the trial out affecting its fairness, it hasspeed up the trial out affecting its fairness, it has been provided that evidence of a formal acter may be adduced by filing an affidavit of the been provided that evidence of a formal acter may be adduced by filing an affidavit of thewitness.
witness. The relevant „isions in this connection are as follows:The relevant „isions in this connection are as follows: (a) Affidavit in proof of conduct of
(a) Affidavit in proof of conduct of publicpublic servants.servants. — — According to 95, when any application isAccording to 95, when any application is made to any court in the course of any Liry, trial or other proceeding under this Code, and made to any court in the course of any Liry, trial or other proceeding under this Code, and allegations are made em respecting any pub
allegations are made em respecting any public servants, the applicant may give lic servants, the applicant may give evidence of factsevidence of facts alleged in the application by a
alleged in the application by affidavit, and the court may, if it ks fit, order ffidavit, and the court may, if it ks fit, order that evidence relatingthat evidence relating to such facts be so given. [S. 295
to such facts be so given. [S. 295 (b) Evidence of formal character on
(b) Evidence of formal character on affidavit.affidavit.
—
—
The evidence of any ;on whose evidence is of aTheevidence of any ;on whose evidence is of a formal character may be given bformal character may be given by affidavit may, subject to all just exceptions, be read iny affidavit may, subject to all just exceptions, be read in evidence in any inquiry, 1 or other proceeding under this Code. [S. 296(1)
evidence in any inquiry, 1 or other proceeding under this Code. [S. 296(1) The court may, if it thinks fit, and
The court may, if it thinks fit, and shall, on the application of the shall, on the application of the secution or the accused,secution or the accused, summon and examine any such
summon and examine any such person as to facts contained in person as to facts contained in the affidavit. [S. 296(2)] Besidesthe affidavit. [S. 296(2)] Besides the two categories of evidence as mentioned in Ss. 295 and no other evidence can be adduced by the two categories of evidence as mentioned in Ss. 295 and no other evidence can be adduced by affidavit.
affidavit.
(c) Affidavits how
(c) Affidavits how made.made. — — Section 297 provides as follows:Section 297 provides as follows: 297. Authorities before whom affidavits may be sworn.
297. Authorities before whom affidavits may be sworn. — — ( 1) Affidavits to be used before any( 1) Affidavits to be used before any Court under this Code may be sworn or affirmed
Court under this Code may be sworn or affirmed before
before — —
(a) anyjudge or any judicial or Executive Magistrate, or (a) anyjudge or any judicial or Executive Magistrate, or (b)
(b) any Commissioner of Oaths appointed by a any Commissioner of Oaths appointed by a High Court or Court of Session, or High Court or Court of Session, or (c)
(c) any notary appointed under the Notaries Act, 1952 (53 of 1952).any notary appointed under the Notaries Act, 1952 (53 of 1952). (2) Affidavits shall be confined to, and shall state separately, such
(2) Affidavits shall be confined to, and shall state separately, such facts as the deponent facts as the deponent is able tois able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true, prove from his own knowledge and such facts as he has reasonable ground to believe to be true,
and in the latter case, the
and in the latter case, the deponent shall clearly state the grounds of deponent shall clearly state the grounds of such belief.such belief. (3) The Court may order any scandalous
(3) The Court may order any scandalous and irrelevant matter in the affidavit to and irrelevant matter in the affidavit to be struck out or be struck out or amended.
amended.
An affidavit is a written declaration or statement of facts, made vo
An affidavit is a written declaration or statement of facts, made vo luntarily, and confirmed byluntarily, and confirmed by oath or affirmation of the party making it, taken
oath or affirmation of the party making it, taken before an officer haying authority to administer before an officer haying authority to administer such oath. Section 297(1) mentions the
such oath. Section 297(1) mentions the authorities before whom the affidavit may be sworn or authorities before whom the affidavit may be sworn or affirmed.
affirmed.
Section 297(2) states the matters to which the affidavits are to
Section 297(2) states the matters to which the affidavits are to be confined and the be confined and the mode inmode in which they are to be
which they are to be sciom or affirmed. In a case where it is not sciom or affirmed. In a case where it is not stated in the affidavit as to whichstated in the affidavit as to which portion is sworn on personal knowledge or on the information received from record or from any portion is sworn on personal knowledge or on the information received from record or from any
other source, and where the person before whom the affidavit has been presented and who has other source, and where the person before whom the affidavit has been presented and who has verified it has not certified the fact of swearing of
