Report No. 41
Mode of Taking and Recording Evidence in Inquiries and Trials
25.1. Section 353.-
Section 353 lays down the general rule that at any inquiry or trial, all evidence "shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader". There is a difference of judicial opinion as to whether the words "when his personal attendance is dispensed with" occurring in this section confer by themselves a power on the Court to dispense with the personal attendance of the accused, or whether they merely refer to the two other provisions of the Code, namely sections 205 and 540A, under which such attendance can be dispensed with.
The Madras,1 Allahabad2 and Assam3 High Courts have taken the view that the section itself empowers the Court to dispense with the attendance of the accused at the evidence stage but the contrary view has been taken by the Calcutta4 High Court. In our opinion, section 353 is not intended to confer an independent power of dispensing with the personal attendance of the accused and this should be made clear by adding a reference to sections 205 and 540A after the words "dispensed with".
We considered a suggestion that in cases where the accused deliberately obstructs the proceedings or otherwise makes it impossible for the Court to take the evidence of witnesses in his presence, it should be lawful for the trial to proceed in his absence, or even in the absence of his pleader if he has no pleader to represent him. Since, however, no such difficulty has arisen in practice, so far as we are aware, we do not consider it necessary to provide for such a contingency.
1. Ummal Hasanath (in re:), AIR 1947 Mad 433 (434).
2. Sultan Singh v. State, AIR 1951 All 864 (867) (Full Bench); Aditya Prasad v. Jogindra Nath, AIR 1948 All 393 (395).
3. Kamal Devi v. Pannalal, AIR 1952 Assam 151.
4. Kali Das v. State, AIR 1954 Cal 576.
25.2. Section 35.-omission recommended.-
The object of section 354 is purely to introduce the next seven sections. It enacts no rule of procedure and is really superfluous. Furthermore, the reference to a Sessions Judge is, strictly speaking, not correct; it should be to a Court of Session so that there is no doubt as to the applicability of the sections to Additional and Assistant Sessions Judges. We also propose to place inquiries and trials by Presidency Magistrates on the same footing as those by other Magistrates in regard to the recording of evidence. We, therefore, recommend that this section be omitted.
25.3. Different modes of recording evidence.-
Section 355 governs the recording of evidence in three categories of cases, namely (1) summons cases tried before a Magistrate other than a Presidency Magistrate; (ii) cases of the offences mentioned in clauses (b) to (m) of section 260(1) when tried by a Magistrate of a first or second class but not summarily; and (iii) proceedings under section 514 otherwise than in the case of a trial. The essential feature is that in these cases, the Magistrate is only required to make a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds. Section 358, however, provides that the Magistrate may, if he thinks fit, take down the evidence of any witness in a fuller manner as provided for warrant cases.
The mode of recording evidence in all other trials except before Presidency Magistrates and in all inquiries under Chapter XII and XVIII is regulated mainly by sections 356 and 359. In these cases, evidence has to be recorded in greater fullness, generally in the form of a narrative and occasionally, when considered necessary by the presiding Judge or Magistrate, in the form of questions actually put and answers actually given.
Section 362 applies to trials by Presidency Magistrates. Here again two modes of recording evidence are prescribed, a distinction being made between cases in which an appeal lies and cases in which there is no appeal. In the former class of cases, evidence is recorded in the same manner as in the trial of warran.-cases by Magistrates, while in the latter class of cases the Presidency Magistrate need not record the evidence at all.
The manner of recording evidence in cases coming up before the High Courts (other than Judicial Commissioners' Courts) is left to be prescribed by the Courts themselves under section 365.
25.4. Language of evidence and language of record.-
The language or languages in which this record of evidence is to be prepared is also regulated by sections 356 and 357, but only in regard to sessions trials, trials of warran.-cases and committal proceedings. Neither section 355 nor section 362 refers to the language in which the evidence is to be recorded in summon.-cases and by Presidency Magistrates. Presumably, however, it is to be done in the language of the Court or in English. Under section 356, the evidence is ordinarily to be taken down in the language of the Court.
When the evidence is given in some other language, including English, it may, if practicable, be taken down in that language or, if it is not practicable to do so, the evidence has presumably to be translated into the language of the Court as the examination of the witness proceeds and such translation is to be recorded. Su.-section (3) of section 356 provides that in cases where the presiding Judge or Magistrate does not take down the evidence with his own hand or dictate it in open Court, he should make a memorandum of the substance of what each witness says and this memorandum also shall form part of the record.
Section 357 contains a curious provision that the State Government may direct that in any district or part of a district, or in any proceedings before any Court of Session, or before any Magistrate or class of Magistrates, evidence shall be taken down by the Sessions Judge or Magistrate with his own hand and in his mothe.-tongue. The same section, however, goes on to provide that the State Government may direct the Sessions Judge or the Magistrate to take down the evidence in English or in the language of the Court although such language is not his mothe.-tongue.
25.5. Sections 355 to 359 and 362 not well drafted.-
This broad summary of sections 355 to 359 and 362 shows that they are a confused jumble of provisions, incomplete in some respects, and not very clearly or systematically arranged. The language in which the evidence is actually given and the language of the record are occasionally mixed up. For instance, it is not in all cases correct to say that the Judge or Magistrate "takes down" the evidence in his mothe.-tongue or in English or in the language of the Court. When the witness is giving evidence in an altogether different language, what is taken down, or caused to be taken down, by the Judge or Magistrate is a simultaneous translation of that evidence in his mothe.-tongue or English or the language of the Court, as the case may be.
25.6. Predominant position of English in the past.-
In this connection it will be useful to remember, particularly in regard to the language of the record, that this Chapter was enacted at a time when English was the language in which the business of practically all the criminal courts was conducted and all evidence given in the regional language was translated into, and recorded in English. The dual record of the evidence, for which provision is made in section 356(3), owed its origin to the same circumstance.
The Sessions Judge or Magistrate was often not sufficiently acquainted with the regional language in which most of the evidence was given, to take it down in that language. Consequently, the law had to provide for the preparation of a full record of the evidence by a court official, the Judge or Magistrate only taking notes of the evidence as the examination of the witness proceeded.
25.7. Simplification desirable.-
In view of the greatly changed conditions which now prevail, we think it desirable to analyse, both the mode of recording evidence and the language of the record for different classes of cases and courts and to simplify the provisions contained in this Chapter.
25.8. Section 35.-Language to be mentioned.-
Taking section 355 which prescribes what may be called a brief record of the evidence in three categories of cases, we have already mentioned the fact that it is silent as to the language of the record. This omission should be rectified by stating in the section itself that the Magistrate shall make a memorandum of the substance of the evidence in the language of the Court or in English. This would be in accord with the present practice.
25.9. Section to cover Presidency Magistrates.-
This section at present covers summon.-cases tried before a Magistrate other than a Presidency Magistrate. Earlier in this report we have recommended the inclusion of Presidency Magistrates in section 260(1) in order that they may be able to try all summon.-cases (and also the warran.-cases specified in that section) in a summary way. In practice, the number of summon.-cases tried by Presidency Magistrates in a regular manner must be comparatively very small. It could hardly make any difference if in those few cases they record the evidence briefly in the same manner as Magistrates elsewhere are required to do under section 355. The words "other than a Presidency Magistrate" occurring in su.-section (1) of this section may accordingly be omitted.
25.10. Section not to apply to any warrant cases.-
The second category of cases in which a brief record is prescribed by this section are warran.-cases relating to the offences mentioned in clauses (b) to (m) of section 260(1) when tried by the Magistrate of a first or second class in the regular way. Though some of these cases may be trivial, in view of the possibility of substantial sentences being imposed in such cases when not tried summarily, we think a full record of the evidence would be desirable. We, therefore, recommend omission of this part of su.-section (1) of section 355.