Report No. 41

25.11. Section to apply to inquiries under Chapter XII.- On the other hand,

in inquiries under Chapter XII i.e., sections 145, 146 and 147, which are now governed by section 356, a brief record of the evidence will be quite sufficient as the object of these proceedings is not determination of any right to immovable property but the prevention of an apprehended breach of the peace and the proceedings are intended to be summary in character. The reference to Chapter XII should accordingly be transposed from section 356(1) to section 355(1).

25.12. Revised section 355.-

Including a few drafting changes, the revised section 355 may read as follows.-

"355. Record in summon.-cases, inquiries under Chapter XII and proceedings under section 514.- (1) In all summon.-cases tried before a Magistrate, in all inquiries under Chapter XII, and in all proceedings under section 514 otherwise than in the course of a trial, the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of his evidence in the language of the Court or in English:

Provided that if the Magistrate is unable to make such memorandum himself, he shall, after recording the reason of his inability, cause such memorandum to be made from his dictation in open Court.

(2) Such memorandum shall be signed by the Magistrate and shall form part of the record."

25.13. Section 35.-omission recommended.-

Section 358 which is a sort of proviso to section 355 is hardly necessary. It purports to enable the Magistrate to take down the evidence in a fuller manner than that contemplated in section 355. This is not necessary since there could be no technical objection to any Magistrate taking down a memorandum of the evidence of each witness instead of trying to abbreviate or summarise it. Section 358, could, in our opinion, be safely omitted.

25.14. The mode of recording evidence in trials of warran.-cases before Magistrates, inquiries under Chapter XVIII and sessions trials is prescribed partly in section 356 and partly in section 359. The language of the record is dealt with partly in section 356 and partly in section 357. The provisions would be clearer and easier to follow if they were put in three separate sections: one dealing with the mode of recording evidence in warran.-cases and commitment proceedings, another dealing with the mode of recording evidence in sessions trials, and the third dealing with the language of the record in all these cases.

25.15. Revised Sections 356 and 357.-

The first two sections may be as follows.-

"356. Record in warrant cases and inquires under Chapter XVIII.- (1) In all warran.-cases tried before a Magistrate.,1 the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the Magistrate himself or, under his direction and superintendence by an officer of the Court appointed by him in this behalf.

(2) Such evidence shall ordinarily be taken down in the form of a narrative; but the Magistrate may, in his discretion, take down, or cause to be taken down, any part of such evidence in the form of question and answer.

(3) The evidence so taken down shall be signed by the Magistrate and shall form part of the record.

357. Record in trials before Courts of 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 the presiding Judge himself or, under his direction and superintendence, by an officer of the Court appointed by him in this behalf.

(2) Such evidence shall ordinarily be taken down in the form of question and answer; but the presiding Judge may, in his discretion, take down, or cause to be taken down, the whole or any part of such evidence in the form of a narrative.

(3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record."

1. In section 356(1) mention of Chapter 18 is omitted in view of proposed changes regarding commitment.

25.16. We have made two important changes in this revision, besides simplifying the unduly complicated provisions now contained in sections 356, 357 and 359. First, we consider that at the present time there is no need for the dual record which is being prepared in a few north Indian States under section 356(3). In cases where the evidence is not recorded by the Magistrate or presiding Judge himself but by an officer of the Court under his direction and superintendence, the notes1 which he may (or may not) keep for his own use need not necessarily form part of the record as provided in this section.

Neither of the revised sections 356 and 357 contains a provision similar to su.-section (3) of the present section 356. It will also be noticed that details like "from his dictation in open Court", "in his presence and hearing" and "personal direction" which now occur in the present sections 356 and 357 have been omitted in the revised sections as being superfluous.

1. Such notes were invariably in English while the full record of the evidence used to be in Urdu.

25.17. The second substantial change we have proposed is that in sessions trials evidence of each witness should ordinarily be recorded in the form of question and answer, though the presiding Judge may, in his discretion, have the whole or any part of the evidence recorded in the form of a narrative. This is reversing the existing position under section 359. It can hardly be disputed that, in the process of converting a question put by the advocate, particularly in cros.-examination, and the answer given by the witness, to a sentence purporting to be the witness's statement, accuracy is often lost and the record does not always convey all the implications of the question and the answer.

We recognise that making a full record of the evidence in the form of questions and answers almost necessarily involves the employment of shorthand writers at every sessions trial but consider that this step has to be taken in the interests of justice. The additional expense which it might seem to involve is, in our opinion, worth incurring, since the presiding Judge would be relieved of the tiresome task of recording the evidence himself and be able to concentrate attention on what the witness is saying and assess its worth.

25.18. As regards the language of the record we propose the following new section.-

"358. Language of record of evidence.- In every case where evidence is taken down under section 356 or 357

(a) if the witness gives evidence in the language of the Court, it shall be taken down in that language;

(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 the Court shall be prepared as the examination of the witness proceeds, signed by the Magistrate or presiding Judge, and shall form part of the record; and

(c) where under clause (b) evidence is taken down in a language other than the language of the Court, a true translation thereof in the language of the Court shall be prepared as soon as 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 in the language of the Court is not required by any of the parties the Court may dispense with such translation."

25.19. Section 360.-

Section 360 which prescribes the procedure to be followed after the evidence of each witness has been taken under section 356 or 357 requires only one or two formal amendments. In su.-section 2, for the words "Sessions Judge", the words "presiding Judge" may be substituted. In sub¬section (3), it would be more accurate to refer to the record of the evidence being in a language different from that in which it has been given. The su.-section may be amended to read:

"(3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted.. to him in the language in which it was given, or in a language which he understands."

25.20. Section 361.-

Section 361, which deals with the interpretation of the evidence to the accused or his pleader needs no change.