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Report No. 41

25.21. Section 362.-

As already mentioned, the recording of evidence in inquiries and trials before the Presidency Magistrate will be governed by the same provisions as those applicable to other Magistrates. A distinction is now made in section 362 between cases in which an appeal lies and those in which no appeal lies. If the case falls in the latter categor.-and the Magistrate has to make up his mind at the beginning of the trial which prima facie is not appropriat.-the Magistrate need not record any evidence.

If the Magistrate thinks that the case is such that in the event of conviction of the accused, he may have to pass an appealable sentence, he has to record the evidence in the same way as a Magistrate in a district. We do not think it is desirable to maintain this distinction. Another peculiar feature is that in a no.-appealable warran.-case it is not necessary for a Presidency Magistrate to frame a charge: vide section 362(4). There is hardly any justification for this artificial distinction. We recommend the omission of the whole of section 362.

25.22. Section 363.-

No change of substance is required in section 363, which relates to remarks respecting the demeanour of witness; but the reference to "a Sessions Judge", may be replaced by the words "the presiding Judge" in order that there may be no doubt as to the applicability of the section to an Additional or Assistant Sessions Judge.

25.23. Section 364.-

Section 364 relates to the mode of recording the examination of the accused and the language of such examination and of the record. It applies to all Magistrates other than Presidency Magistrates whose proceedings in this respect are regulated by section 362(2A). Since the omission of section 362 is being proposed, su.-section (2A) of that section may be included in section 364.

This section does not apply to the High Courts of States but applies to the Courts of Judicial Commissioners. Apparently, the matter is left to be dealt with either by rules made under section 365 on the footing that "evidence" in a wide sense includes the examination of the accused, or by the rules of Court referred to in Article 225 of the Constitution. However that may be, since original criminal trials before a High Court or a Judicial Commissioner's Court are rare, the exclusion of these Courts from the scope of section 364 is not of any practical consequence. There is no need to treat the Courts of Judicial Commissioners differently and they also may be excluded.

In su.-section (2), the requirement that the record shall be signed only "when the whole is made conformable to what the accused declares is the truth" is not very appropriate. The provision in su.-section (1) that he shall be at liberty to explain or add to his answers is sufficient for practical purposes.

We propose that the section may be revised as follows.-

"364. Record of examination of accused.- (1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court or in English. Such memorandum shall be signed by the Magistrate and shall form part of the record.

(2) Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full either by the Magistrate or Judge himself or under his direction and superintendence by an officer of the Court appoihted by him in this behalf

(3) The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable, in the language of the Court

(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 a language which he understands, and he shall be at liberty to explain or add to his answers.

(5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge who shall certify under his own hand that the examination was taken in his presence and hearing and 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 apply to the examination of an accused person in the course of a summary trial."

25.24. Section 365.-

Section 365 may be amended so as to confer a rul.-making power on Judicial Commissioners' Courts besides the High Courts of States and also to cover expressly examination of the accused. The section may read as follows.-

"365. Record in High Court.- Every High Court may, by general rule, prescribe the manner in 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 such rule."

Code of Criminal Procedure, 1898 Back

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