Report No. 41
Chapter XLI
Special Rules of Evidence
41.1. Introductory.-
The framers of the Code were aware that the evidence of certain experts in the service of Government would be frequently required in criminal courts, and if these experts were to be treated as ordinary witnesses whose sworn statement in court alone could be legal evidence, they would be spending most of their time giving evidence. Also, the number of such experts was so small that they could not be always conveniently spared for attending the courts. Special rules of evidence were therefore framed for them. They are placed in Chapter 41 of the Code.
In framing them, the cardinal rules of evidence have been kept in view and the number of experts kept at the minimum. Thus, according to section 509, a civil surgeon or other medical witness is now exempted from appearing in the Court of Session if he has given evidence in the committing court; and his recorded statement in that Court is by a special rule made evidence at the trial, the safeguard being that the trial court (i.e., the Court of Session) can, if it thinks fit, summon and examine the witness.
By section 510, the report of a Chemical Examiner is made evidence without the Chemical Examiner being at all called to give evidence in Court, again the safeguard being that he can at the discretion of the Court be called and examined. The same rule applies to the report of the Chief Inspector of Explosives, the Director of Finger Print Bureau or an officer of the Mint. Various suggestions have been made to include other experts in this list. It is, we think, necessary that we proceed in this direction with some caution, for, although past experience does not show any abuse of these special provisions, it would be unwise to make them general.
41.2. Section 509.-
Regarding section 509, which enables the Court of Session to accept as evidence the statement of a medical witness made in the committing court, it has been suggested1 that the time of such experts could be further saved, if the report could be treated as evidence without the expert's appearance in Court. We do not think there is anything to be gained by such a procedure. In a serious case, medical evidence can be all important, and a court will rarely find it unnecessary to call the medical witness to court to give oral evidence. On the other hand, there is considerable danger that the opinion of such experts may in such circumstances become somewhat irresponsible. An extreme suggestion2 made is that the report of a medical witness should be made conclusive evidence, a suggestion not worthy of serious consideration.
1. Suggestion received through the Home Ministry -F. 3(2)/55-L.C., Pt. V, C. No. 200.
2. Ibid.
41.3. Suggestions to include reports of other experts in section 510.-
Regarding section 510, the main suggestion is that many other experts could with advantage be included, so that they could be saved the need of appearing in Court. Thus, suggestions have been received for adding the following officers to those mentioned in section 510(1).-
(i) Technical staff of the Veterinary College, Mathura1 (in relation to reports as to whether flesh is of a cow or other animal with reference to the Prevention of Cow Slaughter Act);
(ii) Government handwriting experts2 and Government medical officers3 (the latter in relation to injuries report and post mortem report);
(iii) Directo.-General of Central Forensic Laboratories and Directors of State Forensic Laboratories.4 (It is stated that though the term "Chemical Examiner" may include a good portion of the work of the Director of Forensic Laboratory, there may be other investigations like ballistics, physics or biology, which may not call for chemical examination);
(iv) Director and other technical experts of the Haffkeins Institute;5
(v) Any expert of the Finger Print Bureau, instead of only the Director.
1. Suggestion of Government of U.P., received through the Home Ministr.-F. 3(2)/55 L.C., Pt. VI, S. No. 308.
2. F. 3(2)/5.-L.C., Pt. II, S. No. 33, p. 99.
3. Suggestion of Shri S.K. Sengupta, District Prosecutor, Biha.-F. 3(2)/5.-L.C., Pt. I, S. No. 72.
4. Resolution of Conference of Inspector.-General of Police and comment of the State Government of Madhya Pradesh thereon (received through the Home Ministry).
5. Suggestion of the Government of Bombay, received through the Home Ministr.-F. 3(2)/5.-L.C., Pt. I, S. No. 3.
41.4. Recommendation in 25th Report.-
As we have said1, it would not be wise to make this special provision applicable to every expert. The present provision takes in only those experts who, because of their small number and situation, require special treatment, and we are satisfied that this consideration alone would justify it. In the present list are.-
(i) any Chemical Examiner or Assistant Chemical Examiner;
(ii) the Chief Inspector of Explosives;
(iii) the Director of the Finger Print Bureau; and
(iv) any officer of the Mint.
The report of any of these experts on any matter duly submitted to him for examination or analysis is good evidence. We think that responsible officers in the Government Security Press and the office of the Controller of Stamps stand in a very similar position. The Commission has.- in an earlier Report,2 recommended that a new section (section 509A) should be inserted in the Code, covering the case of such officers. The need for a separate section arose because the Commission felt it necessary to provide that if any such expert is called to court, he should not be compelled to disclose any confidential information on which the report might be based, the reason being that the disclosure of such information may facilitate the forging of currency notes or revenue stamps. The same consideration applies to the officers of the Mint.
1. See para. 41.1, above.
2. 25th Report (Report on Evidence of Officers about forged stamps, currency notes etc.).
41.5. New section 509A proposed.-
We propose that the new section 509A should be in the following terms.-
"509A. Evidence of officers of mint etc.- (1) Any document purporting to be a report under the hand of any such gazetted officer of the Mint or of the India Security Press1 (including the office of the Controller of Stamps) as the Central Government may, by notification in the Official Gazette, specify in this behalf, upon any matter or thing duly submitted to him for examination and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code, although such officer is not called as a witness.
(2) The Court may, if it thinks fit, summon and examine any such officer as to the subjec.-matter of his report:
Provided that no such officer shall be summoned to produce any records on which the report is based.
(3) Without prejudice to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, no such officer shall, except with the permission of the Master of the Mint, the Controller of the India Security Press or the Controller of Stamps and Stationery, as the case may be, be permitte.-
(a) to give any evidence derived from any unpublished records on which the report is based; or
(b) to disclose the nature or particulars of any that applied by him in the course of the examination of the matter or thing."
1. The Controller of Stamps who is in charge of distribution is a part of the India Security Press. Printing of stamps is also done there.
41.6. Section 510 revised.-
Section 510 will deal with other expert reports where security is not a consideration. We propose to add two more experts in that list, namely.-
(i) the Director of the Haffkeins Institute, Bombay; and
(ii) the Director of the Central Forensic Laboratory.
We are not convinced that handwriting experts employed by Government should be treated in the same way. Their evidence is almost always subject to controversy and no special value can be attached to their reports merely because the expert is employed by Government. Nor can we justify the extension of this provision to cover ordinary medical or veterinary experts. The procedure here is very special and must be confined to special experts.
In an earlier Report1, the Commission noted that section 510(2), as amended in 1955, makes it obligatory for the Court to summon the Chemical Examiner or other officer mentioned in su.-section (1), if either party so desires. The Commission regarded this provision as unsatisfactory and recommended that it should be left to the discretion of the court to summon such officers. We agree with this recommendation and are suggesting an amendment to implement it.
Section 510 may be revised to read as follows.-
"510. Reports of certain Government scientific experts.-(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit summon and examine any such expert as to the subjec.-matter of his report.
(3) This section applies to the following Government scientific experts, namely.-
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Inspector of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director of the Hafficeins Institute, Bombay;
(e) the Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory2."
1. 14th Report, Vol. 2.
2. There are, at present, there Central Forensic Science Laboratories at New Delhi, Calcutta and Hyderabad, and State Forensic Science Laboratories at several places.
41.7. Sections 510A and 511.- No change is needed in sections 510A and 511.
41.8. Section 512 amended.-
Section 512 deals with a case which cannot be tried because the accused person has absconded and there is no prospect of his arrest in the near future. A Magistrate competent to try or commit him for trial can, in such circumstances, record the evidence produced by the prosecution; and that evidence can be later used at the trial of the accused when he is arrested, in case the witness who made that statement is not available to give evidence. This provision has proved useful, and does not need amendment.
The situations in which evidence recorded under su.-sections (1) and (2) of section 512 can be later utilised are described in different terms in each sub¬section, but it appears that the distinction is deliberate. Su.-section (2) is meant for a case where the offender is unknown and the offence is a serious one. We do not propose to disturb the distinction.
We propose, however, that in su.-section (1), the words "cannot be found" be added after the words "if the deponent is dead or is incapable of giving evidence", in order to make the provision comprehensive, and also, for the word "attendance", the word "presence" be substituted. These two amendments will bring the wording of this provision into conformity with that of section 33 of the Evidence Act.
It was further suggested to us that the situation where the deponent is kept out of court by an adverse party should also be covered by this provision. It would obviously be difficult to determine who is an adverse party and there would be allegations and counte.-allegations which are bound to create difficulties. This suggestion was therefore not accepted.
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