Report No. 77
12.4. Difficulties of de novo trial.-
Instances have also not been lacking when witnesses have gone back on their earlier deposition during the course of de novo trial as a result of undue pressure. This results, as it must, in miscarriage of justice. The underlying reason of the existing law is the desirability to ensure that the judge who decides the case should also record the entire evidence, as he would have the advantage of looking at the demeanour of the witnesses.
Though we do not deny the force of the above view, we feel that the disadvantage accruing therefrom in present times when there are a number of cases in the court of session wherein voluminous evidence has to be recorded, is much greater. In the circumstances, we would like to have the same law to operate in the court of session as prevails in the court of magistrates. It is also noteworthy that power would still be there in the sessions court, even after section 326 is made applicable to that court, of recording the evidence of any witness de novo whenever that court feels it necessary to do so in the interest of justice.