Report No. 77

12.8. Service on witnesses.-

We have in the earlier paragraph1 emphasised the necessity to record the entire evidence in criminal cases at a stretch. This would be necessary not only in the courts of session but also in the courts of magistrates. Such a course is feasible only if all the witnesses whose evidence has to be recorded are actually present in court premises on the date fixed for trial. As it is, we find that all the witnesses are seldom present on the date of hearing. This is particularly in the courts of magistrates.

The inevitable effect of that is that the evidence has to be recorded piecemeal and there is long time lag between the recording of the evidence of different witnesses. This is a most unwholesome practice and the sooner it is put an end to, the better. In not very distant past the investigating agency, at least in some States, evinced keen interest in the court proceedings and ensured that witnesses are present in court on the date of hearing. The result was that the entire prosecution evidence as recorded at a stretch and cases were disposed of very quickly.

The importance of the above practice, in our opinion, should be brought home to all concerned in the present times. It seems to us desirable that at least two police officials at every police station should be set apart for getting service effected upon witnesses for cases relating to that police station and for ensuring their presence on the date of hearing. We may also in the above contest refer to the provisions of section 309 of the Code of Criminal Procedure.

According to these provisions, in every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. It is also further required, according to the above section2, that when witnesses are in attendance, no adjournment or postponement shall be granted without examining them, except for special reasons to be recorded in writing.

1. Para. 12.2,supra.

2.Section 309, cr PC, 1973.

12.8A. Practice of not producing all material witnesses on one date criticized.-

It has been brought to the notice of the Commission that the police agency quite often deliberately refrains from producing all material witnesses before the magistrate on one date, as it wants to know the trend of the defence case as manifested by the cross-examination of the first witness.

The production of other witnesses held up to a later date with a view to make up lacunae in prosecution evidence during the intervening period. This practice of deliberately not producing all material witnesses on one date of hearing, in our opinion, is not only unfair and not warranted by the provisions of the Code of Criminal Procedure, it also results in prolongation of the trial.

12.8B. Traffic offences.-

In one metropolitan city, the pending file in the, court of magistrates is 3,33,000. Out of them, over 3 lacs of cases relate to traffic offences, while about 27,000 cases relate to municipal offences. All these cases are to be tried summarily. Some of the cases are more than one or two years old. The delay in the disposal of these cases it attributed to the fact that the police agency which is entrusted with the task has not been able to get service effected upon the accused.

Some of the accused persons tried for traffic offences, were cyclists who, it is stated, did not state correctly their names and addresses, and effecting service upon them have been difficult. Another reason for delay is stated to be the diversion of the police constables, entrusted with the task of getting service effected to other duties relating to law and order.