Report No. 47
9.10. Disclosure of case by the accused.-
One special aspect in which we should like to go beyond the scheme of the West Bengal Act1 in order to secure effective trial of the offences in question, may now be mentioned.
1. Para. 9.9, supra.
9.11. Under the existing procedure applicable to criminal trials, the prosecution is expected to disclose its case in detail from the very outset,-as is evident from the elaborate legislative provisions governing the form and content of the charge as contained in the Code of Criminal Procedure, and from the right conferred by that Code on the accused to a copy of all statements and documents which led to the initiation of the proceedings. But the accused is entitled to keep totally silent until he enters on his defence. The statutory provision requiring the court to question the accused for the purpose of explaining the evidence against him1 does not operate until the examination of the prosecution witnesses is over.
Whether this position in general should be disturbed in ordinary criminal trials is not a matter with which we are now concerned; but it is, in our opinion, necessary to treat social and economic offences on a different footing. Considerable amount of time, money and energy are usually spent in the investigation and prosecution of these offences, and it is but proper that the prosecution should know the essentials of the case of the accused so that, if necessary, the prosecution can prepare itself to meet the pleas raised by the accused. Fair trial pre-supposes that both parties should be aware of the case which they have to meet.
We are not unaware of the balance of advantage which the State has against the accused in a criminal prosecution. Nor do we under-rate the importance of the constitutionally guaranteed privilege against self-incrimination. But we think that a provision calling upon the accused to make a statement of his case after the charge is framed and copies of the statements and documents supplied to him would not be repugnant to either of these two considerations. There will be neither compulsion nor pressure towards self-incrimination. There will merely be an opportunity to the abused to make a disclosure of his defence, at a stage earlier than that contemplated by section 342, Code of Criminal Procedure.
1. Section 342, Criminal Procedure Code.
9.12. It is of interest to note in this connection that in England, the accused is now required to raise plea of alibi at the very outset1.
1. Section 11, Criminal Justice Act, 1967 (English).
9.13. The position in Scotland1 is of greater interest.
The defence is obliged to give notice not less than two days before the second diet (that is, the trial diet) of any special defence (alibi, self-defence, insanity, asleep when crime committed, or crime committed by another person named and designed). If the accused intends to attack the character of a person whom he is charged with injuring, say to accuse of immorality a woman whom he is alleged to have raped, or to accuse a person whom he is said to have assaulted of quarrelsome disposition, he must likewise give notice of this line of defence. Further, three days before the trial the defence must provide particulars of witnesses and productions (other than those on the Crown List on which the defence intends to rely.
The accused in Scotland2 is cited to appear at two diets, the first not less than six days after service of the indictment, the second not less than nine days after the first diet. The first diet, in any event, in solemn procedure is always in the sheriff court when the sheriff receives the plea of the panel (or accused). A plea in bar of trial should be stated at this stage. The sheriff notes the plea, recording any preliminary pleas and also whether the accused pleads "guilty" or "not guilty". If he pleads "guilty" there may be resort to special procedure to expedite passing sentence. The second diet, according to the gravity of the alleged crime, takes place either in the sheriff court or before the High Court; and if in the latter, the High Court may review the proceedings of the first diet before the sheriff.
1. T.B. Smith Scotland, The Development of its Law and Constitution (192), p. 224.
2. T.B. Smith Scotland, The Development of its Law and Constitution (192), p. 225.
9.20. Although what we are recommending goes further than the English1 and the Scottish1 provisions, we believe that is justified on principle, having regard to the name of the offences under inquiry and the magnitude of the danger posed to the national economy by them.
We, therefore, recommend the insertion of a provision on the following lines:-
(1) In every trial for an offence under this Act, the court shall, after the charge is framed,-
(a) direct the prosecution to furnish to the accused (or, where there are more accused than one, to each of them separately), a copy of the charge and the documents upon which the prosecution proposes to rely and of which copies have not been already furnished to the accused, and
(b) for the purpose of ascertaining the case of the accused, call upon the accused to make a statement orally or in writing signed by him, touching upon all the facts set out in the charge and in the documents of which copies have been furnished to the accused: Provided that where the court has dispensed with the personal attendance of the accused, the court may permit him to present a written statement signed by him through his pleaders.
(2) No oath shall be administered to the accused when he is examined under sub-section (f).
(3) The accused shall not render himself liable to punishment by refusing to make such statement or by making a false statement.
(4) The statement made by the accused or the failure to make a statement on all or any of the matters referred to sub-section (1) may be taken into consideration in such trial and put in evidence for or against him in any other inquiry into, or trial for any other offence which such statement may tend to show he has committed.
(5) Where the court has called upon the accused to make a statement under this section, the provisions of section 342 of Code of Criminal Procedure, 1898, shall not apply, except as regards matters which, in the opinion of the court, had not been raised and communicated to the accused previously and in respect of which the accused should be allowed an opportunity to explain the circumstances appearing against him.
(6) Where the accused has stated his case under this section, he shall not ordinarily be allowed to go beyond that case except with the leave of the court.
1. Para. 9.18, supra.
2. Para. 9.19, supra.