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Report No. 198

2.2 Code of Criminal Procedure, 1973: Existing Law

In the Code of Criminal Procedure, 1973, section 327 provides for trial in open court. Further, for ensuring a fair trial, elaborate provisions have been made in section 207 (supply of copies of police report and other documents to the accused), section 208 (supply of copies of statements and documents to accused in other cases triable by Court of Sessions), and section 273 (evidence to be taken in the presence of accused). Section 299 refers to the right of the accused to cross-examine the prosecution witnesses.

These provisions are intended to guarantee an open public trial with a right to the accused to know the evidence gathered by the prosecution and also a right to cross-examination to safeguard the interest of the accused. This is so particularly because the accused is presumed to be innocent unless proved guilty beyond reasonable doubt.

2.2.1 Section 273 is not without exceptions. The Supreme Court referred to section 273 of the Code of Criminal Procedure, 1973 in Sakshi v. Union of India: 2004(6) SCALE 15 and observed that in spite of section 273 which requires evidence to be taken in the presence of the accused, it is open to the court to examine the witness using a video screen in as much as video recorded evidence has now been held to be admissible by the Supreme Court in State of Maharashtra v. Dr. Praful B. Desai 2003(4) SCC 601. We shall be referring to this case in detail in Chapter V, para 5.17.

2.2.2 Record of evidence in absence of the accused may be taken under section 299 of the Code. No doubt, this section empowers the Magistrate to record the deposition of certain witnesses in the absence of the accused. Such recording of evidence in absence of an accused has been provided only where an accused person has absconded and there is no immediate prospect of arresting him.

In such cases, the competent court may examine the witnesses produced on behalf of the prosecution and record their depositions and such depositions may be given in evidence against him on the inquiry into or trial for the offence with which the accused is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

2.2.3 Section 200 of the Code of Criminal Procedure provides that a Magistrate shall examine upon oath the complainant and the witnesses present, if any. Under section 202 (2) of the Code of Criminal Procedure, in an inquiry, the Magistrate may, if he thinks fit, take evidence of witnesses on oath. Moreover, section 204 (2) of the Code provides that no summons or warrant shall be issued against accused unless a list of the prosecution witnesses has been filed. For the examination of witnesses, the Magistrate shall fix a date under section 242 in case of warrant cases instituted on police report and under section 244 in cases other than those based on police report.

2.2.4 Further, as to right of cross-examination by the accused, it would be evident on a reading of section 299 of the Code that while the right to crossexamine the prosecution witnesses is normally guaranteed, there are certain exceptional circumstances in which an accused may be denied his right to cross-examine a witness of the prosecution in open court.

2.2.5 In addition to section 299 of the Code, reference may be made to subsection (6) of section 173 of the Code. Section 173 which deals with the report of the police officer on completion of investigation, provides under sub-section (5) (b), that the police officer shall forward to the Magistrate along with his report the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

However, sub-section (6) of section 173 provides that if the police officer is of opinion that any part of any such statement is not relevant to the subjectmatter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from copies to be granted to the accused and stating his reasons for making such request.

Thus, while the requirement of providing information to the accused is the rule, the exception to the extent permitted as above under section 173 (6) is limited only to a part of the statement made under section 161 of the Code and not to the entire statement deposed to by any person including a prosecution witness under section 161 of the Code.

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