Mode Of Taking Evidence Under Code Of Criminal Procedure, 1973

Coverage of this Article

KEY TAKEAWAYS

-Modes of recording evidence before the Magisterial Courts, Sessions Courts and the High Courts.

INTRODUCTION

-The system of criminal trial envisaged by the Code of Criminal Procedure, 1978 is the adversary system based on the accusatorial method. Under this system, the prosecutor contending on behalf of the State or the people accuses the defendant i.e.

RECORD OF EVIDENCE IN TRIAL BEFOR A COURT OF MAGISTRATE-

-Trials by a court of Magistrate can be further divided in two types-

1. Trial by summons
2. Trial by warrants

RECORD OF EVIDENCE IN SUMMONS CASES[Section 274]

-In the summons trials, the Magistrate is required to make a memorandum of the substance of the evidence of a witness in the language of the court.

RECORD OF EVIDENCE IN WARRANT CASES [Section 275]

-The Magistrate trying the warrant cases, as he proceeds with the examination of the witnesses, shall note down the evidence of each witness in writing.

RECORD OF EVIDENCES IN SESSIONS TRIALS [Section 276]

-Section 276(1) provides that as the examination of a witness proceeds, the presiding judge is required to jot down in writing the evidence of such witness.

RECORD OF EVIDENCE IN HIGH COURT [Section 283]

-The code leaves it upon the respective high courts to prescribe the manner in which the evidence of witnesses is to taken down in cases coming before them.

ALL EVIDENCES TO BE RECORDED IN THE PRESENCE OF THE ACCUSED

-Section 273 makes it imperative that all the evidence must be taken in the presence of the accused.

CONCLUSION

-The modes prescribed under part XXXIII of CrPC are wide enough to define a mechanism for recording of evidences in different types of trials as envisaged by the Code.

KEY TAKEAWAYS

• Modes of recording evidence before the Magisterial Courts, Sessions Courts and the High Courts.
• Certain attributes of fair trial incorporated in Part XXXIII-A of the Code of Criminal Procedure, 1973.

INTRODUCTION

The system of criminal trial envisaged by the Code of Criminal Procedure, 1978 is the adversary system based on the accusatorial method. Under this system, the prosecutor contending on behalf of the State or the people accuses the defendant i.e. the accused of the commission of some crime and the law expects him to prove his case beyond reasonable doubt, in order to succeed. The law, while keeping in line with the notion of fair trial, also provides fair opportunity to the accused to defend himself. In order to either support their claims or to rebut the opposite party’s claims, both the parties adduce evidences before the court. Evidences form a vital part of the trial as the final judgement is based on the same. In view of the above vitality of evidences, it becomes utterly important to have a uniform and mandatory record of the evidences as and when they are adduced before the courts. Section 272 to Section 283 of Part A of Chapter XXIII- A of CrPc deal with the mode of taking and recording of evidence during inquiries and trials.

The present article deals with the mode prescribed by the Code for recording evidences in trials conducted before the following courts-

1. Magisterial Court
2. Court of Sessions
3. High Court

RECORD OF EVIDENCE IN TRIAL BEFOR A COURT OF MAGISTRATE-

Trials by a court of Magistrate can be further divided in two types-

1. Trial by summons
2. Trial by warrants

RECORD OF EVIDENCE IN SUMMONS CASES[Section 274]

In the summons trials, the Magistrate is required to make a memorandum of the substance of the evidence of a witness in the language of the court. It is further provided that if the Magistrate is unable to comply with the above requirement, he can cause the memorandum to be made in writing or from his dictation in open court[Section 274(1)]. The Magistrate shall then sign the memorandum [Section 274(2)]. Section 280 also applies to the summons trials and casts upon the Magistrate the requirement to record the remarks respecting the demeanour of the witness.

In S. Ramachandra v. State of Karnataka [1979 Cri LJ (NOC) 183] it was held that ‘the Magistrate is under a legal duty to examine witnesses and to make a memorandum of the substance of their evidence in the language of the court.’

It is upon the State Government to determine, for the purpose of this code, the language of the courts other than High Court of such state. [Section 272]

RECORD OF EVIDENCE IN WARRANT CASES [Section 275]

The Magistrate trying the warrant cases, as he proceeds with the examination of the witnesses, shall note down the evidence of each witness in writing. The Magistrate is either required to take down the evidences by himself or by his dictation in open court or in case he is unable to do so due to his physical or other incapacity, can get the same done through any officer of the court as he deems fit.[Section 275(1)] In the latter case, the Magistrate is also required to record reason.[Section 275(2)]It is up to the Magistrate to either record the evidence in narrative form or in question answer form. [Section 275(3)] The Magistrate shall then put his signature on the evidences so recorded. [Section 275(4)] Here also, Section 280 applies and remarks respecting the demeanour of the witnesses are required to be recorded.

RECORD OF EVIDENCES IN SESSIONS TRIALS [Section 276]

Section 276(1) provides that as the examination of a witness proceeds, the presiding judge is required to jot down in writing the evidence of such witness. He can do so either by himself or by his dictation in open court. Alternatively, the judge may appoint any office of the court who will proceed to record the evidences, under the direction and superintendence of the presiding judge. Clause 2 of the same section further requires such evidence to be ordinarily recorded in the form of a narrative. However, the presiding judge may exercise his discretion in the matter and opt for question and answer form instead. The presiding judge is also required to sign the evidences so recorded [Section 276(3)]. Section 280 of the code further imposes a mandate on the presiding judge to make a record of remarks (if any) that are in his opinion material respecting the demeanour of the witness under examination.

In the case of warrant trials and Sessions trial, the witness can either give the evidence in the language of the court or in any other language. In the latter case, a true translation of the evidence in the language of the court is to be prepared and is then required to be signed by the Magistrate or the Sessions Judge, as the case may be. [Section 277]

The code provides further procedures to be employed after the recording of evidences in case of Warrant trials and Sessions trials is completed through Section 278. It provides that the evidence so recorded shall be read over to the witness. The presence of the accused or his pleader is mandatory while the evidence is read out. [S. 278(1)] Clause 2 of the section deals with the circumstances where the witness objects to correctness of any part of the evidence. The Magistrate or the presiding judge, as the case may be, will make a memorandum of objection raised by the witness.

RECORD OF EVIDENCE IN HIGH COURT [Section 283]

The code leaves it upon the respective high courts to prescribe the manner in which the evidence of witnesses is to taken down in cases coming before them.

ALL EVIDENCES TO BE RECORDED IN THE PRESENCE OF THE ACCUSED

Section 273 makes it imperative that all the evidence must be taken in the presence of the accused. In case his presence is dispensed with, his pleader is required to be present. An exception in case of a minor girl who has been subjected to any sexual offence is made by the proviso to section 273.

In Ram Singh v. R [(1951) 52 Cri LJ 99,102] the court observed that the failure to record evidence in the presence of the accused will vitiate the trial and the fact that no objection was taken by the accused is immaterial.

However, it is to be pointed out that in the case of State v. Ananta Singh[1972 Cri LJ 1327] it was held that the obligation cast by the provision is not absolute in character i.e., its requirement can be dispensed with in cases where the accused by his own conduct makes recording of evidence in his presence an impossibility.

The right created by section 273 is further complimented by section 278 which requires that the reading of evidence shall be done in presence of the accused. However, if any evidence is given in a language not understood by the accused person, such evidence should be interpreted to the accused in the language understood by him in the manner provided in section 279.

CONCLUSION

The modes prescribed under part XXXIII of CrPC are wide enough to define a mechanism for recording of evidences in different types of trials as envisaged by the Code. Various provisions (like, presence of accused while recording of evidences etc.) incorporated in the present part of the Code are laid down in a way so as to help achieve the primary object of criminal procedure i.e. ensuring a fair trial of the accused person.