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This article was written by Nishtha Pandey (batch 2023), from Dr. Ram Manohar Lohiya National Law University, Lucknow. This article describes the provisions present under the Criminal Procedure Code, 1973, regarding the rules of evidence.

Introduction

Evidence is presented in the legal cases to prove the veracity of the arguments in a court of law. The state has to prove guilt beyond a reasonable doubt, while the defendant has to present evidence to challenge the state’s case. Each side should have the opportunity to review the other side’s evidence before the trial and to object to the introduction of certain evidence before or during the trial.

Scope

The rules of evidence present under the CrPC are applicable throughout India (except a few areas). The provisions present under this have a broad scope and are also applicable to the witnesses from a foreign country, subject to a few conditions.

Commission for the examination of witnesses

Dispensing with the attendance of witnesses by issuing a commission for his examination

When in the course of the inquiry or the trial, the judge or the Magistrate thinks that the presence of the witness is necessary for proper dispensation of justice but the attendance of the witnesses would incur delay and expenses which would be unreasonable, then the court may dispense the presence of the witness and it will then issue a commission that would ensure the examination of the witness according to the provisions of this code. Moreover, if it is necessary for the proper dispensation of justice to examine the president and vice president or governor of the state or administrators of the union territory, then the commission for such examination shall be issued.

It is also mentioned that where the court issues a commission for the examination of the witness, then the court can ask for a reasonable amount for the expenses that would incur during such examination like the pleader’s fee etc.

Important Witness

It is a rule that the witness on whose testimony the entire case is built must be examined and the examination on the commission must be restricted to only on those cases where the witnesses cannot come or if he can then it will cause unreasonable delay or expenses. However, it is important to note that the complainer cannot be examined on commission.

Foreign witnesses

The criminal courts have wide power to examine a foreign witness, provided the evidence of such witness is necessary. If the foreign witness is unwilling to come then he can be examined on commission. The court usually passes the order of the examination of the witnesses on commission when it is satisfied that not only it is necessary but also it is to be enforceable. The court can also refuse to extend the time when the reciprocal agreement for the examination of the witness.

To whom commission is given?

Under Section 285 of the CrPC, guidelines as to who shall be given the commission are given, which are:

  • If a witness is within the territories to which this Code extends the commission shall be directed to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, within whose local jurisdiction the witness is found.
  • If the witness is in India, but in an area where this Code does not extend, the commission shall be directed to the Court or officer as specified by the Central Government by way of a notification.
  • If the witness is in a place outside India but arrangements have been made by the Central Government with the Government of that country or place for taking the evidence of witnesses in relation to criminal law of that country or place, then commission will be issued in such form, directed to that Court or officer, and sent to the authority for transmission as specified through a notification issued by the Central Government.

Where the accused is to examine on commission in a foreign country then the facility of the lawyer cannot be dispensed with, in the case of accused just because he has tampered with the foreign witnesses in initial stages.

Moreover, the court passes the order for the examination of witnesses in commission when the court is satisfied not only about the necessity of such evidence but also about the effective enforceability of commission of examination of witnesses.when court finds that there are no reciprocal arrangements in existence it is not inclined to make any order.

Execution of commission

Under Section 286 of the Code, upon the receipt of the Commission, the Chief Metropolitan Magistrate, or Chief Judicial Magistrate, can summon the witness before them or go to the place where the witness is, and shall take down his evidence in the same manner, and exercise the same powers, as in trials or warrant cases under the CrPC.

Return of commission

After any commission issued under Section 284, which talks about the dispensation of the attendance of witnesses, and it has been executed, then it shall be returned along with the evidence of the witnesses examined under the commission, to the Court or Magistrate issuing the commission, its return and the deposition shall be open at all reasonable times for the parties to inspect, is subject to all just exceptions, present in the evidence in the case by either party and it shall also form part of the record.

Any deposition that is taken, if satisfies the conditions present in Section 33 of the Indian Evidence Act, 1872, may also be received as a piece of evidence at any later stage of the case before another Court.

Execution of foreign commission

As per Section 290 of the Code, Sections 286, Section 287 and Section 288 apply to the execution of its commission and also its return shall also apply to the commission issued by any Court, Judge or Magistrate in the same way as they apply in Section 284 of the Code.

The Courts, Judges and Magistrates mentioned above are:

  • One who has jurisdiction at a place in India, where the scope of this Code does not extend and Central Government may specify in this regard.
  • The one who is practising outside India in a country which is specified by the Central Government by way of notification and such Court, Judges and Magistrate should be competent to issue commission and execute it on the basis of the criminal law prevalent in the country.

Adjournment of proceeding

Under Section 289 of the CrPC, it is mentioned that in every case where the commission is given under Section 284, then the trail, inquiry or other proceedings can be suspended for a time which is sufficient for the execution of the commission and even its return. 

Several cases have laid down that the taking of evidence on commission in criminal cases should be used in a very restricted manner, which is in extreme cases of delay, expense or inconvenience, and also in the case of a sick person or a pardanashin woman. The Rajasthan High Court in the case of Оm Prakash vs State of Rajasthan, held that a pardanashin lady is not exempted from appearance in a Criminal Court as a matter of right.

In the case of Gulabrao v. S.D. Raje, Bombay high court has held that when a witness is a complainant in a defamation suit, his attendance cannot be done by issuing a commission for his examination, merely because of the fact that he is a Minister.

The inconvenience which is considered by the Court is not only the inconvenience to the parties but also the inconvenience to the witness who is to be examined. Thus, an apprehension of arrest, or a risk to the personal safety of a witness caused by threats given by the accused, would amount to “inconvenience” in the eyes of the law. moreover, the possibility of a witness, who is a foreigner losing his job in his own country if he were to disobey his employers and come to India to give evidence, would amount to “inconvenience” as per the provisions of this code.

Special circumstances permitting evidence 

Deposition of the medical witness

Under Section 291 of the Code, the provisions regarding the deposition of the medical witnesses are present. This section only deals with the situation where the medical witness is not called at the trial, it cannot be extended to the cases where such medical witness was called and examined. 

  • The evidence given by a of a civil surgeon or other medical witnesses, taken and attested by a Magistrate in the presence of the accused, or taken on commission under this Chapter, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as a witness.
  • The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, examine any such deponent as per the subject of the evidence given by him.

This section confines itself to expert evidence that is tendered by a medical witness as such. It has no application to evidence relating to facts tendered by a person who also happens to be a medical man. The evidence must relate to medical matters only. However where the doctor is dead or unavailable, then the injury report or post mortem report is considered to be relevant and is hence admissible.

The medical man can be referred to report made by him of the post mortem but such report cannot be considered as a piece of evidence in itself. But the notes of the post mortem report made by the medical. It is important to note that the injury report and post mortem report is not substantive evidence.

Identification report by the magistrate

Under Section 291A of the Code, any document which is claimed to be a report of identification undersigned by the Executive Magistrate in respect of a person or property can be used as evidence in any inquiry, trial or other proceedings under the provisions of this Code, although such Magistrate cannot be called as a witness. However, where such a report contains a statement of any suspect or witness to which provisions of Section 21, Section 32, Section 33, Section 155 or Section 157, of the Indian Evidence Act, 1872 apply, such statement shall not be used under this Sub-Section except in accordance with the provisions of those sections.

The Court may, if it thinks fit, and shall, on the application of the prosecution or of the accused, summon and examine such Magistrate as to the subject matter of the report.

Evidence of officers of the mint

Under Section 292 of the Code, any document which is claimed to be a report under the authority of any such gazetted officer of the Mint or of the India Security Press as the Central Government may specify in this behalf, upon any matter or thing duly submitted to him for examination and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code, although such officer cannot be called as a witness.

The Court if it deems fit, can summon and examine any officer as per the subject matter of his report. However, no such officer shall be compelled to produce any records on which the report is based.

Notwithstanding the provisions of Sections, 123 and Section 124 in The Indian Evidence Act, 1872, no officer shall be permitted-

  • To give any evidence derived from unpublished official records on which the report is based;
  • To disclose the nature or particulars of any test applied by him in the course of the examination of the matter or thing.

However, this would not apply if the officer has the permission of the Master of the Mint or the India Security Press or the Controller of Stamps and Stationery.

It is to be noted that the report given by the handwriting expert is not the same as evidence and will not be admissible as unless the examination of the expert himself.

The report submitted by certain offices is good evidence, they are:

  • A chemical examiner or his assistant;
  • Chief inspector of explosives;
  • Director of the fingerprint bureau;
  • Any Mint officer.

Hence the law commission in its report proposed that a separate section should be made for the cause of these offices so that while examination they not compelled to divulge some confidential information on which the report is based.

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Report of certain Government scientific experts

Under Section 293 of the CrPC, reports of certain Government scientific experts will include:

  • Any document which is to be a report under the Government scientific experts to whom this section applies, upon any matter or thing which is submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
  • The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.
  • Where such expert is summoned by a Court and he is unable to present himself before the court, and there is no express direction by the court to be personally present then he may depute any responsible officer working with him to attend the Court if such officer is well versed with the facts of the case and can satisfactorily represent the person in Court. This section applies to the following Government scientific experts:
  1.  Any Chemical Examiner or Assistant Chemical Examiner to Government;
  2. The Chief Inspector of- Explosives;
  3. The Director of the Finger Print Bureau;
  4. The Director, Haffkine Institute, Bombay;
  5. The Director, Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
  6. the Serologist to the Government.

It is held that in case of no request form the accused of summoning any officer, the trial court can admit it in evidence and need not call the analyser. The section uses the word “may” and not “shall”. There may be circumstances in which it becomes necessary to call an analyser like in the interest of justice, but otherwise, it is not necessary to call upon the analyser every time there is an analysis to be made.

The accused has the right to call analyst but if this is done to cause a delay in the trial proceeding, then this prayer could be rejected by the Court. Hence this request of the accused must be examined and cross-examined.

No formal proof of certain documents

Under Section 294 of the Code, where any document is filed before the Court, the specifics of each document must be included in a list and the prosecution, the accused or the pleaders as per the case,  are called upon to admit or deny the veracity of such documents.

The list of documents shall be in such a format which is prescribed by the State Government.

Where the sanctity of any document is not disputed, then it will be considered as a piece of evidence in a trial or other proceedings under the provisions of this Code, without proof of the signature of the person to whom it claims to be signed, however, the Court may, in its discretion, require such signature to be proved.

Affidavit in proof of conduct of Public Servants

Under Section 295 of the CrPC, when an application is made to a Court during any inquiry, trial or any other proceedings under the provisions of this Code, and allegations are made against a public servant, the applicant, in that case, has to give evidence of the facts alleged in the affidavit, and the Court may, if it deems fit, order the applicant to produce the evidence so given.

Evidence of the formal character of an affidavit

Section 296 mentions that if any evidence given by the person is of a formal nature, the affidavit has to be used for the same and will be subject to all such exceptions be read in evidence in any inquiry, trial or other proceeding under this Code.

Moreover, the court if it thinks fit, or on the application of the prosecution or the accused, can summon and interrogate the person based on the facts of the affidavits.

The object of this section is to accelerate the disposal of cases. If however the nature of the affidavit is not of formal nature and goes to the very root of it, then the provisions of this Section would not be applicable. It is clear that the evidence to be admissible has to be properly sworn in and while appreciating the evidence the Magistrate has to apply his judicial mind and should not mechanically examine the related documents. One of the examples of formal evidence is the investigation carried out by the police, following the various rules of a formal investigation. The evidence found under this investigation need not be examined in a court of law. 

In the case of Shankaria vs the State of Rajasthan, it was held that if the witness has taken the specimen fingerprints of the accused filed an affidavit, then his non-examination is immaterial because the evidence is formal in nature and is admissible in a court of law.

Affidavits in proof of certain matters

Under Section 297 it is stated that if any affidavits had to be sworn in court then it has to be affirmed by:

  • A judge or any judicial magistrate or executive magistrate;
  • Any commissioner of oath appointed by the High Court or Sessions Court;
  • Any notary appointed under the Notary Act.

Affidavits should be confined only to the facts which he believed to be true, the deponent should also furnish the reason for the grounds of such belief, or which he could prove from his own knowledge.

The court may order any irrelevant or scandalous material to be struck out or amended.

It is important to note that if it is not mentioned as to which part of the affidavit has been sworn in and it could not be construed, from personal knowledge or from other sources then the person before whom it was presented has not certified the fact of swearing before him or that it has been explained to the deponent, then it cannot be considered as an affidavit and it has no value in the eyes of law. Affidavits not validly sworn cannot be read as legal evidence.

Verification

The verification of the affidavit is required is very important and it must be specified as to which part of the affidavit is verified as per deponent’s knowledge and which part is as per deponent’s information. Where the whole of the affidavit has been verified on both knowledge and information then such an affidavit is not valid and cannot be taken into consideration. Moreover, if the verification is not done as per the rules of the Code, and will be considered as evidence.

Proof of previous conviction or acquittal

Under Section 298 of the Code, if in inquiry, trial or other proceedings any previous offence of the person could be proved in addition to any other mode present in the law. This could be proved by way of:

  1. Under the officer who was in charge of all the certified documents in which the acquittal and conviction of the accused have taken place.
  2. In case of the presence of the certificate which is signed by the officer in charge of the jail in which the punishment or part of it was undergone or by warrant under which the punishment was suffered. Along with this the identity of the accused along with the accused or convicted. It could be proved by way of fingerprints (for example)

This section provides a special mode through which the previous convictions or acquittals could be proved. A previous conviction must be proved strictly in accordance with the law and unless proved it cannot be taken into consideration by any court of law. Moreover, it was held that the examination of the accused with respect to proving the previous convict is inadmissible.

Mere admission of the accused is not sufficient to prove conviction. Although the name of the convict is present in the affidavit it will not absolve the prosecution from its duty to prove the previous convictions of the accused.

Record of evidence in the absence of the accused

Under Section 299 of the CrPC, it is stated that if it can be proved that an accused person has been absconded and that there is no immediate prospect of arresting him, the Court which competent to try such person for the offence complained of can in his absence, examine the witnesses produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into or trial for the offence with which he 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.

Moreover, if it appears that an offence punishable with death or imprisonment for life has been committed by some unknown person, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence if the deponent is dead or incapable of giving evidence or beyond the limits of India.

It is clear under the section that the Court under which the proceedings are recorded or satisfactorily proved that the accused has absconded and there no prospect of arresting him immediately, in case no such order is recorded then it is enough if the court is satisfied as to such requirements. The court must also record cogent reasons for the same (for example the person was dead, incapable or could not do it without unreasonable delay or expenses) Moreover “absconding” does not mean to leave one residence, if a person commits a crime and later leaves the country, then he shall be deemed to have absconded as far as the laws of the country would be applicable.

Trial Of Absconding Accused

The evidence which is recorded against and absconder accused can be examined when he is apprehended later and can be tried even in his absence from the court. The provision is meant to protect in the situations when there are many accused that need to be tried and few of them absconded, so avoid any undue delay of the other accused. It is valid to use the evidence of the accused present, on the accused who are absconded when they are later held. This provision is however against the general provisions that the evidence must be read in the presence of the accused, but here the defence is that it is the fault of the accused to participate in the court.

The court has to ensure the identity of the absconder when he is later apprehended, and he was convicted for the crime of which the evidence was produced.

The section does not give power to the Magistrate to delete the name of the absconder. The magistrate must only satisfy himself that the accused has absconded and there is no likelihood of his apprehension.

The evidence recorded at the time when the accused has not appeared and the witness could be re-examined can not be recorded, even with the permission of the accused.

Conclusion

The provisions of the Criminal Procedural Code,1973 provides for the rules that are to be followed in cases of evidence in the criminal suit. The provisions mentioned for the purpose of evidence are very broad and are applicable even on the witnesses who are residing abroad. These provisions also take in its ambit the Courts, Magistrates or Judges that are present outside India. The central government can by way of a notification ordering the applicability of this code in the areas which are not under the scope of the CrPC. these are special rules of evidence that are applied in the case of medical man, mint, absconder etc.

References


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