(S.A. Bobde, C.J. and L. Nageswara Rao and S. Ravindra Bhat, JJ.)
In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials _______________________ Petitioner;
v.
State of Andhra Pradesh and Others ________________ Respondent(s).
Suo Moto Writ (Crl) No.(s) 1/2017, decided on April 20, 2021
The Order of the court was delivered by
Order
1. This suo motu proceeding under Article 32 was initiated during the course of hearing of a criminal appeal1. The Court noticed common deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings as well as in the disposal of criminal cases and causes. These related, amongst others, to the manner in which documents (i.e. list of witnesses, list of exhibits, list of material objects) referred to are presented and exhibited in the judgment, and the lack of uniform practices in regard to preparation of injury reports, deposition of witnesses, translation of statements, numbering and nomenclature of witnesses, labeling of material objects, etc. These very often lead to asymmetries and hamper appreciation of evidence, which in turn has a tendency of prolonging proceedings, especially at the appellate stages.
2. The Court had noticed that on these prominent aspects, rules appeared to have been formulated by certain High Courts, whereas many other High Courts have not framed such rules. This has led to a lack of clarity and uniformity in regard to the presentation of trial court proceedings and records, for the purpose of appreciation at the High Court level and eventually, before this court.
3. By an elaborate order dated 30.03.2017, this Court noted various salient aspects and flagged inadequacies in the practices and rules of High Courts by taking a cue from existing rules in some High Courts2. After noticing about 13 issues, the Court felt the desirability of a uniform approach – in description of exhibits, manner and description of recording of statements of witnesses, labeling of material objects, and so on. The Court therefore, issued notice to the Registrar Generals of all High Courts, Chief Secretaries and Administrators of States and Union Territories as well as Advocates General, Additional Advocates Generals and Senior Standing Counsel of all states and Union Territories. By a later order dated 07.11.2017, the Court appointed Mr. Sidharth Luthra and Mr. R. Basanth, Senior Advocates as amici curiae. On 20.02.2018, Mr. K. Parameshwar, learned counsel was also appointed as amicus curiae to assist the senior counsel who were earlier appointed as amici curiae. All concerned State Governments and Union Territories as well as High Courts through their Registrar Generals were called upon to submit their responses along with suggestions.
4. By January 2019, 15 States/Union Territories and 21 High Courts had filed responses before this court. Based upon these responses, the amici curiae evolved a consultation paper, which inter alia contained draft rules. The draft rules were circulated to all parties by a letter dated 18.02.2019. Written responses were invited from stakeholders and a colloquium was convened for this purpose in New Delhi at the India International Centre, on 30.03.2019. The colloquium was attended by representatives of different States/Union Territories and their respective High Courts.
5. After considering the suggestions made during the colloquium, the amici curiae submitted the “Draft Rules of Criminal Practice, 2020” for the consideration of this court. While framing Draft Rules, due care was taken to ensure uniformity and at the same time to recognize the diverse practices among the various state authorities and High Courts in the country. The draft rules are compliant and not in any way repugnant to the Code of Criminal Procedure, 1973. Many suggestions made as practice directions reflect the mandatory provisions of the Code of Criminal Procedure, 1973.
6. By later orders dated 27.10.2020 and 19.01.2021, the High Courts were once again directed to file their responses to the Draft Rules of Criminal Practice, 2020. Pursuant to that order, all High Courts filed their responses and the summaries of the responses.
7. During the hearing, this court noticed that most of the suggestions had been agreed except in regard to a few aspects. Some High Courts, while accepting the Draft Rules also sought to elaborate and supplement them, which is a welcome step.
8. The High Courts unanimously welcomed the suggestion of separating the prosecution from the investigation, (i.e. Rule 18 in the Draft Rules, 2020) which provides that a separate team of lawyers, distinct from Public Prosecutors must advise the police during the investigation. However, as pointed out by many High Courts, this is a step that should be actively pursued by the State Governments. Similarly, the High Courts welcomed the uniform manner in which body sketches, spot panchnamas etc. are to be brought on record (Draft Rules 1-4). However, they state that the onus for the implementation of these Rules is on the investigation agencies.
9. This court is of the opinion that a perusal of the responses indicates that the High Courts have indicated their reservations to certain draft rules. These are as follows:
(1) translations of deposition [Draft Rule 6(i)(ii)] – High Court of Madhya Pradesh, Kerala, Tamil Nadu.
(2) references to accused/witnesses/material objects (Draft Rule 9) – Allahabad, MP, Tripura, Kerala, Calcutta – The High Courts have suggested that along with the numbers assigned to the witness, accused etc., names may also be used to avoid confusion.
(3) The rule requiring day to day trial (Rule 19(i)) – Madhya Pradesh, Manipur, Tripura.
10. During the hearing of these proceedings, the court took into consideration the viewpoints, on behalf of High Courts, where there was either a divergence in the opinion about the practice to be adopted, or some reservation.
11. The amici pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208, Cr. PC, the magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under the Cr. PC.3 for their production during the trial, in the interests of justice. It is directed accordingly; the draft rules have been accordingly modified. [Rule 4(i)]
12. It was pointed out by learned amici that the practice adopted predominantly in all trials is guided by the decision of this court in Bipin Shantilal Panchal v. State of Gujarat4 with respect to objections regarding questions to be put to witnesses. This court had termed the practice of deciding the objections, immediately as “archaic” and indicated what it felt was an appropriate course:
“It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.
When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.”
13. It was argued by amici that the procedure, whereby the courts record answers to all questions, regardless of objections, leads to prolonged and lengthy cross examination, and more often than not, irrelevant facts having no bearing on the charge or the role of the accused, are brought on record, which often result in great prejudice. It is pointed out that due to the practice mandated in Bipin Shantilal Panchal (supra), such material not only enters the record, but even causes prejudice, which is greatly multiplied when the appellate court has to decide the issue. Frequently, given that trials are prolonged, the trial courts do not decide upon these objections at the final stage, as neither counsel addresses arguments. Therefore, it is submitted that the rule in Bipin Shantilal Panchal (supra) requires reconsideration.
14. During a trial, in terms of Section 132, every witness is bound to answer the questions she or he is asked; however, that is subject to the caveat that he or she is entitled to claim silence, if the answers incriminate him or her, by virtue of Article 20(3) of the Constitution. Every judge who presides over a criminal trial, has the authority and duty to decide on the validity or relevance of questions asked of witnesses. This is to be found in Section 148 Cr. PC, which reads as follows:
“148. Court to decide when question shall be asked and when witness compelled to answer. — If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it.
In exercising its discretion, the Court shall have regard to the following considerations:—
(1) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
(2) such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
(3) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence;
(4) the Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference that the answer if given would be unfavourable”
15. Apart from Section 148, there are other provisions of the Evidence Act (Sections 149-154) which define the ground rules for cross examination. During questioning, no doubt, the counsel for the party seeking cross examination has considerable leeway; cross examination is not confined to matters in issue, but extends to all relevant facts. However, if the court is not empowered to rule, during the proceeding, whether a line of questioning is relevant, the danger lies in irrelevant, vague and speculative answers entering the record. Further, based on the answers to what (subsequently turn out to be irrelevant, vague or otherwise impermissible questions) more questions might be asked and answered. If this process were to be repeated in case of most witnesses, the record would be cluttered with a jumble of irrelevant details, which at best can be distracting, and at worst, prejudicial to the accused. Therefore, this court is of opinion that the view in Bipin Shantilal Panchal should not be considered as binding. The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness. This will result in de-cluttering the record, and, what is more, also have a salutary effect of preventing frivolous objections. In given cases, if the court is of the opinion that repeated objections have been taken, the remedy of costs, depending on the nature of obstruction, and the proclivity of the line of questioning, may be resorted to. Accordingly, the practice mandated in Bipin Shantilal Panchal shall stand modified in the above terms.
16. Counsel appearing for the states and High Courts submitted that the provision in the draft rules, requiring that trials should be conducted on a day-to-day manner, cannot be complied with. It was argued that courts have to, more often than not, postpone or adjourn cases due to non-availability of witnesses, or on account of absence of defense counsel, or the prosecutor. The learned amici submitted that given that trial begins after charges have been framed, the prosecution witnesses should be available on the dates of trial, for the simple reason that they are relied on for proving the charges. It was submitted that this court should indicate that as far as practicable, the trial court should carry out before hand, sequencing of witness deposition, in terms of eyewitnesses, other material witnesses, formal witnesses, expert witnesses etc., and also factor in some specific date or dates, so that effective depositions are recorded on every date of hearing so fixed.
17. This court is of the opinion that the courts in all criminal trials should, at the beginning of the trial, i.e. after summoning of the accused, and framing of charges, hold a preliminary case management hearing. This hearing may take place immediately after the framing of the charge. In this hearing, the court should consider the total number of witnesses, and classify them as eyewitness, material witness, formal witness (who would be asked to produce documents, etc) and experts. At that stage, the court should consider whether the parties are in a position to admit any document (including report of experts, or any document that may be produced by the accused, or relied on by her or him). If so, the exercise of admission/denial may be carried out under Section 294, Cr. PC, for which a specific date may be fixed. The schedule of recording of witnesses should then be fixed, by giving consecutive dates. Each date so fixed, should be scheduled for a specific number of witnesses. However, the concerned witnesses may be bound down to appear for 2-3 consecutive dates, in case their depositions are not concluded. Also, in case any witness does not appear, or cannot be examined, the court shall indicate a fixed date for such purpose. The recording of deposition of witnesses shall then be taken up, after the scheduling exercise is complete. This court has appropriately carried out necessary amendments to the Draft Rules.
18. It was submitted by the amici that as regards the subject matter relating to the first three Draft Rules, the state and police authorities have to carry out necessary and consequential amendments to the police manuals, and other related instructions, to be followed by each state. Counsel appearing for states and union territories have assured that suitable steps to incorporate the Draft Rules – relating to (1) Body sketch to accompany medico-legal certificate, post-mortem report and inquest report -[Draft Rule No. 1]; (2) Photographs and Video graphs of post mortem in certain cases [Draft Rule No. 2] and (3) Scene Mahazar/ Spot Panchanama [Draft Rule No. 3] would be taken at the earliest.
19. The court is of the opinion that the Draft Rules of Criminal Practice, 2021, (which are annexed to the present order, and shall be read as part of it) should be hereby finalized in terms of the above discussion. The following directions are hereby issued:
(a) All High Courts shall take expeditious steps to incorporate the said Draft Rules, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months from today. If the state government’s co-operation is necessary in this regard, the approval of the concerned department or departments, and the formal notification of the said Draft Rules, shall be made within the said period of six months.
(b) The state governments, as well as the Union of India (in relation to investigating agencies in its control) shall carry out consequential amendments to their police and other manuals, within six months from today. This direction applies, specifically in respect of Draft Rules 1-3. The appropriate forms and guidelines shall be brought into force, and all agencies instructed accordingly, within six months from today.
20. The court hereby places its appreciation and gratitude to the contributions and effort of the three amici Shri Siddharth Luthra, Shri R. Basanth (Senior Advocates) and Shri K. Parameshwar, Advocate – they gave valuable inputs and innumerable suggestions, considered all suggestions given by various stakeholders, reported to the court and made extremely useful submissions. The court also places on record its appreciation of Shri A. Karthik, Ms. Mehak Jaggi and Shri M.V. Mukunda, Advocate, who rendered valuable assistance to the amici.
21. The suo motu proceeding is disposed of in terms of the above directions.
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1 Crl.A.400/2006 & connected matters
2 Kerala Criminal Rules of Practice, 1982; Andhra Pradesh Criminal Rules of Practices and Circular Orders, 1990 etc.
3 91. Summons to produce document or other thing.
(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed-
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of 1891) or
(c) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.
4 (2001) 3 SCC 1
