Criminal Law Reforms: Amici Curiae Submits Draft ‘Criminal Rules Of Practice’ Before SC on 7th March 2020

SC: Deprivation of property right only through procedure established by Law

By an order dated 03 march 2017, the Supreme Court through the bench of Justice Nageshwar Rao and Justice Bobde (now CJI) , while taking suo moto cognizance of the issue before it noted the diversity in the practice rules across all the high courts and therefore suggested that all the states must come to a consensus to bring uniformity of practice. In pursuance to the above direction, Senior Advocate R Basant, Sidharth Luthra And Advocate K Parameshwar, amici curiae have submitted the report outlining the “Draft Rules Of Criminal Practice, 2020.”

Background:

The hon’ble Supreme Court IN RE TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS[1]V. STATE OF ANDHRA PRADESH & ORS.,while hearing criminal appeal no. 400/ 2006 noticed that there exist certain inadequacies in the procedure followed during criminal trials throughout the country. The suggestion given by Shri. R Basant, Senior Advocates was recorded which followed with the notice issued to all state governments and the respective High Courts as to whether consensus could be arrived at in order to amend the criminal rules of practice/criminal manuals to bring about uniformity of practice, by an order dated 30.03.2017.

Facts:

By order dated 07.11.2017[2] and 20.02.2018[3], Shri. R. Basant , Shri Sidharth Luthra And Shri K Parameshwar were appointed as amici curiae to assist the court. By the order of 2018 the  respective state governments and the High Courts to submit their responses to the amici curiae, who were directed to convene a meeting for vetting the responses.

Based on the feedback given by 15 states/ union Territories and 21 High Courts, the amici curiae evolved a consultation paper, which inter alia contained the draft rules, which was circulated to all parties and written responses were invited from the stakeholders and a colloquium was convened in the international center on 30. 03. 2019 which was attended by different states/ union territories and High Courts. After taking into account the suggestions, the amici curiae submit the following Draft Rules of Criminal Practice, 2020 for the consideration of the Supreme court on 7th March 2020.

Key features:

The draft contain following chapters:

Chapter 1: Investigation

Body Sketch to accompany medico legal certificate, post mortem and inquest report:

Every medico legal certificate, post mortem report shall contain a printed format of the human body on its reserve and injuries, if any, shall be indicated on such sketch.

Photographs  and video graphs of post mortem in certain cases:

1. In case of death of a person in police action [ under section 46 of CrPC ] or section 129 to 131 CrPC or death while in police custody, the investigating officer shall inform the hospital or doctor in charge to arrange for photographs or videography for conducting the post-mortem examination of deceased.

2. Photograph and videographs shall be taken either by arranging a police photographer or nominated photographer of the state government, and if not then, arrangement shall be made for independent or private photographer.

3. Such photographs or videographs shall be seized under a panchnama or seizure memo and all steps taken to ensure proper proof of such photographs/ videographs during trial.

4. The investigating officers shall ensure that such photographs and videographs, if taken electronically, are seized under a panchnama or seizure memo and steps are taken to preserve the original, and ensure the certificate under section 65B Indian Evidence Act, 1872 is taken to be proved during trial.

5. The video or photograph shall be stored on a separate memory card, accompanied by a duly certificate under section 65B Indian Evidence Act, 1872.

6. Where post-mortems are recorded in electronic form, the file containing the post-mortem proceedings, duly certified, should be placed with the memory card as an attachment unless individual memory cards are capable of being produced before court.

Scene mahazar/ spot panchanama:

The report states that a site plan of the plan of occurrence of an incident shall be appended by the investigating officer to the scene mahazar or spot panchnama.

The site plan shall be prepared by I.O by hand and shall disclose

1. The place of occurrence

2. The place where the body (or bodies) was/ were found,

3. The place where material exhibits and/ or weapons,

4. Blood stains and/or body fluids had fallen,

5. The place where bullet shells, if any, were found or have caused impact,

6. The source of light, if any and

7. Adjoining natural and man-made structures or features such as walls, pits, fences, trees/ bushes, if any and

  1. Elevation of structures and their location.

The preparation of this sketch by the investigating officer shall be followed by a scaled site plan prepared by police draftsman, if available, or such other authorized or nominated draftsman by the state government, who shall prepare the scaled site plan after visiting the spot.

The relevant details in the mahazar or panchnama shall be marked and correlated in the said site plan.

Supply of Documents under Section 173, 207 and 208 of CrPC.

Every accused shall be supplied with statement of witness recorded under above sections and a list of documents, material objects and exhibits seized during investigation and relied upon by investigating officer.

Chapter 2: Charge

The order framing charge shall be accompanied by a formal charge in form 32, schedule 2, CrPC to be prepared personally by the presiding officer after complete and total application of mind.

Chapter 3: Trial

Reading of evidence: procedure

The depositions of witnesses shall be recorded, in typed format and the record of evidence shall be prepared on computers, in the court on the dictation of the presiding officer. Proviso states that in case of language of disposition is a language other than English or the language of state, the presiding officer shall simultaneously translate the deposition either himself or through a competent translator into English, as per clause 1.

The deposition shall be recorded in the language of the witness and in English when translated as provided in clause 6 (1) except when translated into English.

The deposition shall without exception be read over by the presiding officer in court and the hard copy of the testimony so recorded duly signed to be a true copy by the Presiding Officer/ court officer shall be made available free of cost against receipt to the accused or an advocate representing the accused, to the witness and the prosecutor on the date of recording.

A translator shall be made available in each court and presiding officer shall be trained in the local language, on the request.

The presiding officer shall not record the evidence in more than one case at the same time.

Recording of evidence: format of witness:

1. The deposition of each witness shall be recorded dividing it into separate paragraphs assigning paragraph numbers.

Prosecution witness shall be numbered as PW-1, PW-2.

Similarly, defence witnesses shall be numbered as DW-1, DW-2.

The court witnesses shall be numbered as CW-1, CW-2 etc.

2. The record of disposition shall indicate the date of the chief examination, the cross examination and re-examination.

3. The presiding officers shall whether necessary record the deposition in question and answer format. Objections of the prosecution or defense counsel shall be taken note of and reflected in the evidence and decided expeditiously in accordance with law. The name and number of the witness shall be stated on any subsequent date, if the evidence is not concluded on the date on which it begins.

Exhibiting of material objects and evidence:

1. Prosecution exhibits shall be marked as Exhibit P-1,P-2 etc

Defence exhibits shall be marked as Exhibit D-1,D2 etc.

The Court exhibit shall be marked as Exhibit C-1, C-2 etc.

2. The exhibit number shall show the witness number of such witness after the Exhibit number. If an exhibit is marked without proper proof, the same shall be indicated by showing in brackets. It further states that the material objects shall be marked in seriatim as MO-1, MO-etc.

Subsequent references to accused, witness, exhibits and material objects:

The accused shall be referred to only by their ranks in the array of accused in the charge and not by their names or other references except at the stage of identification by the witness.

Marking of the exhibits and material objects shall be referred by their numbers and not by names or other references, after recording the deposition of witness.

Where witness cited in the complaint or police report are not examined, they shall be referred to by their names and the numbers allotted to them in complaint or police report.

References to statements under section 161 and 164 of CRPC:

During cross examination, the relevant portion of the statements recorded under section 161 CrPC used for contradicting the respective witness shall be extracted, if not possible, then the presiding officer shall indicate specifically the opening and closing words of such relevant portion and in such cases, if relevant portion is not extracted, the portion shall be distinctly marked as prosecution or defence exhibit as the case may be.

The aforesaid rule of Section 161 of CrPC shall be mutatis mutandis apply to statements recorded under section 164 of CrPC, in case portion of prior statements of living persons are used for contradiction/ corroboration

The marking of the entire statement under section 161 and 164 of CrPC shall not be done.

Marking of confessional statements:

The presiding officers shall ensure that only admissible portion of section 8 or section 27 of Indian Evidence Act, 1872 is marked, which is to be extracted on separate sheet and marked and given as exhibit number.

Chapter 4: The Judgment

Every judgment shall contain the following:

It should start with a preface showing the names of parties as per FORM A to the rules.

A tabular statement as per FORM B to the Rules.

An Appendix giving the list of prosecution witnesses, defence witnesses, court witnesses, prosecution exhibits, defence exhibits and court Exhibits and material objects as per FORM C to the rules.

In compliance with Section 354 and Section 355 CrPC, the Judgment shall contain:

The point or point for determination,

The decision thereon and the reason for the decision

In case of conviction, the judgment shall separately indicate the offence involved and the sentence awarded. If there are multiple accused, each of them shall be dealt with separately. In case of acquittal and if the accused is in confinement, a direction shall be given to set the accused at liberty, unless such accused is in custody in any other case.

In the judgment the accused, witness, exhibits and material objects shall be referred to by their nomenclature or number and not by names or otherwise. The number shall be indicated within brackets, wherever there is a need to refer the accused or witness by their name.

The presiding officer may in their discretion organize the judgment into different sections.

Chapter 5: Miscellaneous

Bail:

The time period of 3 to 7 day was granted for the application for bail to be disposed off from the date of hearing. If it is not disposed off within such period, the presiding officers shall furnish reasons thereof in the order itself. The copy of order and the bail application must be furnished to the accused on the date of pronouncement of the order.

The presiding officers may insist on the statement to be filed by the prosecution in charge of the case, based on his discretionary power.

Separation of prosecutors and investigators:

The state government shall appoint advocates, other than public prosecutors, to advise the investigating officer during investigation.

Directions for expeditious trial:

  • In every enquiry or trial, the proceedings shall be held expeditiously, and in case, when the examination of witnesses has begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (section 309(1) of CrPC.)
  • After commencement of the trial, if the courts find it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trail, it may do so for which reasons to be recorded, for such time as it considers reasonable. If the witnesses are in attendance no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded, in writing. ( section 309(2) CrPC)
  • Sessions cases should be given precedence over all other work and no other work should be taken up on sessions days until the sessions work for the day is complete. If for any reason, a case has to be adjourned or postponed, intimation should be given forthwith to both sides and immediate steps be taken to stop the witnesses and secure their presence on the adjourned date.
  • The report further gave a format of judgment under the heading of Form A.

Under the heading of Form B, it gave format of  date of offence, FIR, charge sheet etc. and accused details.

Form C gave details of list of prosecution/ defence/ court witnesses, list of prosecution/ defence / court exhibits.[4]Advocates A Karthik, Mehaak Jaggi and MV Mukunda also rendered assistance in preparation of the Draft Rules[5]

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[1]Suo Moto Writ (Crl) No. 1/2017
https://www.livelaw.in/top-stories/criminal-law-reforms-amicus-curiae-submits-draft-criminal-rules-of-practice-before-sc-read-report-153582

[2]https://main.sci.gov.in/supremecourt/2017/9999/9999_2017_Order_07-Nov-2017.pdf

[3]https://main.sci.gov.in/supremecourt/2017/9999/9999_2017_Order_20-Feb-2018.pdf

[4]https://www.livelaw.in/pdf_upload/pdf_upload-371013.pdf

[5]https://www.livelaw.in/top-stories/criminal-law-reforms-amicus-curiae-submits-draft-criminal-rules-of-practice-before-sc-read-report-153582?infinitescroll=1