Criminal Law Reforms: Amicus Curiae Submits Draft 'Criminal Rules Of Practice' Before SC [Read Report]

A division bench of the Supreme Court comprised by Justice SA Bobde (now CJI) and Justice L Nageswara Rao, while hearing a criminal appeal noticed certain inadequacies in the procedure followed during criminal trials throughout the country. The bench also noted the diversity in practice rules across all the high courts and therefore suggested that all the states must come to a consensus to bring uniformity of practice.

Consequently, vide orders dated November 7, 2017 and February 20, 2018 in suo moto proceedings titled In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. State of Andhra Pradesh & Ors., the bench appointed the above named Advocates as amici and directed the all the state governments and high courts to submit their responses on the issue.

Consultation & Participation

Subsequently, after receiving responses from 15 States/Union Territories and 21 High Courts, and after assessing written replies to the consultation papers evolved on the basis of the said responses, a Colloquium was convened by the amici on March 30, 2019, in the presence of representatives from 7 High Courts, 4 state governments and police departments of 3 states.

The Draft Rules to ensure uniformity of practice have been prepared in line with the suggestions made by all the stakeholders in the abovementioned process, recognizing the diverse practices amongst the various States and High Courts while also ensuring that the Draft Rules are compliant with the CrPC.

It is pertinent to note however that the Colloquium was not attended by any representative from states like UP, Bihar, Gujarat, Rajasthan, Maharashtra, etc. covering wide area of landmass and possessing substantial amount of population.

The participating High Courts included the Calcutta High Court, Delhi High Court, High Court of Himachal Pradesh, Jharkhand High Court, Kerala High Court, High Court of Madras, Meghalaya High Court and High Court of Punjab & Haryana.

Inter alia, the Colloquium was also attended by representatives from Andaman and Nicobar Islands, Nagaland, Sikkim and Tamil Nadu and by representatives from Police Departments of Jharkhand, Punjab and Tamil Nadu.

Draft Rules

Moving on, the Draft Rules were submitted before the Supreme Court on March 5, 2020. They are spread across 5 Chapters containing detailed suggestions under 19 heads. The same have been reproduced concisely below:

Chapter I: Investigation

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

Every Medico Legal Certificate, Post Morton Report shall contain a printed format of the human body (both frontal and rear view) on its reverse and injuries, if any, shall be indicated on such sketch.

Photographs and video graphs of post mortem in certain cases

In case of custodial deaths, the IO shall inform the hospital to arrange for photographs or videography for conducting the post-mortem examination of the deecased. Such photographs or videography shall be done either by a police photographer or a State nominated photographer, or by an independent private photographer in the absence of the former two.

Such photographs or videography shall be seized under a panchnama or seizure memo, for proof during Trial accompanied by certificate under Section 65B of the Evidence Act.

Scene Mahazar/ Spot Panchnama

A site plan shall be prepared by the IO by hand, indicating specified details, and it shall be appended to the spot panchnama. The same shall be followed by preparation of a 'scaled site plan' by the police draftsman and all the relevant details shall be marked in the panchnama and corrected in the site plan.

Supply of documents under Section 173, 207 and 208 CrPC

Every accused shall be supplied with statements of witness recorded under Sections 161 and 164 of CrPC and a list of documents, material objects and exhibits seized during investigation and relied upon by the IO.

Pertinently, the list of statements, documents, material objects and exhibits shall also specify the statements, documents, material objects and exhibits that are not relied upon by the IO.

Chapter II: Charge

The order framing charge shall be accompanied by a formal charge in Form 32, Schedule II, CrPC to be prepared personally by the Presiding Officer after complete and total application of mind.

Chapter III: Trial

Procedure for Recording Evidence

The deposition of witnesses shall be recorded in typed format in both the language of the witness as well as in English and will be read over by the Presiding Officer without any exception.

Further, hard copy of the testimony so recorded duly signed will be a true copy by the Presiding Officer/court officer and it 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 Officers shall be trained in the local languages, on the request of the Presiding Officer.

The Presiding Officers will not record evidence in more than one case at the same time.

Format of Witnesses

The deposition of each witness shall be recorded dividing it into separate paragraphs (or in question answer format where necessary) assigning paragraph numbers, naming Prosecution witnesses as PW1 etc., Defence witnesses as DW1, etc. and Court witnesses as CW1, etc.

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

Objections by either the prosecution or the defence counsel shall be taken note of and reflected in the evidence and decided expeditiously in accordance with the law.

Exhibition of material objects and evidence

To easily locate witness through whom a document was introduced in evidence, the exhibit number shall show the witness number of such witness; if an exhibit is marked without proper proof the same shall be indicated by showing in brackets (subject to proof).

Prosecution exhibits to be marked Exhibit P1, etc., Defence exhibits as Exhibit D1, etc., Court exhibit as C1, etc. and Material objects as MO1, etc.

Subsequent references to Accused, Witness, Exhibits and Material Objects

After framing of charges, 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 lay the witness.

After recording the deposition of witnesses, marking of the exhibits and material objects, while recording deposition of other witnesses, the witness, exhibits and material objects shall be referred by their numbers and by names or other references.

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 the complaint or police report.

References to statements under Section 161 and 164 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 it is not possible to extract the relevant part as aforesaid, the Presiding Officer, in his discretion, shall indicate specifically the opening and closing words of such relevant portion, while recording the deposition.

In such cases, mere the relevant portion is not extracted, the portion shall be distinctly marked as prosecution or defence exhibit as the case may be.

The aforesaid rule applicable to recording of the statements under Section 161 shall mutatis mutandis apply to statements recorded under Section 164 of the CrPC, whenever such portions of prior statements of living person's are used for contradiction/corroboration.

Omnibus marking of the entire statement under S. 161 and 164 CrPC shall not be done.

Marking of Confessional Statements

The Presiding Officers shall ensure that only admissible portion of Section 8 or Section 27 Indian Evidence Act, 1872 is marked and such portion alone is extracted on a separate sheet and marked and given an exhibit number.

Chapter IV: Judgment

Every judgment shall start with a preface showing the names of parties as per Form A to the Rules, tabular statement as per Form B to the Rules and an appendix giving 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.

Further, in compliance with Section 354 and 355 CrPC, the judgments shall contain the points for determination, the decision thereon, and the reasons for the decision.

In case of conviction, the judgment shall separately indicate the offence involved and the sentence awarded. In case 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.

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

The judgment shall be written in paragraphs and each paragraph shall be numbered in serial. The Presiding Officers may, in their discretion, organize the judgment into different sections.

Chapter V: Miscellaneous

Bail

The application for bail must ordinarily be disposed off within a period of 3 to 7 days from the date of first hearing. If the application is not disposed of within such period, the Presiding Officer shall furnish reasons thereof in the order itself. Copy of the order and the bail application must be furnished to the accused on the date of pronouncement of the order itself.

The Presiding Officer may in an appropriate case in its discretion insist on a statement to be filed by the prosecutor in charge of the case.

Separation of Prosecutors and Investigators

The State Governments 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 as expeditiously as possible, and in particular when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined unless court finds adjournment of the same beyond the following day to be necessary for reasons to be recorded. (Section 309(1) CrPC)

After the commencement of the trial, if the court finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded postpone or adjourn the same on such terms as it thinks fit, for such time as it, considers reasonable. If witnesses are in attendance no adjournment or postponement shall be granted, without examining them, except for 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 completed. A sessions case once posted should not be adjourned unless that is unavoidable, and once the trial has begun, it should proceed continuously from day to day till it is completed. 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.

Advocates A Karthik, Mehaak Jaggi and MV Mukunda also rendered assistance in preparation of the Draft Rules.

Case Details:

Case Title: In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials

Case No.: Suo Moto Writ (Crl) No. 1/2017

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