Images are subject to copyright

About The Author

Advocate Dr. Rau P S Girwar is an esteemed advocate and has been involved in the field of law since 2010 and has contested cases in the Supreme Court of India and various high courts including the Punjab and Haryana High Court, Delhi High Court, Indore High Court and various district and sessions courts.

He has an excellence and experience in civil, criminal, constitutional and service matters and has a wide range of experiences in various matters including money laundering, narcotic and murder cases.

This article has been written with assistance of his junior Kushaatula Puhanian, who is a second year law-student studying at the Guru Gobind Singh Indraprastha University, New Delhi.

INTRODUCTION

Time change and so do men, and then the laws… crime is one of the biggest fears in a society and to control them are criminal laws with punishment. For punishing a person for the wrongs he/she committed, a proper and uniform procedure is required. India had been long lacking in a uniform procedure for investigation despite there being presence of the Code of Criminal Procedure, 1973. The Senior Advocate, Shri R Basant in order to bring the same to the notice of the Supreme Court had filed a criminal appeal 400/2006 in the Supreme Court of India whose order was given in the year 2017. After understanding the difference of investigation and trial procedure going on in different regions of India, an order has been passed by the Supreme Court in the year 2018 the Supreme Court has appointed Shri R Basant, Siddhant Luthra and K Parmeshwar as amici curiae while being assisted by other advocates to prepare a draft rules of criminal procedure and the draft of the same.

The Supreme Court has directed the High Courts to adopt the Rules of Criminal Procedure, 2020 within a period of 6 months. The SC has also directed the State Governments to co-operate if it feels that co-operation is necessary which also has to be made within six months. The apex court has directed the Union and State Government to make amendments to the police rules within six months for the same.

TIMELINE OF THE REPORT

• 2017: While deciding the criminal appeal 400/2006, the Hon’ble Supreme Court in the year 2017, after recording the suggestions of the senior advocate R Basant and noticing some of the inadequacies in the criminal trial procedure followed throughout the country, issued a notice to all the state governments and their respective high courts for consensus for the need to amend the relevant criminal rules of practice/criminal manuals for bringing uniformity in practice.
• 2018: In the year 2018, R Basant, Senior Advocate, Siddhant Luthra, Senior Advocate and Shri K Parmeshwar, Advocate were appointed as amicus curiae to assist the court for the same. The same order also directed the state government and their high courts to submit their responses regarding the criminal procedure.
• 2019: 15 states and UTs and 21 high courts had given their responses and based on their feedback, the amici curiae evolved a consultation paper which inter alia drafted rules and the same was circulated through a letter to all parties on 18.02.2019 for which written responses were invited and a colloqium (a form of academic conference) was convened for responses in the Indian International Centre on 30.03.2019.
• 2020: The amici curiae submitted the Draft Rules, 2020 for consideration of the Supreme Court which were made by R Basant, Siddhant Luthra and K Parmeswar along with assistance of A Karthik, Mehak Jaggi and MV Mukunda.

MATTERS POINTED OUT SHRI R BASANT, SENIOR ADVOCATE DURING THE COURSE OF HIS ARGUMENTS IN THE CRIMINAL APPEAL 400/2006

The contentions that were pointed out by Shri R Basant during the course of his arguments in the Criminal Appeal 400/2006 have formed the basis of these guidelines and some of the contentions mentioned have also been mentioned in The Draft Rules, 2020 for their application for future criminal investigations and cases. these have been mentioned below:

• Pernicious practice of trial judges leaving the recording of deposition to the clerk concerned and recording of evidence going on in more than one case in the same court room, at the same time, under the presence and general supervision of the presiding officer needs to disapproved strongly and discontinued forthwith.   
• The disposition of witness must be recorded, in typed format, sing computers, in court, to the dictation of the presiding officers in English wherever possible, so that readable true copies are available straightaway and can be issued to both sides on the date of examination itself.
• The deposition of each witness must be recorded dividing it into separate paragraphs assigning para numbers to facilitate easy reference to specific portions later in  the course of arguments and in judgments.
• Witnesses/ documents, material objects should be assigned specific nomenclature so that reference later becomes easy and less time-consuming. The same can be seen being followed in the Rule 62 relating to marking of exhibit and  Rule 134 relating to the list of witnesses being appended to the judgment in the Kerala Criminal Rules of Practice, 1982, Rule 66 relating to referring of the witness in the Andhra Pradesh criminal rules of practice and circular orders, 1990.
• Repetition of pleadings, evidence and arguments in the judgments and order of trial court, appellate court and revision courts should be avoided as these make the judgment cumbersome taking away the precious time of the Courts. Mechanical re-narration of the facts in the judgment of the appellate court should be avoided at any rate.
• A judgment folder should be maintained in every case file and the first paragraph in the appellate/ revision judgment should be numbered as the next paragraph after the last para in the impugned judgment catering to a better culture of judgment writing.
• The practice of some states of the investigation officer obtaining and producing the front and rear sketch of human torso showing the injuries listed in the medical documents should be uniformly insisted giving the judges a clear and surer understanding of the sites of injuries.
• The relevant portions of case diary statement used for contradicting the witness must be extracted fully in the deposition. If the same feels cumbersome, at least the opening and closing words of contradiction in the case diary number must be referred to in the deposition and marked separately as Prosecution/ Defence exhibit. The practice of marking of S.164 statement of witnesses deserved to be deprecated. The relevant portion of such prior statements of living persons used for corroboration u/s 164 of the evidence act should be marked separately and specifically.
• Deprecation of whole sale marking of confession statement of the accused person u/s 27 of the Evidence Act. Only the admissible portion must be extracted in the recovery of memos within inverted commas.
• The trial courts must be obliged to specify in the judgment, the period set off u/s 428 CRPC specifying the date and not leave it to be resolved later by the jail authorities or successor presiding authorities.

THE DRAFT RULES OF CRIMINAL PROCEDURE, 2020

INVESTIGATION

• Every medico legal certificate has to have a format of human body on its backside indicating the position and the injuries on the body.
• If the person dies by police action or dies by police custody, it would be the duty of the investigation officer to inform the hospital or doctor-in-charge for arranging photography or videography and for conducting the post-mortem of the deceased. The photographs and videos shall be taken by arranging a police officer or a nominated photographer of the state and if neither of them are available, an independent private photographer has to be arranged for the same.
• These photos and videos would be attached with the panchnama or seizure memo u/s 65B of the Indian Evidence Act, 1872.
• These photographs and videos would also be saved in a memory card which has to be accompanied by a duly certified certificate u/s 65B Indian Evidence Act, 1872.
• If the post mortems are conducted in electronic form, the file containing the post mortem proceedings are to be placed with the memory card as an attachment unless individual memory cards are not capable of being produced before the court.
• A site plan of the place of occurrence of the incident has to be appended by the Investigating Officer to the spot panchnama.
• The following are what has to be disclosed by the site plan of the spot panchnama:

(1) occurrence.

(2)  body/bodies.

(3)  material exhibits and weapons.

(4) blood stains or any other fluids.

(5) bullet shells, if any, causing impact.

(6) source of light.

(7) adjoining natural and man-made structures or features.

(8) elevation of structures and their location.

• Every accused has to be supplied with statements of witnesses that has been recorded u/s 161 and 164 and a list of documents, material objects and the exhibits seized during investigation that are relied and not relied upon.

TRIAL

• The deposition of witnesses has to be recorded in a typed format, if possible and the record of evidence has to be saved on computer, if available in the Court on the dictation of the presiding officer. If the language is one other than English, it has to be simultaneously translated by the presiding officer himself or any other competent translator into English.
• The deposition has to be read by the Presiding Officer in the Court and a hard copy of the same has to be provided free of cost to the accused or the advocate representing the accused, the witnesses and the prosecutor on the date of recording.
• A translator has to be made available in each court trained in local languages.
• The presiding officer cannot record evidence in more than one case at the same time.
•  The deposition of each witness has to be divided into separate paragraphs assigning each paragraph a specific number.
• Prosecution witness would be numbered as PW-1, PW-2… while the defence witnesses would be numbered as DW-1, DW-2…. the court witnesses would be numbered as CW-1, CW-2…
• The record of depositions would indicate the date of chief, cross and re-examination.
• The presiding officer whenever necessary will record the deposition in question and answer format.
• Objections by both the parties would be taken note of and reflected in the evidence.
• The name and number of subsequent witnesses would be stated on any subsequent date of evidence is not concluded on the date it begins.
• Exhibits for prosecution would be marked as P-1, P-2… while those for defendants would be marked as D-1, D-2… and the court exhibit would be marked as C-1, C-2…
• For easy location of witness through the document, the exhibit number would further indicate the witness number.
• If the exhibit is marked without proper proof, it would be marked with brackets showing (subject to proof).
• The material objects would be marked as MO-1, MO-2…
• After framing of charges the accused would be referred to only by their ranks and not by their names exception being at the stage of identification of witness.
• After recording the deposition of witnesses and marking of exhibits and material objects, and recording the same of the other all the witnesses, material objects and exhibits shall be referred to by their numbers and not names.
• Where the witnesses cited in the complaint or police report are not examined, they would be referred to by their names and numbers allotted to them in the complaint or police report.
• During cross examination, the relevant portion of statements recorded u/s 161 CRPC used for contradicting the witness shall be extracted and if it is not possible to extract, the presiding officer by his discretion, would indicate the opening and closing words of the relevant portion, while recording the deposition.
• If the relevant portion is not extracted, the portion would be distinctly marked as prosecution or defence exhibit as the case may be.
• There should be no omnibus marking of the entire statement u/s 161 and 164 CRPC.
• Only admissible portion of S.8 and S.27 of the Evidence Act has to be marked. This has to be ensured by the Presiding Officers. It has to be ensured as well that such portion alone is extracted on a separate sheet and marked and given an exhibit number.

THE JUDGMENT

• The following has to be represented in a judgment:

(1) Start with a preface showing the name of the parties as per Form A of the rules.

(2) Tabular statement as per form B of the rules.

(3) 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 of the rules

• In compliance with the section 354 and 355 CRPC,  the judgment shall contain:

(1) The points for determination.

(2) The decision thereon

(3) The reasons for the decision.

• If there is conviction in the case, the judgment would have to separately indicate the offence involved and the sentence awarded. If there is a case where there are multiple accused, each of them would have to be dealt separately.
• In case of acquittal, if the accused is under confinement, a direction shall be given to set the accused at liberty unless the accused is in custody for any other case.
• All the witnesses, exhibits and material objects should be referred to according to their nomenclature or numbering. Whenever there is need to refer the accused or witness by their name, the number would be indicated within the brackets.
• The judgment would be written in paragraphs and each paragraph would be numbered. It would be the discretion of the presiding officer to organize the judgment into different sections.

MISCELLANEOUS

• Application of bail should be ordinarily disposed off within a period of 3 to 7 days and if the application is not disposed off within such period, the presiding officer would have to furnish the reasons in the order itself. The copy of the bail application and order have to be furnished to the accused on the date of the pronouncement of the order itself.
• The State Government would appoint separate advocates, other than public prosecutors to advise the Investigation Officer during the investigation.
• The trial should go on expeditiously with examination of one witness a day unless there comes a reason to adjourn the same. (section 309(1) CRPC)
• Though the court can adjourn and postpone the hearing with given reasons, but if all the witnesses are in attendance, then no adjournment or postponement can be granted without examining them, except for special reasons in recording. (section 309(2) CRPC)
• Session cases should be given precedence and no other work shall be done on the Sessions Day until the same has been completed. The case should proceed from day to day unless the same has been completed. If due to some reason, the case has to be adjourned, intimation should be given to both the sides and immediate steps should be taken to stop the witness and secure their presence on the adjourned date.