General Rules in Recording Evidence which are to be followed in Inquiries and Trials

It is also provided that all evidence taken in the course of any trial or their proceedings must be taken in the presence of the accused, or when his personal attendance is dispensed with, in the presence of his Pleader.

In all summons-cases tried before a Magistrate, in all inquiries under Ss. 145 to 148, and in all proceedings under S. 446, otherwise than in the course of trial, as the examination of each witness proceeds, the Magistrate must make a memorandum of the substance of his evidence in the language of the Court. If, however, the Magistrate is not able to make such a memorandum himself, after recording the reason of his inability, he must cause such memorandum to be made in writing, or from the dictation in open Court. In either case, the memorandum must be signed by the Magistrate and forms part of the record of the case.

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As regards warrant-cases tried before a Magistrate, it is provided that the evidence of each witness must, as the examination proceeds, be taken down in writing, either by the Magistrate himself or by his dictation in open Court, or where he is unable to do so owing to physical or other incapacity, under his direction and superintendence, by any Officer of the Court appointed by him for this purpose.

Such evidence should normally be taken down in the form of a narrative, but in his discretion, the Magistrate may take down, or cause to be taken down, any part of such evidence verbatim in the form of question and answer. The evidence so taken down is to be signed by the Magistrate and forms part of the record of the case.

As regards trials before a Court of Session, it is provided that the evidence of each witness must, as the examination proceeds, be taken down in writing, either by the presiding Judge himself, or by his dictation in open Court, or under his direction and superintendence, by an Officer of the Court appointed by him for this purpose.

It is further provided that in such trials also, the evidence should normally be taken down in the form of a narrative, but in his discretion, the presiding Judge may take down or cause to be taken down, any part of the evidence verbatim in the form of question and answer. Such evidence is to be signed by the presiding Judge and forms part of the record of the case.

As regards the language of the record of evidence S. Ill lays down the following three rules:

(a) If a witness gives evidence in the language of the Court, it must be taken down in that language only.

(b) If the witness gives evidence in any other language, it may, if practicable, be taken down in that language. However, if it is not practicable to do so, a true translation of the evidence in the language of the Court is to be prepared as the examination of the witness proceeds, and the same is to be signed by the Magistrate. In such a case, if the evidence is taken down in English and a translation thereof in the language of the Court is not required by any of the parties, the Court may dispense with such a translation.

(c) Where under clause (b) above, evidence is taken down in a language other than the language of the Court, a true translation thereof in the language of the Court is to be prepared as soon as practicable, and the same is to be signed by the Magistrate.

When the evidence of each witness taken as above is completed, it must be read over to him in the presence of the accused, if he is present, or in the presence of his Pleader, if he appears by Pleader, and if necessary, it must be corrected at the proper places. If the witness denies the correctness of any part of the evidence when it is read over to him, the Magistrate or the presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection raised by the witness, and add such remarks as he may think necessary.

If the record of the evidence is in a language different from that in which it has been given, and the witness does not understand that language, the record must be interpreted to him in the language in which it was given or in any other language which he understands.

Whenever any evidence is given in a language which is not understood by the accused and he is present personally in the Court, such evidence must be interpreted to him in open Court in a language understood by him. If, however, he appears by Pleader and the evidence is given in any language other than the language of the Court, being a language not understood by the Pleader, it must be interpreted to the Pleader in the language of the Court.

When the Magistrate has recorded the evidence of a witness, he must also record such remarks, if any, as he thinks material regarding the demeanour of such witness whilst he was being examined. The object of this provision is to give the Appellate Court some aid in estimating the value of the evidence recorded by the lower Court.

The Supreme Court has held that the remarks on the demeanour of a witness made in judgement, though not made either during or at the close of the examination of the witness by a trial Judge, should be given due weight by the Appellate Court in the appraisal of the evidence of such a witness. But if the trial Judge has not indicated any reason which impelled him to make such remarks in the judgment, the High Court would be right in not attaching too much importance to such remarks. (Ganeshbhai,—1972 A.I.R. S.C. 1618)

When the accused is examined by a Metropolitan Magistrate, the latter must make a memorandum of the substance of the examination of the accused in the language of the Court, and such memorandum must be signed by the Magistrate and forms part of the record of the case.

If, however, the accused is examined by any Magistrate other than a Metropolitan Magistrate or by a Session Court, the whole of such examination, including every question and answer, must be recorded in full by the presiding Judge or the Magistrate himself, or when he is unable to do so, under his direction and superintendence by any Officer of the Court appointed by him for this purpose. As far as practicable, the record must be in the language in which the accused is examined, and if that is not practicable, in the language of the Court.

The record must then be shown or read to the accused and interpreted to him, if he does not understand that language and the accused is at liberty to explain or add to his answers. Thereafter, it must be signed by the accused and by the Magistrate, who must certify that the examination was taken in his presence and hearing, and that the record contains a full and true account of the statement made by the accused. However, this procedure does not apply in the case of an examination of an accused person in the case of a summary trial.

Whenever the services of an interpreter are required by any Criminal Court for his interpretation of any evidence or statement, such interpreter is bound to state the true interpretation of such evidence or statement.