SCOPE OF RECORDING OF STATEMENT OF WITNESS THROUGH AUDIO VIDEO –ENTITLEMENT OF ACCUSED IN AUDIO VIDEO RECORDING U/S 207 CR.P.C – CRITICAL ANALYSIS
M. KARUNANITHI BSc., M.L., SENION PANEL COUNSEL, UNION OF INDIA FORMER SPECIAL PUBLIC PROSECUTOR, Q BRANCH CID
HIGHCOURT – MADURAI BENCH
Email:- kanlaw1971@gmail.com
INTRODUCTION
New proviso has been inserted in Section 161(3) Cr.P.C with effect from 31.12.2009, under Act 5 of 2009. In this article the author intends to discuss about the positive and negative impact of recording of statements witnesses through Audio Video system.
DISCUSSION:-
For easy reference, Section 161(3) Cr.P.C and the proviso is extracted hereunder,
161. Examination of Witnesses by Police -
(1) ….
(2) .…
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.
[Provided that statement made under this sub-section may also be recorded by audio-video electronic means]
The statement of objects and reasons
Amendment Act 5 of 2009 – Statement of Objects and Reasons. –
The need to amend the Code of Criminal Procedure, 1973 to ensure fair and speedy justice and to tone up the criminal justice system has been felt for quite sometime. The Law Commission has undertaken a comprehensive review of the Code of Criminal Procedure in its 154th report and its recommendations have been found very appropriate, particularly those relating to provisions concerning arrest, custody and remand, procedure for summons and warrant-cases, compounding of offences, victimology, special protection in respect of women and inquiry and trial of persons of unsound mind. Also, as per the Law Commission’s 177th report relating to arrest, it has been found necessary to revise the law to maintain a balance between the liberty of the citizens and the society’s interest in maintenance of peace as well as law and order.
2. The need has also been felt to include measures for preventing the growing tendency of witnesses being induced or threatened to turn hostile by the accused parties who are influential, rich and powerful. At present, the victims are the worst sufferers in a crime and they don’t have much role in the court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system. The application of technology in investigation, inquiry and trial is expected to reduce delays, help in gathering credible evidences, minimize the risk of escape of the remand prisoners during transit and also facilitate utilization of police personnel for other duties. There is an urgent need to provide relief to women particularly victims of sexual offences, and provide fair-trial to persons of unsound mind who are not able to defend themselves.
3. The code of Criminal Procedure (Amendment) Bill, 2006 seeks to achieve the above objectives.
Fair Trial has been guaranteed under the constitution of India, fair trial includes fair investigation, no doubt the offender has to be punished with proper sentenced. 2019 (3) MWN Crl 349 Vinubhai Harishai Malaviya Vs State of Gujarat
Article 21 – Fair Trial – begins only after and just investigation – Article 21 mandates all necessary powers including incidental and implied to Magistrate to ensure fair and just investigation by the police.
No doubt victim of an offence should not suffer, keeping the same in mind the law maker has coined the new proviso to Section 161(3) Cr.P.C.
It is pertinent to be pointed out here that the said proviso in Section 161(3) Cr.P.C. has been inserted keeping in mind that there are many witnesses turned hostile to the prosecution.
On combined reading of Section 161(3) Cr.P.C and the proviso inserted by Act 5 of 2009, it is made clear that the statement recorded by the investigating officer under Section 161(3) Cr.P.C, can be recorded by Audio Video electronic means and the recording is only directory and not mandatory, because the word may has been coined by the Law Maker in the said proviso. It is also to be noted that merely because the word “may” has been coined does not been it is directory and not mandatory but on combined reading of Section 161(3) Cr.P.C will reveal that the said proviso is only directory.
After the code of criminal procedure 1973 came into force and even before that in many criminal trials the defence have taken specific stand that
a) The first information report has been substituted
b) Genesis of occurrence has been suppressed.
c) The documents have been fabricated and manufactured at a later point of time. It is true that many cases have been ended in acquittal in suspecting the very FIR and the documents, it is painfully noted that in some places FIR has been falsely recorded by printing the FIR in Motor Accident cases and this Hon’ble Court has taken cognizance of the same also.
The following cases are some examples for the same. In order to avoid such a defence in future the prosecution can record statement of witnesses by Audio Video recordings as contemplated by Act 5 of 2009. This exercise will definitely eliminate and rule out those allegations of fabrications of record as against the prosecution. Then, the prosecution will take care in projecting their case.
1. (2007) 1 MLJ (Crl) 796 - Muralisamy @ Muralidharan and others Vs State by Inspector of Police, Sooramangalam Police Station, Salem
Para No’s 13, 14, 15
“13……Since the very attack on the prosecution case centres around the genuineness of Ex.P1, we examined with care and caution Ex.P1 to find out whether it could have come to be recorded in the hospital at the time and in the manner alleged by PW16. At the end of Page 3 in Ex.P1. we find an endorsement that PW16 recorded the said statement in the hospital at 4.15 a.m. Regarding the time at which the said complaint had come to be recorded in the hospital, there is definitely a correction. When PW16 was pinpointedly cross examined drawing his attention that the complaint was actually recorded only at 5.30 a.m. but it stands corrected as 4.15 a.m. he denied there is any such correction. It is not disputed even by the State counsel that the correction on the line indicated above is visible to the naked eye….”
2. 2008(3) MLJ (Crl.) 1287 - Krishnamoorthy and another Vs. State by the Inspector of Police, Thanjavur Taluk Police Station
Para No’s.42 & 43
42. The learned counsel for the appellant has produced the charge sheet in S.C.No.129 of 2007 which also contains the draft charge sheet. In the draft charge sheet, the Deputy Director of Prosecution has given instructions to the Investigating Officer on 5.4.2007 that the Investigating Agency to collect materials regarding the witness who had seen the accused and the deceased together the deceased had worshipped in the temple and the deceased proceedings in an auto on 17.6.2006 and the cycle hired by the accused and also the materials regarding the owner of cell phone.
43. The learned counsel for the appellants had invited the attention of this court to the cross examination of PW33 with regard to the instructions given by the Deputy Director of Prosecution dated 5.4.2007 PW.33 had admitted that Exs.P.45 to P.48 were filed belatedly Ex.P45 is pertaining to the purchase of the cell phone by the daughter of the deceased. Ex.P.46 is a diary maintained by the deceased Sakunthala and Ex.P.47 is the receipt book of Krishna Finance in which A2 had pledged the two ear studs and Ex.P.48 is the register maintained by Murugesan PW16, the owner of the cycle shop in which A2 hired the cycle by signing as Karthik and A3 also hired the cycle. All these documents had reached the court much belatedly and those documents were marked only at the time of re-examination. PW33 in the cross examination had admitted that in Exs.P.45 to 48, neither the signature of the Magistrate, nor the seal of the court is available and even though those documents were filed in the court is available and even though those documents were filed in the court in the Form 95, no such endorsement was found on Form 95. It is also admitted by PW33 that between 5.4.2007 and 9.4.2007, he has not examined any witnesses and collect any materials and only after the instructions given by the Deputy Director of Prosecution on 5.4.2007, steps were taken to file those documents it is also deposed by PW33 that it has not been indicated that Exs.P45 were misplaced or lost.
3. 2015 (4) CTC 561 - Koilpillai and another Vs State of Tamil Nadu, Rep by its Secretary, Home Department, Secretariat, Chennai. And others.
Para No’s.44 & 45
“44.. In this case, admittedly the petitioners were implicated in a case of murder, arrested, detained in prison for a considerable time, allowed to undergo the ordeal of trial, put to lot of humiliation, horror etc. They have spent their valuable time and money to prove their innocence. For the loss suffered by them, the question is whether they are to be monetarily compensated by the State. Undoubtedly, in this case, there were serious human rights violations caused to the accused by the officers of the State Government. The right to life guaranteed under Article 21 of the Constitution of India and the personal liberty guaranteed under Article 19(1) of the Constitution of India are to be ensured to the people of this country by the State. As and when it is brought to the notice of the State that the State Instrumentalities or its officers have caused serious violation of these rights, thereby resulting in loss to a citizen of this country, as I have already said in a different case, the State should volunteer to rush to the rescue of the victims of such human rights violations, so as to alleviate their sufferings to some extent at least by granting monetary relief.
“45..The plea of sovereign immunity is not available for the State to raise when the High Court, considers the question of granting compensation as a public law remedy, either under Article 226 of the Constitution of India or under section 482 of the Code of Criminal Procedure. The plea of sovereign immunity, as has been held by the Hon’ble Supreme Court time and again, is available for the State only against a claim by way of Private Law remedy. It is needless to point out that the remedy granted by this court either under Article 226 of the Constitution of India or under section 482 of the Code of Criminal Procedure is not a final remedy as the aggrieved is always at liberty to work out his remedy under the Private Law before the appropriate forum. In other words, the right of the aggrieved to claim compensation by way of private law remedy shall not deter the High Court from passing an order for payment of compensation by way of Public Law Remedy.
4. 2003 (2) Crimes 268 (SC) - Rajeevan and another Vs State of Kerala - Para No.6
“The Trial court noticed that there were many weak spots in the prosecution case such as, the delay in lodging First Information Statement. The spot of incident is only 100 meters from the police station. But eh FIR was lodged in the Police Station only at 7.40 AM on the next day; that though FIR was filed on 29.12.1987 in that morning, it was sent to the Magistrate only at 5.40 p.m on 30.12.1987; that the Sub Inspector (PW-28) did not register the crime on the basis of information collected by him immediately after the incident; that Ex.P30 is the counter foil file of the FIR and between the entries relating to Crime Nos.5 and 7 certain blank sheets were found; that this circumstance was not satisfactorily explained by the concerned Police Officer during examination. The Trial Court is of the view that this was done to fill up details regarding the instant case subsequently; that Ex.P1 first information statement given by PW1 also seemed to have been subsequently written on a blank signed paper; that this inference was drawn due to the cramped handwriting in the paper towards the end portion, just above the signature though there was adequate space in the next page”
5. 2007 (2) MLJ (Crl.) 153 - Senthil Kumar and Another Vs State by Sub Inspector of Police, Ayyampet Police Station, Thanjavur District.
Para No’s.10 & 11
“10…. The revision petitioners are the accused 1 and 2. The learned counsel for the petitioners raised doubt about the date and place of occurrence. According to him, the name of the accused were corrected in FIR. There are number of corrections made in FIR. These corrections were admitted by PW10 and he was unable to given any explanation. PW11, the investigating officer did not enquire about the corrections in FIR. It is clear that the investigation was not properly conducted and the investigating officer did not recover the material objects such as Soda Bottle, which was in the scene of occurrence. It is duty of the investigating officer to recover the material objects and weapons.
“11. Learned Counsel for the petitioners relied on the judgment of the division Bench of Madras High Court in Muralisamy @ Muralidharan and Others Vs State (2007) I MLJ 796 wherein the correction in FIR was pointed out. The corrections in the FIR is so obvious on the fact of it that no eye could miss it, for which PW16, did not come out with any explanation. Further, in this case, though the complaint was given on 26.5.2002 at 14.30 hrs it was sent to the Judicial Magistrate on 27.5.2002 at 10.30 hrs and the police station was not far away from the residence of the Judicial Magistrate. So FIR was sent belatedly and it has also created doubt in the prosecution.”
6. (2008) 3 MLJ (Crl.) 257 - Ayyadurai and others Vs State rep by Deputy Superintendent of Police, CBCID, Tirunelveli - Para Nos.20 & 21
“20.Ex.P35 is the first information report. But it does not contain the narration of occurrence as found in Ex.P1 it has been pointed out by the defence that in Ex.P.35 there is a statement that the narration of occurrence has been incorporated in a separate sheet attached to first information report but there is no such separate sheet found along with Ex.P.35. PW.25 has offered an explanation that the separate sheet mentioned in Ex.P.35 is only Ex.P1 but, this explanation, in our considered opinion, is only an after thought.
“21. At this juncture it is necessary to refer to section 154 Cr.P.C which reads as follows,
“Information in cognizable cases : (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.”
A close reading of Section 154 Cr.P.C would go to show that the substance of the information shall be entered in a book kept as specified by the State Government. In this case, as far as the State of Tamil Nadu is concerned, the book prescribed by the State Government is the one known as First Information Report Book. It is mandatory clear that under section 154 Cr.P.C. The officer who registers the case shall enter the substance of the information in the First Information Report book. In this case, PW25, has not done so. The Explanation offered by PW.25 is also not acceptable. This is also yet another circumstance, which creates doubt in respect of the origin of the first information report.”
7. 2010(1) MLJ (Crl).1218 – Veeraiyan Vs. State - Para No’s9,10
“9. According to the prosecution, 500 grms of heroin was recovered from the accused. Out of which two 10 gram a were taken for sample and the remaining 480 gms was kept in a sealed cover. I have carefully perused the FIR, Exhibits P-4 and 5. The prosecution witnesses viz., PWs.2 to 7 would submit that there was a correction regarding the quantity sent to the forensic lab. In the FIR it is seen that “25” grams was struck-off and over written as “10 grams. Even by a careful perusal, we can see the same corrections in Exhibits P-4 and 5 also. However, In Exhibit P-6 Requisition, it is stated that 25 grmas of heroin were taken and sealed with NIBCID seal and report was sent to the Trial Court. The prosecution witnesses have fairly admitted that originally 25 grams was written and subsequently it was struck off and over written as 10 grams. Strangely, in the copies served on the accused viz., in Exhibit D-1 it was stated that two 25 grams were taken for sample. If really the correction is uniform, certainly it would also have been carried out in uniform in Exhibit D-1 also. Further, surprisingly, in the letter sent by the Trial Court to the Forensic Lab also, there was a correction in the quantity. I have carefully perused Exhibit P-7, from which we can see that 25 grams was typed, Subsequently, it was struck off and 10 was typed with different ribbon. It would show that the letter sent by the Trial Court was also tampered subsequently, which throws serious doubt about the case of the prosecution.
“10. The learned counsel further argued that the materials on record would go to show that what was seized from the accused was not sent to the forensic lab, and there were corrections in the quantity and the material discrepancy regarding the weight of the contraband would create doubt on the genuineness of recovery proceedings and therefore, the conviction cannot be held sustainable. To support his contention, he has relied upon the decision Emili Vs State represented by the Inspector of Police (2001) 1 MWN (Cr) 41.
8. 2019 (1) MWN Crl 506 (DB) – Death reference State Vs Sundararaj and others – Para No.37
“37., In this case, we did not go through the case diary, but went through the original records available in the court, from which itself we have been able to ferret out a can of worms. Small wonder, we would have noticed a worm pit had we accessed the case diary. We are convinced beyond any speck or shred of doubt that the investigation of this case was not only perfunctory but also blameworthy…..
In the facts and circumstances of this case, we direct the Superintendent of Police, Theni to conduct an enquiry on the lapses noticed by us and also find out from the case diary as to whether there has been any attempt to shield the real culprit(s)….we direct the state government to pay a compensation of Rs.5 Lakhs to PW1 with in the period of three months.
9. 2014 (5) SCC 108 -State of Gujarat Vs Kishanbhai and others – Para No’s.19 to 25
“22., Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinary lead to the inference, that an innocent persons was wrongfully prosecuted, therefore essential that every State should put in place in procedural mechanism which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. …
“23. All such erring officials /officers identified, as responsible for failure of prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant directions also be given effect to within six months.”
10. 2019 (1)MWN Crl. 506
Death sentence – set aside – acquittal – Compensation to victim awarded – enquiry against investigation officer ordered
The proviso started with provided that statement made under this sub-section … so, the proviso contemplates that when statement from the witness is reduced in writing, the same can be recorded through Audio Video recording.
(ii). Whether Audio Video recording would amounts to document can be furnished to the accused under section 207 Cr.P.C. or the recording would amounts to case diary as contemplated under section 172 of Cr.P.C
In 172 Cr.P.C by Act 5 of 2009 with effect from 31.12.2009 in following insertions has been made.
172. Diary of Proceedings in Investigation
(1) ……
[(1-A)] The statements of witnesses recorded during the course of investigation under section 161 shall be inserted in the case diary.
[(1-B)] The diary referred to in sub-section (1) shall be a volume and duly paginated.]
No doubt as per section 172(2) Cr.P.C any criminal court may sent for the police diaries in a case under inquiry or trial but not as evidence but to aid it in such inquiry or trial. It is equally settled law that the accused is not entitled to call for such diaries as referred to in section 172(1) Cr.P.C.
Before the [(1-A)] & [(1-B)] has been inserted in Section 172 Cr.P.C., the prosecuting agency need not record the crux of statement record under section 161(3) Cr.P.C. in the case diary. After the said amendments, the crux of the statement of witnesses has to be recorded in the case diary. No doubt the accused is not entitled the case diary of the investigating officer. But, the statement of witnesses record under section 161(3) Cr.P.C. has to be furnished to the accused in order to give fair trial to the accused. If [(1-A)] is read in negative, then statement under section 161(3) Cr.P.C. ought not to be supplied to the accused. Then such a interpretation will make section 207 Crl.P.C. as nugatory. There must be a purposive construction to the Section 172 [(1-A)] & [(1-B)] Cr.P.C.
Whether the Audio Video recorded can be termed as “Document” as referred under section 207 Cr.P.C which mandates the supply of police report and other documents in the accused at free of cost.
Section 3 of Indian Evidence Act
“Evidence” .— “ Evidence” means and includes—
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
(2) 6 [all documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence
As per the clear language made in Section 3 (2) of Indian Evidence Act all electronics records are documents. Hence, the same would fall under section 207 Cr.P.C.
For better appreciation section 207 of Cr.P.C, is extracted hereunder,
207. – Supply to the accused of copy of police report and other documents – in any case were the proceeding has been instituted on a police report, the Magistrate shall without delay furnished the accused, free of cost, a copy of each of the following,
(i)..….
(ii)……
(iii) the statements recorded under sub-section 3 of section 161 of All persons whom the prosecution proposes to examine as its witnesses, excluding there from any party in regard to which a request for such exclusion has been made by the police officer under sub section 6 of section 173.
(iv) ….
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub section 5 of Section 173.
173 .. report of police officer on completion of investigation
6. If the police officer is of opinion that any part of any such statements is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interest of justice and is inexpedient in the public interest, he shall indicate that part of the copies to be granted to the accused and stating his reasons for making such a request.
It is respectfully submitted that the criminal trial is said to have commenced as soon as charges are framed. Before framing the charges in the cases instituted on the police report, the learned trial judge has to look into the police report and the documents forwarded under section 173 (2) Cr.P.C. the accused has been summoned only to answer the charges. Hence, the framing of charges is very important and plays vital role. When a document is considered for framing of charges, the same has to be furnished to the accused under section 207 Cr.P.C. there is no discretion on the part of the learned Judicial Magistrate or the Trial Judge in furnishing the documents under section 207 Cr.P.C.
The combined reading of section 173(5), 173(6) and section 207 Cr.P.C. will clearly reveals that the statements and documents forwarded under section 173 Cr.P.C. has to be furnished by the learned Judicial Magistrate. The discretion is learned Judicial magistrate to accept the request of the investigating officer under section 173(6) Cr.P.C. The 173(6) does not mandate that all the documents referred by investigating officer ought not to be granted to the accused, still the learned Judicial Magistrate has to exercise his power either to allow the request or to reject the same.
On the clear reading of section 161(3) and the proviso added by Act 5 of 2009 that the statement of the witnesses may be record by Audio Video means, that means it is only a statement and not material object. So, the same has to be furnished to the accused.
i) AIR 1981 SC 917
ii) 1984 Crl.LJ 854
iii) 2011 Crl. LJ 1416
iv) Sadhvi Ritumbhara V State of MP 1997 KHC 2835
v) Prakash Chattrani Vs State of Madhya Pradesh Laws MPH 2009 758
vi) 2017 (1) KLD 361 SC Tarun Tyagi Vs CBI
vii) Archana Vs Asst Commissioner of Police 2011 KHC 2850
viii) Emperor Vs Krishtappa Khandappa – AIR 1925 Bom 327
ix) Santhosh Madhavan @ Swami Amritha Chaithanya Vs State 2014 KHC 31
x) Grant Vs Southwestyern Properties 1997 KHC 521
xi) 1976 2 SCC 17
xii) KS Puttaswamy Vs Union of India 2017 10 SCC 1
In the above cases the Hon’ble Court has held that the recording in Audio Video will come under the definition of document and so the same has to be furnished to the accused under section 207 Cr.P.C.
2019 (3) SCC Crl. Page 509 – P.Chidambaram Vs Directorate of Enforcement Para 50 & 53
“53. SO far as the production of the case diary during trial and reference to the same by the court and the interdict against the accused to call for case diary is governed by Section 172 Cr.P.C. As per sub section (3) of Section 172, neither the accused nor his agent is entitled to call for such case diaries and also not entitled to see them during the course of enquiry or trial. The case diaries can be used for refreshing memory by the investigating officer and court can use it for the purpose of contradicting such police officer as per provisions of section 161 or section 145 of the Evidence Act. Unless the investigating officer or the court to uses the case diary either to refresh the memory or for contradicting the investigating officer as previous statement under section 161, after drawing his attention under section 145, the entries in case diary cannot be used by the accused as evidence [vide Section 172(3) Cr.P.C].
The case law decided by Hon’ble Delhi High Court (2015) 1 AD (Delhi) 708 between Ashutosh Verma Vs CBI is very relevant to decide whether the CD or Video recording is a document to be furnished to the accused. The following case laws will be useful to come to a conclusion regarding supply of documents to accused under section 207 Cr.P.C.
i) AIR 1981 Supreme Court 917 Page No.14,17,21,23
Superintendent of Remmebrancer of Legal Affiars, West Bengal Vs Satyen Bhowmick and others,
ii) (2012) 9 SCC 771 – V.K.Sasikala Vs State Para 12, 13 to 15, 17,18
iii) 2011 Crl. LJ 1416 – Delhi High Court – CDR (Retd) Jarnail Singh Kalra Vs CBI
If a witness turned as hostile to the prosecution and deposed completely against the former statement recorded in writing under section 161(3) and also the Audio Video recordings, can the court of law proceed against such a witness for perjury. If a witness is produced before the learned Judicial Magistrate for the purpose of recording statement under section 164 Cr.P.C and as against the former statement recorded under section 164 Cr.P.C. if a witness turned hostile, whether any action can be taken against such witness.
Is there any proof that the said witness was really examined by the investigation officer and without any undue influence, threat, promise or whatsoever the statement was recorded under Audio Video recording. Whether the statement recorded under section 161(3) Cr.P.C and 164 Cr.P.C can be termed as evidence.
Deviation from 161(3) Statements
Since the statement recorded U/s 161(3) Cr.P.C. is not an evidence perjury cannot be initiated, equally statements recorded under section 164 Cr.P.C. is not a substantive evidence and it has been stated in the law as statement and so also no perjury can be taken if the witness resiled from earlier statement. The statement recorded under section 161(3) as well under section 161 Cr.P.C. is a former statement of witness. Hence, perjury cannot be initiated. Section 340 Cr.P.C. amply clear that court of law can conduct an inquiry into any offence regarding an offence appears to have been committed in or in relation to a proceedings in that court. But, proceedings under 340 Cr. P.C can be initiated not in all cases but if the court is of the opinion that it is expedient in the interest of justice, then only perjury can be initiated. Regarding the perjury it is useful to refer the judgment of the Constitutional Bench of the Hon’ble Supreme Court of India reported in 2005 SCC Crl. Page 1101 (Vol.II) Iqbal Singh Marwah and another Vs Meenakshi Marwah and another case.
In the following cases it has been decided that the proceedings under section 340 can be initiated only after the satisfaction that it is expedient in the interest of justice that an enquiry be made.
1. AIR 1965 Guj Page 70
2. AIR 1945 ALL 397
3. 2005 SCC Crl. Page 1101 (Vol.II) Iqbal Singh Marwah and another Vs Meenakshi
Marwah and another
4. 2007 Crl LJ 2339
5. AIR 1992 SC 1831
Section 3 of Indian Evidence Act, 1872 defines document and also evidence.
“Document” – “Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
Illustrations
A writing13 is a document
13Words printed, lithographed or photographed are documents;
A map or plan is a document
An inscription of `on a metal plate or stone is a document
A caricature is a document.
“Evidence” – Evidence means and includes –
(1) All statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
Such documents are called oral evidence;
(2) All documents including electronic records produced for the inspection of the court
Such documents are called documentary evidence.
It is to be seen that as per the definition of document as per section 3 of Indian Evidence Act, the Audio Video recording will squarely come under the definition and so the same has to be furnished to the accused under section 207 Cr.P.C.
It is to be pointed out that while recording statement under section 164 Cr.P.C, there was no inquiry before the learned Judge so the same cannot be come under the definition of evidence. Even section 164 Cr.P.C says that it is only a statement. So, if any witness deviated from former statement recorded under section 164 Cr.P.C no perjury can be initiated because it is only statement and not an evidence. It is further to be pointed out that since the same has been recorded in the absence of accused. The evidence recorded by the court of law in the presence of accused or in the presence of counsel alone to be considered as evidence.
It is to be recorded that the data provided by the National Crime record bureau is to be considered for the purpose of giving guidelines to the prosecuting agency in recording the statement of witnesses through Audio Video system.
From the discussion made above it is crystal clear that it is the high time to give guidelines to the prosecuting agency to record the statement of witnesses to be recorded by Audio Video recording at least in grave crime cases in order to get better appreciation by the court of law.
No doubt law is also science. Hence, there must be a development of law to ensure the object of the Constitution of India. The new proviso to Section 161(3) Cr.P.C was introduced to achieve the goals as stated in the statement of objects and reasons. Let the investigating agency introduce the recording of statement of witnesses through audio video means, then there will be a moral binding on the witnesses. In this regard the division bench of Madras High Court at Madurai Bench heard the bar at length and passed the guidelines as follows,
13. To conclude:
(i) The trial courts must carry out the mandate of Section 309 of the Cr.P.C. as reiterated in judgments of this Court, inter alia, in State of U.P. versus Shambhu Nath Singh and Others [(2001) 4 SCC 667], Mohd. Khalid versus State of W.B. [(2002) 7 SCC 334] and Vinod Kumar versus State of Punjab [(2015) 3 SCC 220] .
Crl.A(MD)Nos.482 and 513 of 2017
(ii) The eye-witnesses must be examined by the prosecution as soon as possible.
(iii) Statements of eye-witnesses should invariably be recorded under Section 164 of the Cr.P.C. as per procedure prescribed thereunder.14. The High Courts may issue appropriate directions to the trial courts for compliance of
the above.
15. A copy of this order be sent by the Secretary General to the Registrars of all the High Courts for being forwarded to all the presiding officers in their respective jurisdiction.”
The Hon’ble Punjab and Haryana High Court in Abhijeet Singh alias Ankur Likhari v. State of Punjab as held as follows,
“62. Accordingly, we issue following mandatory directions to ensure fair and expeditious enquiry, investigation and trials:-
1 to 7 …………
8. All the investigating officers in the State of Punjab are directed to record the statement under Section 161 Cr.P.C. by audio, video, and electronic means forthwith, as per Section 161 Cr.P.C.
It is to be pointed out that the similar issue is pending to be decided by the Hon’ble Supreme Court.
CONCLUSION:-
It is painfully noted that when we take note of table of total cases recorded across the country in the past years and the percentage of conviction, the table is shocking hence the audio video recording may improve the situation and we expect that the prosecuting agency will follow the guidelines with letter and spirit.