36. Defence at State expense: – (1) Sessions Judges and Magistrates shall inform every accused person who appears before them and who is not represented by an Advocate on account of his poverty and indigence, that he is entitled of free legal service at the cost of the State, unless he is not willing to take advantage of it. It is not necessary that the accused should apply for legal aid. If the Court is satisfied that the accused has no sufficient means to engage an Advocate, it shall assign an Advocate for his defence at the expense of the State.
(2)(a) The Sessions Judge shall prepare a panel of Advocates to defend the accused, who has no sufficient means to engage an Advocate in a trial before the Court of Session from among the Advocates practising in the Court of Session.
(b) The panel of Advocates shall be known as “State Brief Panel” and consists of the following two categories, viz.,
Category No. 1: – Advocates of not less than 5 years standing in the Bar to defend an accused, who is charged with an offence punishable with death or life imprisonment or any complicated or sensational case.
Category No. 2: – Advocates with not less than 2 years standing in the Bar to defend the accused person, who has been charged with an offence punishable with a sentence other than death or imprisonment for life.
(c) In the Court of Additional Sessions Judges or Assistant Judges working at outlying stations or Magistrates, a State Brief Panel shall be prepared by such Judge or Magistrate, subject to the approval of the Sessions Judge.
(d) The “State Brief Panel” shall be prepared once in a year in the order of seniority of Advocates.
(3) Court to decide as to the number of Advocates to be engaged: – Where in a trial there are several accused not represented by an Advocate or Advocates, only one Advocate shall be assigned for the defence of all such accused:
Provided that, if the Court having regard to the nature of the defence of the different accused persons considers that it would not be desirable in the interests of justice to entrust the defence of all the accused persons to a single Advocate, as many Advocates as the Court considers necessary may be assigned.
(4) Facilities to be allowed to Advocates:- Advocates assigned by the Court to defend an accused shall be furnished with all the necessary papers and records and allowed sufficient time to prepare the case for the defence of the accused.
(5) (1) Fees Payable to the Advocates: – The Sessions Judge may sanction payment of fee to each Advocate so assigned at the following rates:-
(i) not exceeding Rs. 50/- for each day of the trial, where an accused is charged with an offence punishable with death or imprisonment for life. Provided that the fee payable to an advocate for the whole case shall not in the aggregate exceed Rs. 500/-.
(ii) not exceeding Rs. 25/- for each day of the trial, where an accused is charged with an offence other than an offence punishable with death or imprisonment for life. Provided that the fee payable to an Advocate for the whole case shall not in the aggregate exceed Rs. 250/-.
(5) (2) The Additional Sessions Judge or the Assistant Sessions Judge or the Magistrates working in the outlaying stations shall exercise the powers mentioned in sub-rule (1) in respect of Advocates before them.
37. One of the accused may be permitted to represent the other: – Criminal Courts may in cases where there are more accused than one, permit anyone of them to be authorised by any other to represent that other in any Criminal Proceeding ; but the authorisation shall be in writing and shall contain the signature of the person giving it and shall be filed in Court.
38. Affidavits before whom may be sworn or affirmed: – Affidavits intended for use in Judicial Proceedings may be sworn or affirmed before any Court or Magistrate (or an Advocate other than the Advocate who has been engaged in such proceedings) or a Member of Panchayat or a Sub-Registrar, Nazir or Deputy Nazir or a Member of the Legislative Council or of the Legislative Assembly of the State or a Member of the Zilla Parishad or a Municipal Councillor or a Retired Gazetted Officer receiving pension from the Government or any other Gazetted Officer in the service of the State Government or the Central Government or a Notary as defined in the Notaries Act, 1952, or any Commissioner or other person appointed by the High Court for the purpose of taking affidavits or affirmations or any Judge or any Commissioner for taking affidavit in any Court of record in India.
39. Filing of the affidavits: – Before any affidavit is used it shall be filed in Court, but the Presiding Officer may, with the consent of both parties, in case of urgency, allow any affidavit to be presented to the Court and read on the hearing of application.
40. Form of affidavits: – Every affidavit used in the Court shall set forth the name and place of the Court and cause title of the proceeding or other matter in which the affidavit is sought to be used The affidavit shall be drawn up in the first person, and divided into paragraphs, numbered, consecutively and each paragraph, as nearly as may be, shall be confined to a distinct portion of the subject.
41. Description of deponent: – Every affidavit shall state the full name, age, description and place of residence of the Deponent, and shall be signed by him. The description shall include the father’s name of the Deponent also.
42. Writing to be on both sides and each page to be signed: – When an affidavit covers more than one sheet of paper, then writing shall be on both sides of the sheet and shall be signed by the deponent at the foot of each page of the affidavit.
43. Alterations, Interlineations and Erasures: – Alterations, interlineations and erasures, if any, shall before an affidavit is sworn or affirmed, be authenticated by the initials of the authority before whom the affidavit is taken ; otherwise the same shall not be filed or made use of in any matter without the leave of the Court.
44. Statement of Officer before whom affidavit is sworn: – The authority before whom the affidavit is taken shall state the date on which and the place where the same is taken and sign his name and description at the end, otherwise the same shall not be filed or read in any matter without the leave of the Court.
45. Blind or illiterate deponent: – When an affidavit is sworn or affirmed by any person who appears to the authority taking the affidavit to be illiterate, blind or unacquainted with the language in which the affidavit is written, the Officer shall certify that the affidavit was read, translated or explained in his presence to the deponent, that the deponent seemed to understand it, and made his signature in the presence of the authority, otherwise the affidavit shall not be used in evidence.
46. Endorsement should state on whose behalf filed: – Every affidavit shall bear an endorsement stating on whose behalf it is filed.
47. Affidavit stating matter of opinion: – Every affidavit stating any matter of opinion shall show the qualification of the deponent to express such opinion by reference to the length of experience, acquaintance with the person or matter in respect of which the opinion is expressed, or other means of knowledge of the deponent
48. Affidavit on information and belief: – Every affidavit containing statement made on the information or belief of the deponent shall state the source or ground of the information or belief.
49. Documents referred to in affidavit to be referred as exhibits: – Documents referred to in an affidavit shall be referred to as exhibits and shall be marked in the same manner as exhibits admitted by Court and shall bear a Certificate signed by the Officer before whom the affidavit is taken.
50. Cross-examination on affidavit: – The Court may at any time direct that any person shall attend to be cross-examined on his affidavit
Oath and Affirmation
51. Administering Oath: – The Session Judges and Magistrates shall themselves administer the oath to the witness or the interpreter.
52. (1) A witness, interpreter or deponent to an affidavit may instead of making oath, make an affirmation.
(a) Oath or affirmation to be taken by a witness: –
I do Swear in the name of God
that, what I shall state shall be the truth, the whole truth and nothing but the truth :
(b) Oath or affirmation to be taken by an Interpreter other than Court interpreter: –
I do Swear in the name of God
that I will well and truly interpret and explain all questions put to evidence given by witnesses and translate correctly and accurately all documents given to me for translation.
(c) Oath or affirmation to be taken by the deponent to an affidavit –
I do Swear in the name of God
that this is my name and signature (or mark) and that the contents of my affidavit are true.
(2) The witness, interpreter or deponent to an affidavit shall ordinarily stand while making the oath or affirmation.
(3) In the case of deponent to an affidavit, oath or affirmation shall be made after he affixes his signature or mark to the affidavit.
Explanation: – The officer administering the oath or affirmation shall write the name of the deponent over/against the mark after the deponent affixes his mark and read it to the deponent before the Oath or affirmation is administered.
(4) No Oath or affirmation shall be administered to a deponent to an affidavit unless the Officer administering the Oath or affirmation is satisfied that the deponent understands the nature and contents of the affidavit.
(5) In the case of a child witness under 12 years of age, the Presiding Officer shall record a finding that the witness understands the duty of speaking the truth.
Recording of Evidence
53. Deposition when to be signed by witness: – After each witness is examined and the requirements of Section 278 Cr.P.C. are complied with, the witness shall be required to sign or affix his thumb impression on the record of his deposition.
53A. Copies of Depositions shall be furnished free of cost only to an accused who is an indigent person on application made by him.
54. Evidence as to the age of the accused: – In every case in which the precise age of the accused person is relevant to the determination of the sentence or order to be passed, evidence shall be taken on the question and whenever necessary the opinion of a medical expert shall be obtained.
55. Evidence of Gosha-women: – When the deposition of a gosha woman has to be taken, the Court shall, if necessary, adjourn to a place where the witness can be examined with due regard to her privacy, in the presence of the accused, precautions being of course taken to make sure of her identity.
56. Police Officers not to interpret evidence: – Police Officers shall not, as a rule, be employed, to interpret the evidence of a witness in cases prosecuted by the police.
57. Charges for interpretation: – Sessions Judges and Chief Judicial Magistrates are authorised to incur under intimation to the High Court, expenditure to a limit not exceeding Rs. 150/- (Rupees one hundred and fifty only) in each case on account of interpretation of evidence in a language not understood by the accused of in a language other than the language of the Court and not understood by the Advocate of the accused or by the Court. They are also authorised within the limit prescribed to pass similar charges incurred by Magistrates subordinate to them.
Explanation: – The provisions of the foregoing paragraph shall also apply to cases of interpretation of statements made by the deaf and dumb or the dumb and to the payment of remuneration to the expert interpreting such statements.
58. Marking of exhibits: – (1) Exhibits admitted in evidence shall be marked as follows :-
(i) if filed by the prosecution with the capital letter ‘P’ followed by a numeral, P1, P2, P3 and the like ;
(ii) if filed by defence with the capital letter ‘D’ followed by a numeral, D1, D2, D3 and the like ;
(iii) in case of Court exhibits with the capital letter ‘C’ followed by a numeral, C1, C2, C3 and the like;
(2) All the exhibits filed by the several accused shall be marked consecutively.
All material objects shall be marked in Arabic numbers in continuous series as M.O.1, M.O.2 and M.O.3 and the like, whether exhibited by the prosecution or the defence or the Court
59. Charges of previous conviction to be set out separately: – If it is proposed to prove several previous convictions against an accused person for the purpose of affecting his punishment, they shall not be lumped in one head of charge, but shall be set forth separately, each under a distinct head of charge.
60. Complainant how to be described in a charge: – The person against whom an offence is alleged to have been committed shall be described in the charge by his name and not by his accidental position in the case as complainant, prosecutor or witness.
61. Adjournment to be in writing and reasons therefor recorded: – Every time an inquiry or trial is adjourned, an order of the Court in writing giving the reasons therefor shall be recorded. The reason for which an adjournment can be granted may be either the absence of a witness or any other reasonable cause as stated in Section 309 of the Code. Adjournment shall not ordinarily be granted in order to give time to the Advocates to prepare their address to the Court as this will lead to unnecessary delay in the disposal of cases.
62. Order of remand to be endorsed on the warrant: – When a case adjourned there shall be a written order of remand. It may conveniently be made by the Judge or Magistrate endorsing his signature on the warrant of commitment under which the prisoner is brought up the words “Remand until …………………”
63. Short term Imprisonment generally undesirable: – Short-term imprisonments are undesirable. Before passing such sentences, the Court should consider whether the provisions of Probation of Offenders Act (20 of 1958) or Section 360 of the Code could not appropriately be applied in favour of the accused.
64. Imprisonment in Default of Fine: – In awarding sentences of imprisonment in default of payment of fine, regard shall always be had to the economic status of the accused and the sentence shall be so regulated as to induce him to pay them and not to evade such payment.
When an accused is sentenced to pay fine with imprisonment, in default of such payment, he shall be allowed reasonable facilities for payment of the fine. The calendar in such cases shall contain information in the column for remarks as to the payment of the fine and the order passed to facilitate such payment.
65. No abbreviations in Judgments: – Abbreviations shall not be used in Judgments or Orders.
66. How Witnesses shall be referred to: – Witnesses shall be referred by their names or ranking as P.W., or D.Ws. and if the witnesses are not examined, but cited in the charge-sheet, they should be referred by their names and not by numbers allotted to them in the charge-sheet.
67. Tabular Form to be annexed to judgment: – The judgment in original decisions shall be in the Form prescribed by Section 354 of the Code, with a foot note or side note in a tabular Form giving, in addition, the following particulars, viz.: –
(1) Serial Number.
(2) Name of Police Station and Crime No. of Offence.
(3) Description of accused : Name, Father’s Name, Race, Occupation, Residence, Age.
(4) Date of : Occurrence, complaint, apprehension, Release on bail, commitment, commencement of trial, close of trial, sentence or order.
(5) Explanation for delay.
Only two copies in manuscript of his statement are required, one copy for record and one for transmission to the High Court The one for record may conveniently be written up in a list to be bound up by way of index with the printed judgments for each year.
But in all summons cases the copy for record need not be prepared.
68. List of witnesses etc., to be appended to judgment: – There shall be appended to every judgment a list of the witnesses examined by the prosecution and for the defence and by the Court and also a list of exhibits and material objects marked.
69. Judgment to specify offence in respect of which sentence is passed: – When an offender is convicted of two or more offences and it is competent to the Court to award more than one Sentence, the Court shall in its judgment declare in respect of which offence or offences any sentence awarded is imposed.
70. Sub-section under which convicted to be stated: – When an accused is convicted under a Section of the Indian Penal Code, e.g., Section 454 which contains sub-sections with different punishments prescribed for the various offences dealt with, the judgment shall state under which sub-section the accused was charged and convicted.
71. Judgment to state-whether previous conviction was proved or confessed: – When enhanced punishment is awarded on account of previous convictions, it shall appear in the judgment that the previous conviction was charged, and proved or confessed.
Furnishing Copies of Judgments
72. Copies to the prosecution and the accused: – Copies of Judgments shall be given to the accused and the prosecution. When a person who has been convicted of an offence, applies for another copy of Judgment in addition to the one required to be furnished to him under Section 363 of the Code, with a view to memoralising Government, he shall be furnished with another copy in all cases free of cost except in summons cases.
73. Judgment against the Government Official to be furnished to the heads of departments: – In cases where Government Officials are charged with criminal offences, copies of judgments and orders, and where they are in a regional language, translations thereof in English shall be furnished by the Courts to the Heads of Departments concerned, free of charge.
74. Copy of judgment when to be sent to the head of department: – When in a judgment or Order, the Sessions Judge or the Magistrate impugner the character or conduct of any Government Servant, he should, if he regards the matter as serious enough to call for Departmental Enquiry or action, forward a copy of the judgment or order to the Head of the Department or the immediate Gazetted Officer under whom the Government servant is working.
75. Intimation to be given to the Controller of Defence Accounts on conviction of Military pensioners: – Where a Military pensioner is convicted and sentenced to imprisonment, or where such conviction and sentence of imprisonment are confirmed in Appeal, the Court passing or confirming such a Sentence shall forward to the Controller of Defence Accounts, Pensions, Allahabad, free of charge, a copy of such Judgment as soon as possible after it is pronounced stating the place from where the Pensioner last drew his pension.
Magistrates, Assistant Sessions Judges and Additional Sessions Judges shall forward such Judgment through the Sessions Judge.
The Rule shall apply also to judgments of the High Court exercising powers of an Appeal or Revision.
76. Copies of Judgments in food adulteration cases when to be sent to Food Inspector: – In all Food Adulteration cases ending in acquittal, Sessions Judges or Magistrates concerned shall supply four typed copies of the judgments on plain paper, free of cost, to the Food Inspectors on their request.
77. Copy of judgment when to be sent to Chemical Examiner: – Sessions judges and Magistrates shall forward to the Chemical Examiner two copies of their judgments or final orders in all cases in which reference has been made to him.
78. Copy of judgment when to be sent to Professors/Lecturers in Forensic Medicine: – Sessions Judges and Magistrates shall forward copies of the judgments to the Professors/Lecturers in the Medical Colleges at Hyderabad, Visakhapatnam, Guntur, Kurnool, Tirupathi, Warangal and Kakinada, as the case may be in which his evidence has been taken.
79. Maintenance of Diary: – Sessions Judges and Magistrates shall maintain a diary in administrative Form No. 11. The Diary shall show the time at which the criminal proceedings of each day commenced and the time at which they ended, and shall indicate clearly the progress made in the hearing of each case (specifying the number of witnesses examined), in the order in which each case was taken up. The entries shall be initialled by the Judge or the Magistrate on the day to which they relate.
80. Submission of extracts and calling for the original: – When a case is committed for trial before the Court of Session or referred to the Chief City Magistrate an extract from the diary shall be placed with record.
It shall be competent to a Sessions Judge or the Chief City Magistrate upon a cause shown, to call for the original diary of any Subordinate Magistrate in order to satisfy himself that the extract submitted is a correct transcript of the entries relating to the case, or that such entries have not been subsequently altered.
81. Accused witness and Advocate to sit: – (1) The accused may be permitted to sit except when they are examined under Section 239, 251 or 313 of the Code or when they are required for the purpose of identification by the witness.
(2) The witnesses may be allowed to sit while giving evidence.
(3) Advocates may be allowed to sit while examining or cross-examining the witness.
Categories: Criminal Procedure Code 1973