Tag Archives: EVIDENCE

Whether the Police have the power under the Code of Criminal Procedure to take specimen signature and writing of the accused for examination by the expert.

13 Jul 2018 Advocatetanmoy

It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only in the amendment of the Code of Criminal Procedure in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings being per se illegal, the report of the expert cannot be used as evidence against him. To meet the above claim, learned Addl. Solicitor General heavily relied on a 11-Judge Bench decision of this Court in The State of Bombay v. Kathi Kalu Oghad and Ors., (1962) 3 SCR 10 : AIR 1961 SC 1808. This larger Bench was constituted in order to re-examine some of the propositions of law laid down by this Court in the case of M.P. Sharma and Ors. v. Satish Chandra, District Magistrate, Delhi and Ors., (1954) SCR 1077. After adverting to various factual aspects, the larger Bench formulated the following questions for consideration:

2. …On these facts, the only questions of constitutional importance that this Bench has to determine are; (1) whether by the production of the specimen handwritings – Exs. 27, 28, and 29 – the accused could be said to have been ‘a witness against himself’ within the meaning of Article 20(3) of the Constitution; and (2) whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwritings. … …

4. …The main question which arises for determination in this appeal is whether a direction given by a Court to an accused person present in Court to give his specimen writing and signature for the purpose of comparison under the provisions of Section 73 of the Indian Evidence Act infringes the fundamental right enshrined in Article 20(3) of the Constitution.

The following conclusion/answers are relevant:

10. …Furnishing evidence” in the latter sense could not have been within the contemplation of the Constitution- makers for the simple reason that – though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject – they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. … ….

11. …When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a ‘personal testimony’. The giving of a ‘personal testimony’ must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression ‘to be a witness’.

12. ….A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony’.

16. In view of these considerations, we have come to the following conclusions:

(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not ‘compulsion’.

(3) ‘To be a witness’ is not equivalent to ‘furnishing evidence’ in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt innocence of the accused.

(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression ‘to be a witness’.

(5) ‘To be a witness’ means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.

(6) ‘To be a witness’ in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.

(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.

EVIDENCE

State of Bombay Vs Kathi Kalu Oghad [ALL SC 1961 AUGUST]

13 Jul 2018 Advocatetanmoy

KEYWORDS: 11 JUDGES BENCH- testimonial compulsion

AIR 1961 SC 1808 : (1962) 2 SCR 10 : (1961) 2 CriLJ SC 856

(SUPREME COURT OF INDIA)

State of Bombay	Appellant
Versus
Kathi Kalu Oghad	Respondent

With

Criminal Appeals Nos. 110 and 111 of 1958

Pokhar Singh (In both the Appeals)	Appellant
Versus
State of Punjab (in both the Appeals)	Respondent

With

Criminal Appeal No. 174 of 1959

State of WEST BENGAL	Appellant
Versus
Shri Farid Ahmed	Respondent

(Before : B. P. SINHA, C.J.I., S. J. IMAM, S. K. DAS, P. B. GAJENDRAGADKAR, A. K. SARKAR, K. SUBBA RAO, K. N. WANCHOO, K. C. DAS GUPTA, RAGHUBAR DAYAL, N. RAJAGOPALA AYYANGAR AND J. R. MUDHOLKAR, JJ.)

Criminal Appeal No. 146 of 1958 and Criminal Appeals No. 110 and 111 of 1958 with Criminal Appeal No. 174 of 1959; Decided on : 04-08-1961.

Statement to Police—Protection from being witness against oneself—Scope of—Giving of thumb impression etc. to police is not violative of constitutional protection.

We have come to the following conclusions:—

(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not ‘compulsion’.

(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showings parts of the body by way of identification are not included in the expression ‘to be a witness’.

(5) ‘To be a witness’ means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.

Counsel for the Parties

In Criminal Appeal No. 146 of 1958.M/s. H. R. Khanna and T. M. Sen, Advocates, for Appellant; Mr. S. P. Varma, Advocate (At State expense) for Respondent; Mr. M. C. Setalvad, Attorney-General for India and Mr. B. Sen, Advocate, (Mr. T. M. Sen, Advocate, with them) for Intervener No. 1. Mr. H. P. Wanchoo, Advocate, for Intervener No. 2; Mr. R. C. Dutta, Advocate, for Intervener No. 3.

In Criminal Appeals Nos. 110 and 11 of 1958.M/s. P. S. Safeer and R. S. Cheba, Advocates, for Appellant; Mr. S. M. Sikri, Advocate-General for the State of Punjab and Mr. N. S. Bindra, Senior Advocate, (Mr. D. Gupta, Advocate, with them), for Respondent.

In Criminal Appeal No. 174 of 1959.Sir S. M. Bose, Advocate-General for the State of West Bengal and Mr. B. Sen, Senior Advocate, (Mr. P. K. Bose. Advocate, with them), for Appellant.

Judgement

Sinha, C. J—These appeals have been heard together only in so far as they involve substantial questions of law as to the interpretation of the Constitution, with particular reference to cl. (3) of Art. 20. This larger Bench was constituted in order to re-examine some of the propositions of law laid down by this Court in the case of M. P. Sharma v. Satish Chandra, (1954) SCR 1077 : (AIR 1954 S C 300), because when one of these cases was heard by five of us, we felt that some of the propositions therein laid down may have been too widely stated, and therefore, required to be restated with more particularity. We have not heard counsel for the parties on the merits of the orders passed by the Courts below, but have confined the discussions at the Bar, in so far as they had any bearing on the questions of law relating to the interpretation of cl. (3) of Art. 20 of the Constitution.

2. It is not necessary to state in any detail the facts of each of the cases now before us. We shall, therefore, state only so much of the facts as have occasioned calling in aid of the provisions of cl. (3) of Art. 20 of the Constitution. In the first case, namely, Criminal appeal 146 of 1958, the State of Bombay is the appellant. The respondent was charged, along with another person, under S. 302, read with S. 34 of the I. P. C., as also under S. 19 (e) of the Indian Arms Act (XI) of 1878). The Trial Court found him guilty of those charges and sentenced him to imprisonment for life under S. 302, read with S. 34 of the I. P. C. and to a term of two years rigorous imprisonment for the offence under the Arms Act. At the trial the identification of the respondent, as one of the two alleged culprits, was the most important question to be decided by the Court. Besides other evidence, the prosecution adduced in evidence a chit-Ex. 5-alleged to be in his handwriting and said to have been given by him. In order to prove that Ex. 5 was in the handwriting of the respondent, the police had obtained from, him, during the investigation, three specimen handwritings of his on three separate sheets of paper which were marked as Exs. 27, 28 and 29. The disputed document, namely, Ex. 5 was compared with the admitted handwritings on Exs. 27, 28 and 29 by the Handwriting Expert whose evidence was to the effect that they are all writings by the same person. At the trial and in the High Court, the question as raised as to the admissibility of the specimen writings contained in Exs. 27, 28, and 29, in view of the provisions of Art. 20(3) of the Constitution. It is an admitted fact that those specimen writings of the accused had been taken by the police while he was in police custody, but it was disputed whether the accused had been compelled to give those writings within the meaning of cl. (3) of Art. 20. The plea of the accused that he was forced by the Deputy Superintendent of Police to give those writings has not been accepted by the learned trial Judge. But those documents have been excluded from consideration, as inadmissible evidence, on the ground that though there was no, threat or force used by the police in obtaining those writings from the accused person, yet in the view of the Court “the element of compulsion was implicit in his being at that time in police custody”. In this conclusion both the Trial Judge and the High Court have agreed. The identification of the accused person was also sought to be proved by the evidence of witnesses, who identified him at an identification parade. But the holding of the identification parade has not been sought to be brought within the prohibition of cl. (3) of Art. 20. After eliminating the Exs. 27, 28 and 29 from their consideration, the High Court, on a consideration of the other evidence in the case, came to the conclusion that the identity of the respondent had not been established beyond a reasonable doubt. Hence, giving him the benefit of doubt they acquitted him. The State of Bombay moved this Court and obtained special leave to appeal from the Judgment and Order of Acquittal, passed by the High Court. On these facts, the only questions of constitutional importance that this Bench has to determine are; (1) whether by the production of the specimen handwritings-Exs. 27, 28 and 29-the accused could be said to have been ‘a witness against himself’ within the meaning of Art. 20 (3) of the Constitution; and (2) whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwritings. This Bench is not concerned with the further question whether in all the circumstances disclosed by the evidence in this case, the accused could be said to have been compelled, as a matter of fact, to give those specimens.

3. In Criminal Appeals 110 and 111 of 1958, which arose out of the same set of facts, the accused person has been convicted by the Courts below under Ss. 380 and 457 of the I. P. C., as also under s. 19 (f) of the Indian Arms Act. The facts of the case necessary for bringing out the points in controversy are that a shop in Hissar in Punjab was burgled. In the course of the burglary four double-barrelled guns, one single-barrelled gun and a rifle were stolen. During his interrogation by the police at the investigation stage, the appellant is alleged to have given the information that out of the arms stolen from the shop at Hissar he had buried one. 22 bore rifle, two. 12 bore double-barrelled guns and one. 18 single-barrelled gun at a certain place. It is alleged that as a consequence of the information thus given by the accused and on his pointing out the exact location where these buried articles could be found, the rifles and guns were actually recovered. During the investigation the police had taken possession of certain glass panes and phials from the burgled shop which bore some palm and finger impressions (Exs. P 10 to P 12). In order to compare the impressions on those glass panes and phials with those of the accused, the investigating police officer got the impressions of the palms and fingers of the accused taken in the presence of a Magistrate. On the evidence adduced by the prosecution, including the fact of the recovery of the firearms and the evidence of the identity of the impressions of the accused taken as aforesaid, he was convicted and sentenced by the Courts below to certain terms of imprisonment and was also ordered to pay a fine of one thousand rupees. On appeal, the sentence of fine and imprisonment was modified by the Court of Appeal. In revisions in the High Court, both the revisional applications were dismissed. The convicted person prayed for and obtained the necessary certificate of fitness under Art. 134 (1) (e) of the Constitution from the High Court of Punjab. The points raised in this Court were; (1) that S. 27 of the Indian Evidence Act is violative of Art. 14 of the Constitution; and (2) the impressions, of the appellant’s palms and fingers taken from him after his arrest, which were compared with the impressions on the glass panes and phials, were not admissible evidence in view of the provisions of Art. 20 (3) of the Constitution. Though the provisions of Ss. 5 and 6 of the Identification of Prisoners Act (XXXIII of 1920) have not in terms been attacked as ultra vires Art. 20 (3) of the Constitution, the effect of the argument based on that article is to bring into controversy the constitutionality of Ss. 5 and 6 of the Act. As a mater of fact, one of the propositions of law to be urged in support of the appeals is stated in these terms;

“that Ss. 5 and 6 of the Identification of Prisoners Act, 1920, read with Art. 20 (3) of the Constitution render the evidence of measurements to be inadmissible”.

4. In the last case, Criminal Appeal 174 of 1959, the State of West Bengal has preferred this appeal by special leave granted by this Court under Art. 136 (1) of the Constitution against the judgment and order of the High Court at Calcutta dated 4th June 1959, passed in its revisional jurisdiction, against an order of the Magistrate, First Class, Howrah, directing the respondent to give his specimen writing and signature under S. 73 of Indian Evidence Act. It is only necessary to state the following facts in order to bring out the questions of law bearing on the interpretation of the Constitution. During the investigation of a criminal case relating to trafficking in contraband opium, the respondent’s residence was searched and certain quantity of contraband opium was alleged to have been found in his possession. The respondent, along with another person, was produced before a Magistrate of the 1st Class at Howrah and was later released on bail. From the materials and statements obtained during the investigation of the case by the police, it was considered that there were reasonable grounds to believe that the endorsement on the back of certain railway receipts for consignment of goods seized at Howrah Railway Station was in the handwriting of the respondent, and it was, therefore necessary to take his specimen writing and signature for the purpose of comparison and verification. When the accused were produced before the Magistrate, the Investigating Officer made a prayer to the Magistrate for taking specimen writing and signature of the respondent. On an adjourned date when the accused persons, including the respondent, were present in the Court of the Magistrate, the respondent declined to give his specimen writing and signature, contending that Art. 20 (3) of the constitution prohibited any such specimens being taken against the will of the accused. After hearing the parties, the learned Magistrate overruled the objection on behalf of the accused and allowed the prayer by the prosecution for taking the specimen writing and signature of the respondent. The respondent moved the High Court at Calcutta under S. 439 of the Criminal P. C. and Art. 227 of the Constitution. The case was heard by a Division Bench consisting of J. P. Mitter and Bhattaharyya, JJ., on July 2 and 3, 1958, but the judgment was not delivered until the 4th of June, 1959. The Court held that the prohibition contained in Art. 20 (3) of the Constitution applied to the case of writing and signature to be taken as directed by the learned Magistrate. The Court relied upon the decision of this Court in M. P. Sharma’s case, (1954) SCR 1077. In coming to this conclusion, the Division Bench disagreed with the previous decision of another Division Bench of that Court in the case of Sailendra Nath Sinha v, The State, AIR 1955 Cal 247, which had laid down that a mere direction under S. 73 of the Evidence Act to a person accused of an offence to give his specimen writing did not come within the prohibition of Art. 20(3) of the Constitution. The earlier Bench further held that the decision of this Court in Sharma’s case, (1954) SCR 1077, referred to above , did not govern the case of direction given by the Court under s. 73 of the Evidence Act for giving specimen writing. Instead of referring the question to a larger Bench, the later Division Bench took upon itself to pronounce against the considered view of that Court in the earlier decision. The State of West Bengal naturally had to come up to this Court to get the constitutional issues determined because the issues raised were of far-reaching importance in the investigation and trial of criminal cases. The main question which arises for determination in this appeal is whether a direction given by a Court to an accused person present in Court to give his specimen writing and signature for the purpose of comparison under the provisions of s. 73 of the Indian Evidence Act infringes the fundamental right enshrined in Art. 20 (3) of the Constitution.

5. The arguments at the Bar may be classified as taking three distinct lines. The first line, on the one extreme, may be said to have been taken by Mr. Sikri, the Advocate General of Punjab, and which may be characterised as a narrow view, runs as follows: Clause (3) aforesaid, in view of its setting, its history and the policy underlying, the privilege accorded by the Constitution to an accused person, should not be applied at the stage of investigation of an offence. It should be confined to cases of compulsory extraction of incriminating statements or communications by a accused person in Court, the expression ‘compelled to be a witness’ being understood as meaning ‘being compelled to give oral testimony.’ It does not include the compulsory production of documents. Similarly, it does not prohibit the compulsory exhibition or examination of the body of the accused, or any part of it, or the taking of specimen writing, thumb impression, impression of the palm or the feet or the fingers of an accused. Whether or not there has been compulsion should be judged by the nature of the action taken by the authority, or the Court that determines the controversy, and not the state of mind of the accused.

6. On the other extreme is the argument by Mr. S. P. Varma, for the accused in the first case, who contended that the clause aforesaid of the Constitution gives complete protection of the widest amplitude to an accused person, irrespective of the time and place and of the nature of the evidence, whether it is oral or documentary or material. The extreme form which his argument took can best be stated in his own words as follows:

“Anything caused, by any kind of threat or inducement, to be said or done, by a person, accused or likely to be accused of any offence, by non-voluntary positive act or speech of that person which furthers the cause of any prosecution against him or which results or is likely to result in the incrimination of that person qua any offence, is violative of the fundamental right guaranteed under cl. 3 of Art. 20 of the Constitution of India.”

According to his argument, if an accused person makes any statement or any discovery, there is not only a rebuttable presumption that he had been compelled to do so, but that it should be taken as a conclusive proof of that inferential fact. Any kind of inducement, according to him, is also included in the expression ‘compulsion’ by the police or elsewhere. The test, according to him, is not the volition of the accused but the incriminatory nature of the statement or communication. Hence, any statement made to a police officer, while in police custody, brings the same within the prohibitory ambit of the clause of the Constitution. On the face of them, the propositions propounded by Mr. Varma are much too broadly and widely stated to be accepted.

7. The third view, which may be characterised as an intermediate view, was advocated by the learned Attorney. General, appearing for the Union. According to him, a person seeking protection under the clause must satisfy all the four constituent elements contained in cl. (3) of Art. 20 namely, (1) he must be an accused person; (2) he must have been compelled; (3) the compulsion must be to be a witness, and (4) against himself. Compulsion, according to him, means coercion or constraint and does not include mere asking by the police to do a certain thing or the direction by a Court to give a thumb impression or specimen writing. In other words compulsion has to be equated to what has been sometimes characterised as “third degree” methods to extort confessional statements. “To be a witness” is an expression which must be understood in consonance with the existing law of evidence and criminal procedure, e. g., Ss. 27 and 73 of the Evidence Act and Ss. 94 and 96 of the Code of Criminal Procedure. Though, according to English Law, the expression is confined to oral testimony, he was prepared to go to the length of conceding that any statement, whether oral or in writing by an accused person, transmitting his knowledge disclosing relevant facts of which he was aware, would amount to ‘being a witness’ against himself. But mere production of some material evidence, by itself, would not come within the ambit of the expression ‘to be a witness.’

8. The several questions for decision arising out of this batch of cases have to be answered with reference to the provisions of cl. (3) of Art. 20 of the Constitution which is in these terms:

“No person accused of any offence shall be compelled to be a witness against himself.”

These provisions came up for consideration by the Full Court in the case of (1954) SCR 1077 : (AIR 1954 S C 300). Though the question directly arising for decision in that case was whether a search and seizure of documents under the provisions of Ss. 94 and 96 of the Code of Criminal Procedure came within the ambit of the prohibition of cl. (3) of Art. 20 of the Constitution, this Court covered a much wider field. Besides laying down that the search and seizure complained of in that case were not within the prohibition, this Court examined the origin and scope of the doctrine of protection against self-incrimination with reference to English Law and the Constitution of the United States of America, with particular reference to the Fourth and Fifth Amendments. On an examination of the Case Law in England and America and the standard text books on Evidence, like Phipson and Wigmore, and other authorities, this Court observed as follows:

“Broadly stated the guarantee in Art. 20 (3) is against “testimonial compulsion.” It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The paras used in Article 20 (3) is “to be a witness.” A person can “be a witness” not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see section 119 of the Evidence Act) or the like. “To be a witness” is nothing more than “to furnish evidence,” and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word “witness,” which must be understood in its natural sense, i.e., as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the Court room. The phrase used in Article 20 (3) is “to be a witness” and not to “appear as a witness” : It follows that the protection afforded to an accused in so far as it is related to the phrase “to be a witness” is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case.”

9. This Court did not accept the contention that the guarantee against testimonial compulsion is to be confined to oral testimony at the witness-stand when standing trial for an offence. The guarantee was, thus, held to include not only oral testimony given in Court or out of Court, but also to statements in writing which incriminated the maker when figuring as an accused person. After having heard elaborate arguments for and against the views thus expressed by this Court, after full deliberation, we do not find any good reasons for departing from those views. But the Courts went on to observe that “to be a witness” means “to furnish evidence” and includes not only oral testimony or statements in writing of the accused but also production of a thing or of evidence by other modes. It may be that this Court did not intend to lay down-certainly it was not under discussion of the Court as a point directly arising for decision-that calling upon a person accused of an offence to give his thumb impression, his impression of palm or fingers or of sample handwriting or signature comes within the ambit of “to be a witness,” which has been equated to “to furnish evidence.” Whether or not this Court intended to lay down the rule of law in those wide terms has been the subject matter of decisions in the different High Courts in this country. Those decisions are, by no means, uniform; and conflicting views have been expressed even in the same High Court on different occasions. It will serve no useful purpose to examine those decisions in detail. It is enough to point out that the most recent decision, to which our attention was called, is of a Full Bench of the Kerala High Court in the case of State of Kerala v. K. K. Sankaran Nair, AIR 1960 Kerala 392 (FB). In that case, Ansari C. J., who delivered the opinion of the Court, has made reference to and examined in detail the pronouncements of the different High Courts. Ultimately he came to the conclusion that the decision of this Court in Sharma’s case, (1954) SCR 1077: (AIR 1954 S C 300) also covered the case of a specimen handwriting given by an accused person, under compulsion.

10. “To be a witness” may be equivalent to “furnishing evidence” in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. “Furnishing evidence” in the latter sense could not have been within the contemplation of the Constitution makers for the simple reason that-though they may have intended to protect an accused person from the hazards of self- incrimination, in the light of the English Law on the subject-they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect a accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. Furthermore it must be assumed that the Constitution makers were aware of the existing law, for example, S. 73 of the Evidence Act or Ss. 5 and 6 of the Identification of Prisoners Act (XXXIII of 1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken, if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so : ‘Measurements’ include finger impressions and foot-print impressions. If any such person who is directed by Magistrate, under S. 5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs, it has been declared lawful by S. 6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly S. 73 of the Evidence Act authorises the Court to permit the taking of finger impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison.

11. The matter may be looked at from another point of view. The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not “to be a witness.” “To be a witness” means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said ‘to be a witness’ to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision is Sharma’s case, (1954) SCR 1077 that the prohibition in cl. (3) of Art. 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. The accused may have documentary evidence in his possession which may throw light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document in accordance with the provisions of S. 139 of the Evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, he cannot be cross-examined. Of course, he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in Court otherwise than by reference to the contents of the documents. In our opinion, therefore; the observation of this court in Sharma’s case. (1954) SCR 1077 that S. 139 of the Evidence Act has no bearing on the connotation of the word ‘witness’ is not entirely well-founded in law. It is well established that cl. (3) of Art. 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a ‘personal testimony.’ The giving of a ‘personal testimony’ must depend upon his volition. He can make any kind of statement or ay refuse to make any statement. But his finger impressions or his handwriting, inspite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression ‘to be a witness.’

12. In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony.’

13. Similarly, during the investigation of a crime by the police, if an accused person were to point out the place where the corpus delicti was lying concealed and in pursuance of such an information being given by an accused person, discovery is made within the meaning of S. 27 of the Evidence Act, such information and the discovery made as a result of the information may be proved in evidence even though it may tend to incriminate the person giving the information, while in police custody. Unless it is held that the provisions of S. 27 of the Evidence Act, in so far as they make it admissible evidence which has the tendency to incriminate the giver of the information, are unconstitutional as coming within the prohibition of cl. (3) of Art. 20, such information would amount to furnishing evidence. This Court in Sharma’s case, (1954) SCR 1077: (AIR 1954 S C 300) was not concerned with pronouncing upon the constitutionality of the provisions of S. 27 of the Evidence Act. It could not, therefore, be said to have laid it down that such evidence could not be adduced by the prosecution as the trial of the giver of the information for an alleged crime. The question whether S. 27 of the Evidence Act was unconstitutional because it offended Art. 14 of the Constitution was considered by this Court in the case of State of Uttar Pradesh v. Deomen Upadhyaya, (AIR 1960 SC 1125). It was held by this Court that S. 27 of the Evidence Act did not offend Art. 14 of the Constitution and was, therefore, ‘intra vires’. But the question whether it was unconstitutional because it contravened the provisions of cl. (3) of Art. 20 was not considered in that case. That question may, therefore, be treated as an open one. The question has been raised in one of the cases before us and has, therefore, to be decided. The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of cl. (3) of Art. 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of S. 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion had been used in obtaining the information.

14. In this connection the question was raised before us that in order to bring the case within the prohibition of cl. (3) of Art. 20, it is not necessary that the statement should have been made by the accused person at a time when he fulfilled that character; it is enough that he should have been an accused person at the time when the statement was sought to be proved in Court, even though he may not have been an accused person at the time he had made that statement. The correctness of the decision of the Constitution Bench of this Court in the case of Mohamed Dastagir v. The State of Madras, (1960) 3 SCR 116, was questioned because it was said that it ran counter to the observations of the Full Court in Sharma’s case, (1954) SCR 1077. In the full court decision of this Court this question did not directly arise; nor was it decided. On the other hand, this Court, in Sharma’s case, (1954) SCR 1077, held that the protection under Art. 20 (3) of the Constitution is available to a person against whom a formal accusation had been levelled, inasmuch as a First Information Report had been lodged against him. Sharma’s case, (1954) SCR 1077, therefore, did not decide anything to the contrary of what this Court said in (1960) 3 SCR 116. The latter decision in our opinion lays down the law correctly.

15. In order to bring the evidence within the inhibitions of cl. (3) of Art. 20 it is must bee shown not only that the person making the statement was an accused at the time he made it and that it had a material bearing on the criminality of the maker of the statement, but also that he was compelled to make this statement. ‘Compulsion’ in the context, must mean what in law is called ‘duress’. In the Dictionary of English Law by Earl Jowitt, ‘duress’ is explained as follows:

“Duress is where a man is compelled to do an act by injury, beating or unlawful imprisonment (sometimes called duress in strict sense) or by the threat of being killed, suffering some grievous bodily harm, or being unlawfully imprisoned (sometimes called menace, or duress ‘permines). Duress also includes threatening beating or imprisonment of the wife, parent or child of a person.”

The compulsion in this sense is a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore, extorted. Hence, the mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not compulsion within the meaning of Art. 20 (3) Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was in fact exercised. In other words, it will be a question of fact in each case to be determined by the Court on weighing the facts and circumstances disclosed in the evidence before it.

16. In view of these considerations, we have come to the following conclusions:-

1. An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

2. The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not ‘compulsion’.

3. ‘To be a witness’ is not equivalent to ‘furnishing evidence’ in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.

4. Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showings parts of the body by way of identification are not included in the expression ‘to be a witness’.

5. ‘To be a witness’ means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.

6. ‘To be a witness’ in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.

7. To bring the statement in question within the prohibition of Art. 20 (3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.

17. The appeals will now be listed for hearing on merits in accordance with the above principles.

18. Das Gupta, J.—Is a person compelled “to be a witness” against himself within the meaning of Art. 20 (3) of the Constitution when he is compelled to give his specimen handwriting or signature, or impressions of his fingers, palm or foot to the investigating officer? Is he compelled “to be a witness” against himself within the meaning of the same constitutional provisions when he is compelled to give his specimen handwriting and signature for the purpose of comparison under the provisions of S. 73 of the Indian Evidence Act? These are the main questions canvassed before us and they have both been answered in the negative in the judgment just pronounced by my Lord the Chief Justice. We agree with these answers; but as we have reached the same conclusion, by a somewhat different approach, and for different reasons, these have to be briefly indicated.

19. The question as regards the meaning to be attached to the words “to be a witness” as used in Art. 20 (3) of the Constitution came up for consideration in M. P. Sharama’s Case, 1954 SCR 1077: (AIR 1954 SC 300). It was heard by all the eight judges who constituted the Court at the time, and they came to a unanimous decision. The Court in that case had to decide whether search and seizure of documents under Ss. 94 and 96, Criminal P. C., is a compelled production of the same so as to infringe the provisions of Art. 20(3) of the Constitution. After pointing out that the guarantee in Art. 20 (3) was against “testimonial compulsion,” Jagannadhadas, J., speaking for the Court said :

“The phrase used in Art. 20 (3) is “to be a witness.” A person can “be a witness” not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see S. 119 of the Evidence Act) or the like. “To be a witness” is nothing more than “to furnish evidence” and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes.”

He next observed that S. 139 of the Evidence Act which says that a person producing a document on summons is not a witness, is really meant to regulate the right of cross-examination and cannot be “a guide to the connotation of the word “witness” in Art. 20 (3), which must be understood in its natural sense, i. e., as referring to a person who furnishes evidence,” and then proceeded :

“Indeed, every positive volitional act which furnishes evidence is testimony and testimony compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part.”

20. It was further stated that there was no reason to think that the protection in respect of the evidence so procured was confined to what transpired at the trial in the court room.

21. If the learned judges had hoped that by their exhaustive judgment they would end all disputes about the limits of the protection granted by Art. 20 (3), these hopes were soon shattered. Questions were before long raised before the different High Courts, as to whether on the interpretation of the words “to be a witness” given by this Court in Sharma’s Case. (1954) SCR 1077 compelling an accused person to give his finger prints or impressions of palm or foot or a specimen handwriting in the course of investigation amounted to an infringement of Art. 20 (3). The conclusions reached by the different High Courts, and in one case at least, by two Benches of the same High Court were different. That is why it has become necessary to examine the question again, and see how far, if at all, the interpretation given in Sharma’s Case (1954) SCR 1077 requires modification.

22. The complaint against the interpretation given in Sharma’s case, (1954) SCR 1077 is that it does not solve the problem as to what the words “to be a witness” mean; but merely postpones the difficulty, of solving it by substituting the words “to furnish evidence” for the words, “to be witness.” It throws no light, it is said on what is “furnishing evidence,” and unless that is clear, little is gained by saying that “to be a witness” is to “furnish evidence.” Rival interpretations were suggested before us which it was claimed on behalf of the protagonists will solve the problem once for all. One of the propositions put forward was that ‘to be a witness” as used in Art. 20 (3) cannot refer to anything said or done at the stage of investigation of an offence. We agree with our learned brethren that this is an unduly narrow construction. As was pointed out in Sharma’s Case the phrase used n Art. 20 (3) is “to be a witness” and not “to appear as a witness.” That by itself justifies the conclusion “that the protection afforded to an accused in so far as it is related to the phrase “to be a witness” is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. “If the protection was intended to be confined to being a witness in Court then really it would been an idle protection. It would have be completely defeated by compelling a person to give all the evidence outside Court and then, having what he was so compelled to do, proved in Court through other witnesses. An interpretation which so completely defeats the constitutional guarantee cannot, of course, be correct. The contention that the protection afforded by Art. 20 (3) is limited to the stage of trial must therefore be rejected.

23. That brings us to the suggestion that the expression “to be a witness” must be limited to a statement whether oral or in writing by an accused person imparting knowledge of relevant facts; but that mere production of some material evidence, whether documentary or otherwise would not come within the ambit of this expression. This suggestion has found favour with the majority of the Bench; we think however that this is an unduly narrow interpretation. We have to remind ourselves that while on the one hand we should bear in mind that the Constitution-makers could not have intended to stifle legitimate modes of investigation we have to remember further that quite clearly they thought that certain thing should not be allowed to be done, during the investigation, or trial, however helpful they might seem to be to the unfolding of truth and an unnecessary apprehension of disaster to the police system and the administration of justice, should not deter us from giving the words their proper meaning. It appears to us that to limit meaning of the words “to be a witness” in Art. 20(3) in the manner suggested would result in allowing compulsion to be used in procuring the production from the accused of a large number of documents, which are of evidentiary value, sometimes even more so than any oral statement of a witness might be. Suppose, for example, an accused person has in his possession, a letter written to him by an alleged co-conspirator in reference to their common intention in connection with the conspiracy for committing a particular offence. Under S. 10 of the Evidence Act this document is a relevant fact as against the accused himself for the purpose of proving the existence of the conspiracy and also for the purpose of showing that any such person was a party to it. By producing this, the accused will not be imparting any personal knowledge of facts; yet it would certainly be giving evidence of a relevant fact. Again, the possession by an accused of the plan of a house where burglary has taken place would be a relevant fact under S. 8 pf the Evidence Act as showing preparation for committing theft. By producing this plan is he not giving evidence against himself?

24. To a person not overburdened with technical learning, the giving of evidence, would appear to be the real function of a witness. Indeed English literature is replete with instances of the use of the word “witness” as meaning “evidence.” To give one example; Shakespeare’s Horatio speaking to Hamlet says :

“Season your admiration for a while With an attent ear, till I may deliver, Upon the witness of these gentlemen, This marvel to you” (Hamlet, Act I Scene, II).

25. There can be no doubt that to the ordinary user of English words, the word “witness” is always associated with evidence, so that to say that to be a witness is to furnish evidence is really to keep to the natural meaning of the words.

26. But, what is the purpose of evidence? Section 3 of the Indian Evidence Act defines evidence thus:

“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 enquiry; such statement are called oral evidence; (2) all documents produced for the inspection of the court; such documents are called documentary evidence”

27. Section 5 states that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are “herein-after declared to be relevant and of no others”. Then follow several sections laying down what are relevant facts.

28. It is clear from the scheme of the various provisions, dealing with the mater that the governing idea is that to be evidence, the oral statement or a statement contained in a document, shall have a tendency to prove a fact-whether it be a fact in issue or a relevant fact-which is sought to be proved. Though this definition of evidence is in respect of proceedings in Court it will be proper, once we have come to the conclusion, that the protection of Art. 20 (3) is available even at the stage of investigation, to hold that at that stage also the purpose of having a witness is to obtain evidence and the purpose of evidence is to prove a fact.

29. The illustrations we have given above show clearly that it is not only by imparting of his knowledge that an accused person assists the proving of a fact; he can do so even by other means, such as the production of documents which though not containing his own knowledge would have a tendency to make probable the existence of a fact in issue of a relevant fact.

30. Much has been written and discussed in England and America as regards the historical origin and development of the rules against “testimonial compulsion”. These matters of history, however interesting they be need not detain us and we must also resist the temptation of referring to the numerous cases especially in America where the concept of “testimonial compulsion” has been analysed. It is sufficient to remember that long before our Constitution came to be framed the wisdom of the policy underlying these rules had been well recognised. Not that there was no view to the contrary; but for long it has been generally agreed among those who have devoted serious thought to these problems that few things could be more harmful to the detection of crime or conviction of the real culprit, few things more likely to hamper the disclosure of truth than allow investigators or prosecutors to slide down the easy path of producing by compulsion, evidence, whether oral or documentary, from an accused person. It has been felt that the existence of such an easy, way would tend to dissuade persons in charge of investigation or prosecution from conducting diligent search for reliable independent evidence and from sifting of available materials with the care necessary for ascertainment of truth. If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of laborious investigation and prolonged examination of other men, materials and documents? It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law “to sit comfortably in the shade rubbing read pepper into a poor devil’s eyes rather than go about in the sun hunting up evidence” (Stephen, History of Criminal Law, p. 442). No less serious is the danger that some accused persons at least, may be induced to furnish evidence against themselves which is totally false-out of sheer despair and an anxiety to avoid an unpleasant present. Of all these dangers the Constitution-makers were clearly well aware and it was to avoid them that Art. 20 (3) was put in the Constitution. It is obvious however that these dangers remain the same whether the evidence which the accused is compelled to furnish is in the form of statements oral or written about his own knowledge or in the shape of documents or things, which though not transmitting knowledge of the accused person directly helps the court to come to a conclusion against him. If production of such documents, or things is giving evidence then the person’s producing it is being a witness. On what principle or reason can it be said that this does not amount to “being a witness” within the meaning of Art. 20 (3)? We find none.

31. We can therefore find no justification for thinking that “to be a witness” in Art 20 (3) means to impart personal knowledge and find no reason for departing from what this Court said in Sharma’s case (1954) SCR 1077 : (AIR 1954 S C 300) that ‘to be a witness” is nothing more than ‘to furnish evidence”, and such evidence can be furnished through lips or by production of a thing or of a document or in other modes.”

32. The question then is” Is an accused person furnishing evidence when he is giving his specimen handwriting or impressions of his fingers, or palm or foot? It appears to us that he is : For these are relevant facts, within the meaning of S. 9 and S. 11 of the Evidence Act. Just as an accused person is furnishing evidence and by doing so, is being a witness, when he makes a statement that he did something, or saw something, so also he is giving evidence and so is being a “witness”, when he produces a letter the contents of which are relevant under S. 10, or is producing the plan of a house where a burglary has been committed, or is giving his specimen handwriting or impressions of his finger, palm or foot. It has to be noticed however that Art. 20 (3) does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself.The question that arises therefore is: Is an accused person furnishing evidence against himself, when he gives his specimen handwriting, or impressions of his fingers, palm or foot? The answer to this must in our opinion be in the negative.

33. The matter becomes clear, when we contrast the giving of such handwriting or impressions, with say, the production of a letter admissible in evidence under S. 10 , or the production of the plan of a burgled house. In either of these two latter cases, the evidence given tends by itself to incriminate the accused person. But the evidence of specimen handwriting or the impressions of the accused person’s fingers, palm or foot will incriminate him, only it on comparison of these with certain other handwritings or certain other impressions, identity between the two sets is established,. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself. So, when an accused person is compelled to give a specimen handwriting or impressions of his finger, palm or foot, it may be said that he has been compelled to be a witness; it cannot however be said that he has been compelled to be a witness against himself.

34. This view, it may be pointed out, does not in any way militate against the policy underlying the rule against “testimonial compulsion” we have already discussed above. There is little risk, if at all, in the investigator or the prosecutor being induced to lethargy or inaction because he can get such handwriting or impressions from a accused person. For, by themselves they are of little or of no assistance to bring home the guilt of an accused. Nor is there any chance of the accused to mislead the investigator into wrong channels by furnishing false evidence. For, it is beyond his power to alter the ridges or other characteristics of his hand palm or finger or to alter the characteristics of his handwriting.

35. We agree therefore with the conclusion reached by the majority of the Bench that there is no infringement of Art. 20 (3) of the Constitution by compelling an accused person to give his specimen handwriting or signature; or impressions of his fingers, palm or foot to the investigating officer or under orders of a court for the purpose of comparison under the provisions of S. 73 of the Indian Evidence Act; though we have not been able to agree with the view of our learned brethren that “to be a witness” in Art. 20 (3) should be equated with the imparting of personal knowledge or that an accused does not become a witness when he produces some document not in his own handwriting even though it may tend to prove facts in issue or relevant facts against him.

36. In Criminal Appeals Nos. 110 and 111 of 1958 a further question as regards the validity of S. 27 of the Evidence Act was raised. It was said that the receipt of information from an accused person in the custody of a policy officer which can be proved under S. 27 is an infringement of Art. 20 (3). Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It cannot be disputed that by giving such information the accused furnishing evidence and therefore is a “witness” during the investigation. Unless however he is “compelled” to give the information he cannot be said to be “compelled” to be a witness; and so Art. 20 (3) is not infringed. Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases where an accused in custody is compelled to give the information later on sought to be proved under S. 27. There will be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give information it will be an infringement of Art. 20 (3); but there is no such infringement where he gives the information without any compulsion. Therefore compulsion not being inherent or implicit in the fact of the information having been received from a person in custody, the contention that section 27 necessarily infringes Art. 20 (3) cannot be accepted.

37. A question was raised in the course of the discussion as to when a person can be said to have been “compelled” within the meaning of Art. 20 (3). One view is that there must be an element of constraint or coercion in the physical sense before it can be said that an accused person has been “compelled”. The other view is that in addition to cases where there has been such constraint or coercion an accused should be held to have been “compelled” to be a witness whenever there has been inducement or promise which persuaded the accused to be a witness, even though there has been no such coercion or constraint. In Criminal Appeals Nos. 110 and 111 the information proved under S. 27 of the Evidence Act was that Pokhar Singh had buried certain fire-arms in village Badesra under Toori and these were recovered when he pointed these out to the investigating police officer. This information was proved under S. 27. But it does not appear to have been suggested that the accused was made to give this information by inducement or threat or promise. On the facts therefore there is no question of the information having been received by compulsion. The question whether any inducement or promise which leads an accused person to give information amounts to compulsion or not does not therefore fall to be decided.

38. It may be pointed out that in the other appeals, viz., Criminal Appeal No. 146 of 1958 and Criminal Appeal No. 174 of 1959, also, this question does not arise for consideration in view of our conclusion that in any case the accused does not become a “witness” against himself by giving his specimen signatures or impressions of his fingers or palms.

39. It appears to us to be equally unnecessary to decide another question which was mooted in the course of the hearing, viz., whether the prohibition of Art. 20 (3) operates only after a person has been accused of an offence or even before that stage. Admittedly, in all these cases the person on whose behalf the protection under Art. 20 (3) is claimed gave the specimen signatures or impressions of fingers or palms after he had been actually accused of an offence.

40. We think it right therefore not to express any opinion on any of these questions.

EVIDENCE, Law Question Papers

DESCRIPTIVE QUESTIONS ON INDIAN EVIDENCE ACT [ BEGINNER LEVEL]

11 Jul 2018 Advocatetanmoy

Explain what is not evidence before a court of law. In this line whether an affidavit can be said as evidence of a fact.
What is fact in issue? How it is different from relevant fact?
Whether a Dying declaration is a conclusive proof for establishing dowry death?
What is permissible hearsay evidence?
Whether inferential evidence has any place under the scheme of Indian Evidence Act
Whether Circumstantial evidence needs corroboration?
Police submitted several documents with his Report, but at the time of trial, the prosecution failed to identify a single document to mark as Court Exhibit- Explain the circumstance with the help of law.
How to prove motive and intention in a rape case?
At the time of search for an offence of Murder, police recovered a laptop, some incriminating photos from the hard disk, how the prosecution shall prove the relevancy of recovered articles?
What is an admission ? Whether admission is direct evidence or indirect evidence?
What is secondary evidence? How to prove a xerox copy of a certified registered gift deed?
How to prove a Will, where both the attesting witnesses died earlier?
In a suit for partition, the plaintiff produced Land Records – whether he needs to prove the same?
What is Estoppel? What is the evidentiary value of it?
In which cases Indirect oral evidence shall be permitted?
where evidence recorded through VDO Conferencing in a Criminal trial is valid?
Explain the evidentiary value of CCTV footage?
Distinguish between the presumption of law and presumption of facts?
Whether illegally collected Evidence by police is admissible?
Elucidate the credibility of Defence evidence in a murder trial.
what is a judicial proceeding?
An eyewitness said there was rape, but the doctor said there was no rape – who shall be believed.
Explain section 144 of the Evidence Act
Judge to decide as to admissibility of evidence u/s 136- Explain.
When a witness shall be compelled to answer a specific question? whether a scandalous question can be asked u/s 147 ?

Write short notes :

Res gastae
Accomplice
Test identification parade
plea of alibi
leading question
Cross-examination
Character evidence
Number of witnesses
Suicide note
Extra-Judicial confession
Hostile witness
Public records
Benefit of doubt
child witness
corpus delicti
Evidence of approver
Identification in court
The probative value of a piece of evidence
Police custody
Discovery
FSL Report
The opinion of Handwriting Expert
private document
Onus probandi
Refreshing memory

EVIDENCE

Examine the evidentiary value of Accomplice

10 Jul 2018 Advocatetanmoy

Section 133 reads as under :

133. Accomplice. An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

Conviction can be based on the evidence of approver but as per Section 114, the care has to be taken by the Court that it should corroborated in material particulars. The combined effect of Section 114(b) and Section 133 of the Evidence Act is that though a conviction can be based on uncorroborated testimony of an accomplice but as a rule of prudence, it is unsafe to place reliance on the uncorroborated testimony of an approver as per illustration (b) of Section 114 of the Evidence Act.

It is observed by Hon’ble Supreme Court in the case of It is observed by Hon’ble Supreme Court in the case of Suresh Chandra Bahri Vs. State of Bihar reported in AIR 1994 SC 2420 as under :

Section 133 deal with the testimony of an accomplice. It contemplates that an accomplice shall be a competent witness against an accused person ; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The first part envisages that an accomplice in other words a guilty companion in crime shall be a competent witness while the second part states that conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. But if one read S. 133 with illustration (b) of S. 114 it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the Legislature because quite contrary to what is contained in S. 133 illustration (b) to S. 114 lays down “that an accomplice is unworthy of credit, unless he is corroborated in material particulars”. A combined reading of the two provisions that is S. 133 and illustration (b) of S. 114 go to show that it was considered necessary to place the law of accomplice evidence on a better footing by stating in unambiguous terms that according to S. 133 a conviction is “not illegal or in other words not unlawful” merely because it is founded on the uncorroborated testimony of an accomplice while accepting that an accomplice is a competent witness. But at the same time the Legislature intended to invite attention to the illustration (b) of S. 114 with a view to emphasise that the rule contained therein as well as in S. 133 are parts of one and the same subject and neither can be ignored in the exercise of judicial discretion except in cases of very exceptional nature. However, the difficulty in understanding the combined effect of the aforementioned two provisions arises largely due to their placement at two different places of the same Act. It may be noticed that illustration (b) attached to S. 114 is placed in Chap VII of Evidence Act while S. 133 is inserted in Chap. IX of the Act. The better course was to insert the illustration (b) to S. 114 as an explanation or in any case as proviso to S. 133 of the Act instead of their insertion at two different places and that too in different chapters of Evidence Act. In any case since an approver is guilty companion in crime and, therefore, illustration (b) to S. 114 provides a rule of caution to which the Courts should have regard. It is now well settled that except in circumstances of special nature it is the duty of the Court to raise the presumption in S. 114 illustration (b) and the Legislature requires that the Courts should make the natural presumption in that section. Though a conviction can be based on uncorroborated evidence of an accomplice but as a rule of prudence it is unsafe to place reliance on the uncorroborated testimony of an approver as required by illustration (b) of S. 114.

Hon’ble Supreme Court in the case of Central Bureau of Investigation Vs. Ashok Kumar Aggarwal and anr. [(2013) 15 SCC 222] has observed as under :

Section 114 Illustration (b) and Section 133 of the Evidence Act, 1872 provide for the same that an accomplice is a competent witness and that his testimony can be relied upon but depending upon the quality of the evidence. While Section 133 reads that “Accomplice is a competent witness and a conviction can be maintained on his evidence”, Illustration (b) of Section 114 provides for presumption that “an accomplice is unworthy of credit, unless he is corroborated in material particulars”. Thus, in practice conviction of a person on such evidence should not take place except under very rare and exceptional circumstances. Usually substantial corroboration is required. This provision incorporates a rule of caution to which the court must have regard.
(Vide Sk. Zakir v. State of Bihar, Niranjan Singh v. State of Punjab and State of T.N. v. Suresh.)

CIVIL

What is the value of RTI reply in Evidence

9 Jul 2018 Advocatetanmoy

The Right to Information Act was enacted in the year 2005 and came into force with effect from 15-06-2005. It provides for designation of a Public Information Officer for obtaining information with exemptions from such disclosure and the grounds for rejection in appropriate cases. Section 22 of the Act says that the provisions of the said Act shall have overriding effect on the provisions of other enactments including Official Secrets Act, which are not inconsistent.

Chapter-V of the Evidence Act, 1872 deals with documentary evidence. Section 61 says that the contents of the documents may be proved either by primary evidence or by secondary evidence. The primary evidence is stated to be the document itself produced for the inspection of the Court under Section 62 of the Act. Secondary evidence is defined under Section 63 of the Act. As per Section 64 of the Act, normally, the documents must be proved by primary evidence except in the cases mentioned under the provisions of the Act. Section 65 provides for the circumstances under which secondary evidence may be given. Public documents are defined under Section 74 of the Act. Section 75 of the Act says that all documents other than mentioned in Sec.74 are private. Section 77 says that certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. The proof of different categories of public documents is provided under Section 78 of the Act. Section 79 speaks of the presumption as to the genuineness of certified copies. The presumption of documents produced as record of evidence is provided under Section 80 of the Act. Section 81 deals with presumption as to Gazettes, newspapers, private Acts of Parliament and other documents. Hence, the relevant sections of the Evidence Act for the purpose of disposal of the present case are as follows:

Section-62: Primary evidence:

Primary evidence means the documents itself produced for the inspection of the Court.

Explanation 1Where a document is executed in several parts, each part is primary evidence of the document :

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2- Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest ; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

Section-65: Cases in which secondary evidence relating to documents may be given Secondary evidence may be given of the existence, condition, or contents of a documents in the following cases:-

(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved , or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 40[India] to be given in evidence ;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved it the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

Section-74: Public documents The following documents are public documents :- (1) documents forming the acts, or records of the acts

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth ] or of a foreign country;

(2) Public records kept 49[in any State] of private documents.

Hence, a reading of the above provisions makes it clear that the copies obtained under the Right to Information Act certified by the Authorised Information Officer cannot be called as public documents or primary evidence. Explanation-2 of Section 62 makes the position clear. However, if a document is obtained under the Right to Information Act from a competent Authority, it can be asked to be taken as a certified copy if the original satisfies the definition of public document and no formal proof of the same is required. But, in the case of other private documents, the copies of which are obtained under the Right to Information Act, the provisions of Evidence Act with regard to secondary evidence have to be satisfied.

EVIDENCE

What is Evidence and what is not

16 Jun 2018 Advocatetanmoy

S 3 . 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) all documents including electronic records produced for the inspection of the Court,
such documents are called documentary evidence.

COMPETENT EVIDENCE-This term is used mostly as synonym of “admissible.” By competent evidence is meant that which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case.[The word “incompetent” is frequently used in stating objections to evidence and has meaning practically identical with “Inadmissible” and “irrelevant].(STEFEN`S DIGEST)

EVIDENCE VS PROOF-There is an obvious difference between the words “evidence” and “proof.” The former, in legal acceptation, includes the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. The latter is the effect or result of evidence.(STEFEN`S DIGEST)

Exceptions to the above rule [s 6 to 55 ]

Anecdote Material evidence [ Material exhibits] are not included because it need to be identified by a competent witness u/s 9. Sun gives light is a self evident fact but a dagger used in Murder is ned to be proved by credible Identification and corroboration direct witness along with opinion evidence u/ss 45 to 51.

Anecdote Circumstantial evidence is evidence per se within the exception Rules under Exceptions to the above rule [s 6 to 55 ]

CIVIL

The agreement to sell with possession is an instrument which requires payment of the stamp duty applicable to a deed of conveyance.

13 Jun 2018 Advocatetanmoy

Supreme Court in the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra, (2009) 2 SCC 532, in which it has been held as follows:

“21. It is not in dispute that the possession of the property had been delivered in favour of the appellant. He has, thus, been exercising some right in or over the land in question. We are not concerned with the enforcement of the said agreement. Although the same was not registered, but registration of the document has nothing to do with the validity thereof as provided for under the provisions of the Registration Act, 1908.

22. We have noticed heretobefore that Section 33 of the Act casts a statutory obligation on all the authorities to impound a document. The court being an authority to receive a document in evidence is bound to give effect thereto. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the Act.” To put the record straight, the correctness of the impugned judgment (Laxminarayan & Ors. v. Omprakash & Ors., 2008 (2) MPLJ 416) came up for consideration before a Division Bench of the High Court itself in Writ Petition No. 6464 of 2008 (Man Singh (deceased) through Legal Representatives Smt. Sumranbai & Ors. v. Rameshwar) and same has been overruled by judgment dated January 22, 2010. The High Court observed as follows:

“8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. In the matter of Laxminarayan (supra), the learned Single Judge with due respect to his authority we don’t think that he did look into the legal position but it appears that he was simply swayed away by the argument that as the defendant was denying the delivery of possession, the endorsement/recital in the document lost all its effect and efficacy.

9. It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don’t think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sections 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility. With all humility at our command we over-rule the judgment in the matter of Laxminarayan (supra).”

In Omprakash Vs. Laxminarayan & Ors. [OCTOBER 7, 2013] The plaintiffs filed a suit for specific performance of contract and their case is founded on the agreement to sell executed on 27th December, 2000. The agreement to sell acknowledges payment of the part of consideration money and further giving actual physical possession to the purchaser by the seller. Though the defendants dispute that, but in our opinion, for determination of the question of admissibility of a document, it is the recital therein which shall be decisive. Whether the possession in fact was given or not in terms of the agreement to sell is a question of fact which requires adjudication. But, at the time of considering the question of admissibility of document, it is the recital therein which shall govern the issue. It does not mean that the recital in the document shall be conclusive but for the purpose of admissibility it is the terms and conditions incorporated therein which shall hold the field. Having said that, we proceed to consider as to whether the document in question is “conveyance” within the meaning of Section 2(10) of the Act. Section 2(10) of the Act reads as follows:

2. Definitions. -In this Act, unless there is something repugnant in the subject or context, –

xxx xxx xxx

(10)”Conveyance” includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I;

xxx xxx xxx”

From a plain reading of the aforesaid provision, it is evident that an instrument by which movable or immovable property is transferred, comes within the expression “conveyance”. In the present case, an immovable property is transferred on payment of part of the consideration and handing over the possession of the property. It is relevant here to state that by the Indian Stamp (Madhya Pradesh Second Amendment) Act, 1990 (Act No.22 of 1990) few Articles including Article 23 of Schedule 1- A has been substituted and Explanation has been added to Article 23. The Explanation appended to Article 23 of Schedule 1-A of the Stamp Act as substituted by Section (6) of Act 22 of 1990 reads as follows:

“Explanation.-For the purpose of this article, where in the case of agreement to sell immovable property, the possession of any immovable property is transferred to the purchaser before execution or after execution of, such agreement without executing the conveyance in respect thereof then such agreement to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly:

Provided that, the provisions of Section 47-A shall apply mutatis mutandis to such agreement which is deemed to be a conveyance as aforesaid, as they apply to a conveyance under that section:

Provided further that where subsequently a conveyance is effected in pursuance of such agreement of sale the stamp duty, if any, already paid and recovered on the agreement of sale which is deemed to be a conveyance shall be adjusted towards the total duty leviable on the conveyance, subject to a minimum of Rs. 10.”

The aforesaid Explanation has come into effect with effect from 26th September, 1990. The Explanation, therefore, creates a legal fiction. The agreement to sell shall be deemed to be a conveyance and stamp duty is leviable on an instrument whereby possession has been transferred. Thus the agreement to sell in question is a conveyance within the meaning of Section 2(10) of the Act and is to be duly stamped. Section 35 of the Act makes instruments not duly stamped inadmissible in evidence, the relevant portion whereof reads as follows:

“35. Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:

Provided that-

(a)any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;

xxx xxx xxx.”

From a plain reading of the aforesaid provision, it is evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty. As we have observed earlier, the deed of agreement having been insufficiently stamped, the same was inadmissible in evidence. The court being an authority to receive a document in evidence to give effect thereto, the agreement to sell with possession is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. Duty as required, has not been paid and, hence, the trial court rightly held the same to be inadmissible in evidence. The view which we have taken finds support from a decision of this Court in the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra, (2009) 2 SCC 532

EVIDENCE, Law Question Papers

OBJECTIVE SAMPLE QUESTIONS ON THE INDIAN EVIDENCE ACT [1ST SET ]

2 Jun 2018 Advocatetanmoy

Indian Evidence Act was drafted by
(a) Lord Macaulay
(b) Sir James F. Stephen
(c) Huxley
(d) Sir Henry Summer Maine.
The law of evidence consists of
(a) ordinary rules of reasoning
(b) legal rules of evidence
(c) rules of logic
(d) all the above.
Relevancy and admissibility under the
Indian Evidence Act are
(a) synonymous
(b) co-extensive
(c) neither synonymous nor co-extensive
(d) synonymous & co-extensive both.
‘Self-regarding’ statements
(a) can be self-serving statements
(b) can be self-harming statements
(c) can be self-serving or self-harming
(d) none of the above.
What is correct as regards the admissibility of self-regarding statements
(a) self-harming statement is admissible but a self-serving statement is not generally admissible
(b) self-serving statement is admissible but a self-harming statement is not generally admissible
(c) self-serving and self-harming statements both are generally admissible
(d) self-serving and self-harming statements both are generally inadmissible.
Under the law of evidence, as a general rule
(a) opinion on a matter of fact is relevant but not on a matter of law
(b) opinion on a matter of law is relevant but not on a matter of fact
(c) opinion on a matter of fact and law both are relevant
(d) opinion whether on a matter of fact or law, is irrelevant.
Indian Evidence Act applies to
(a) proceedings before tribunals
(b) proceedings before the arbitrator
(c) judicial proceedings in courts
(d) all the above.
Law of evidence is
(a) lex tallienis
(b) lex fori
(c) lex loci solutionis
(d) lex situs.
Law of evidence is
(a) a substantive law
(b) an adjective law
(c) both (a) & (b)
(d) neither (a) nor (b).
Facts can be
(a) physical facts
(b) psychological facts
(c) physical as well as psychological facts
(d) only physical facts & not psychological facts.
Under the Evidence Act, fact means
(a) factum probandum
(b) factum probans
(c) both factum probandum and factum probans
(d) none of the above.
Fact in issue means
(a) fact, existence or non-existence of which is admitted by the parties
(b) fact, existence or non-existence of which is disputed by the parties
(c) fact existence or non-existence of which is not disputed by the parties
(d) all the above.
Evidence under the Indian Evidence Act means & includes
(a) ocular evidence
(b) documentary evidence
(c) ocular and documentary evidence both
(d) ocular evidence based on documents only.
Propositions under Evidence Act are
I. Affidavit is an evidence.
II. Everything produced before the court for inspection is evidence.
III. Anything of which judicial notice can be taken is evidence.
IV. Written statement of an accused is evidence. Which of the following is true in respect of the aforesaid propositions
(a) I, II, III & IV all are correct
(b) I, II & III are correct but IV is incorrect
(c) I, II & IV are correct but III is incorrect
(d) I, II & IV are incorrect but III is correct
(e) I & II are correct but III & IV are incorrect
(f) I is incorrect but II, III & IV are correct.
Proof of a fact depends on
(a) accuracy of the statement and not upon the probability of its existence
(b) not upon the accuracy of the statement but upon the probability of its existence
(c) artificial probative value assigned to a fact
(d) rigid mathematical demonstration.
Standard of proof in
(a) civil and criminal cases is the same
(b) criminal cases is much more higher than in civil cases
(c) criminal case is lower than in civil cases
(d) either (a) or (c) are correct
Presumptions under the law of evidence are
(a) presumption of facts
(b) presumptions of law
(c) both (a) & (b)
(d) only (b) & not (a).
Propositions under Evidence Act are
I. Presumptions of facts are always rebuttable
II. Presumption of facts can be either rebuttable or irrebuttable
III. Presumption of law are always irrebuttable
IV. Presumption of law can be either rebuttable or irrebuttable.
Which is true of the aforesaid propositions
(a) I & III are correct but II & IV are incorrect
(b) I & IV are correct but II & III are incorrect
(c) II & III are correct but I & IV are incorrect.
(d) II & IV are correct but I & III are incorrect.
Under the law of evidence, the relevant fact
(a) must be legally relevant
(b) must be logically relevant
(c) must be legally & logically relevant
(d) must be legally & logically relevant and admissible.
Relevancy is
(a) question of law and can be raised at any time
(b) question of law but can be raised at the first opportunity
(c) question of law which can be waived
(d) question of procedure which can be waived.
Question of mode of proof is
(a) a question of law which can be raised at any time
(b) a question of procedure but has to be raised at the first opportunity and stands waived if not raised at the first opportunity
(c) a question of procedure & can be raised at any time
(d) a mixed question of law & fact.
Which of the following documents are not admissible in evidence
(a) documents improperly procured
(b) documents procured by illegal means
(c) both (a) & (b)
(d) neither (a) nor (b).
The facts which form part of the same transaction are relevant
(a) under section 5 of Evidence Act
(b) under section 6 of Evidence Act
(c) under section 7 of Evidence Act
(d) under section 8 of Evidence Act.
A fact forming part of the same transaction is relevant under section 6 of Evidence Act
(a) if it is in issue and have occurred at the same time & place
(b) if it is in issue and may have occurred at different times & places
(c) though not in issue and may have occurred at the same time & place or at different times & places
(d) though not in issue, must have occurred at the same time & place.
Several classes of facts, which are connected with the transaction(s) in a particular mode, are relevant
(a) under section 6 of Evidence Act
(b) under section 7 of Evidence Act
(c) under section 8 of Evidence Act
(d) under section 9 of Evidence Act.
Motives of preparation and conduct are I relevant
(a) under section 6 of Evidence Act
(b) under section 7 of Evidence Act
(c) under section 8 of Evidence Act
(d) under section 9 of Evidence Act.
Under section 8 of Evidence Act
(a) motive is relevant
(b) preparation is relevant
(c) conduct is relevant
(d) all the above.
For conduct to be relevant under section 8 of Evidence Act, it
(a) must be previous
(b) must be subsequent
(c) may be either previous or subsequent
(d) only subsequent & not previous.
Facts which are necessary to explain or introduce relevant facts of place, name, date, relationship & identity of parties are relevant
(a) under section 8 of Evidence Act
(b) under section 9 of Evidence Act
(c) under section 10 of Evidence Act
(d) under section 11 of Evidence Act.
Under section 9 of Evidence Act
(a) the identification parades of suspects are relevant
(b) the identification parades of chattels are relevant
(c) both (a) & (b) are relevant
(d) only (a) & not (b) is relevant.
Identification of a suspect by photo is
(a) admissible in evidence
(b) not admissible in evidence
(c) section 9 of Evidence Act excludes identification by photo
(d) section 8 of Evidence Act excludes identification by photo.
Things said or done by a conspirator in reference to the common design is relevant
(a) under section 12 of Evidence Act
(b) under section 6 of Evidence Act
(c) under section 10 of Evidence Act
(d) under section 8 of Evidence Act.
A confession made by a conspirator involving other members is relevant against the co-conspirator jointly tried with him and is admissible
(a) under section 8 of Evidence Act
(b) under section 10 of Evidence Act
(c) under section 30 of Evidence Act
(d) both (b) & (c).
Alibi is governed by
(a) section 6 of Evidence Act
(b) section 8 of Evidence Act
(c) section 15 of Evidence Act
(d) section 11 of Evidence Act.
Transaction and instances relating to a right or custom are relevant
(a) under section 6 of Evidence Act
(b) under section 8 of Evidence Act
(c) under section 10 of Evidence Act
(d) under section 13 of Evidence Act.
Section 13 of Evidence Act applies to
(a) corporal rights
(b) incorporal rights
(c) both corporal and incorporal rights
(d) neither (a) nor (b).
Section 13 of Evidence Act
(a) is confined to public rights & does not cover private rights
(b) is not confined to public rights and covers private rights also
(c) is confined to private rights and does not cover public rights
(d) either (a) or (c) is correct.
Mode of proof of a custom is contained in
(a) section 32(4) of Evidence Act
(b) section 32(7) of Evidence Act
(c) section 48 of Evidence Act
(d) all the above.
Section 14 of Evidence Act makes relevant the facts which show the existence of
(a) any state of mind
(b) any state of body or bodily feeling
(c) either state of mind or of body or bodily feeling
(d) a particular state of mind and a state of body.
Under section 14 of Evidence Act – Explanation I
(a) evidence of general disposition, habit or tendencies is inadmissible
(b) evidence having a distinct and immediate reference to the particular matter in question is admissible
(c) both (a) & (b) are correct
(d) both (a) & (b) are incorrect.
Previous conviction of a person is relevant under
(a) explanation I to section 14 of Evidence Act
(b) explanation II to section 14 of Evidence Act
(c) explanation III to section 14 of Evidence Act
(d) explanation IV to section 14 of Evidence Act.
Multiple Choice Questions for Judicial Service Examination
Under section 15 of Evidence Act, facts showing series of similar occurrences, involving the same person are relevant
(a) when it is uncertain whether the act is intentional or accidental
(b) when it is certain that the act is with guilty knowledge
(c) when it is certain that the act is done innocently
(d) either (b) or (c).
Admission has been defined as a statement made by a party or any person connected with him, suggesting any inference as to a fact in issue or relevant fact under certain circumstances, under
(a) section 16 of Evidence Act
(b) section 17 of Evidence Act
(c) section 18 of Evidence Act
(d) section 19 of Evidence Act.
Admissions
(a) must be examined as a whole and not in parts
(b) can be examined in parts
(c) can be examined as a whole or in parts
(d) both (b) & (c) are correct.
Admissions bind the maker
(a) in so far as it relates to facts
(b) in so far as it relates to question of law
(c) both on questions of facts & of law
(d) neither (a) nor (b).
Admissions
(a) must be in writing
(b) must be oral
(c) either oral or in writing
(d) only in writing & not oral.
Admission to be relevant
(a) must be made to the party concerned & not to a stranger
(b) must be made to a stranger
(c) it is immaterial as to whom admission is made and an admission made to a stranger is relevant
(d) it is immaterial to whom the admission is made but must be made to someone intimately connected & not a stranger.
Propositions under Evidence Act are
I. Statement is a genus, admission is a species
& confession is a sub species.
II. Statement & admission are species & confession is a sub species.
III. Statement & admission are genus & confession is a species.
In this context which of the following is correct
(a) I is correct, II & III are incorrect
(b) I & II are correct & III is incorrect
(c) II & III are correct & I is incorrect
(d) III is correct & I & II are incorrect.
Admission can be
(a) formal only
(b) informal only
(c) either formal or informal
(d) only formal & not informal.
Admissions
(a) are conclusive proof of the matters admitted
(b) are not conclusive proof of the matters admitted but operate as estoppel
(c) are conclusive proof of the matter and also operate as estoppel
(d) both (a) & (c) are correct.
Persons who can make admissions are mentioned in
(a) section 17 of Evidence Act
(b) section 20 of Evidence Act
(c) section 19 of Evidence Act
(d) section 18 of Evidence Act.
Admissions by agents are
(a) admissible in civil proceedings under all circumstances
(b) admissible in civil proceedings only if the agent has the authority to make admissions
(c) never admissible in criminal proceedings
(d) both (b) & (c).
Admissions made by a party are evidence against
(a) privies in blood
(b) privies in law
(c) privies in estate
(d) all the above.
Which of the following admission is no evidence
(a) an admission by one of the several defendants in a suit against another defendant
(b) an admission by a guardian ad litem against a minor
(c) an admission by one of the partners of a firm against the firm or other partners
(d) only (a) & (b).
When the liability of a person who is one of the parties to the suit depends upon the liability of a stranger to the suit, then an admission by the stranger in respect of his liability shall be an admission on the part of that person who is a party to the suit. It has been so provided
(a) under section 21 of Evidence Act
(b) under section 20 of Evidence Act
(c) under section 19 of Evidence Act
(d) under section 17 of Evidence Act.
In a reference made over a disputed matter to a third person, the declaration so made by that person shall be an evidence against the party making a reference, by virtue of
(a) section 17 of Evidence Act
(b) section 19 of Evidence Act
(c) section 20 of Evidence Act
(d) section 21 of Evidence Act.
Communication made ‘without prejudice’ are protected
(a) under section 22 of Evidence Act
(b) under section 23 of Evidence Act
(c) under section 24 of Evidence Act
(d) under section 21 of Evidence Act.
Confession caused by inducement, threat or promise is contained in
(a) section 24 of Evidence Act
(b) section 25 of Evidence Act
(c) section 26 of Evidence Act
(d) section 27 of Evidence Act.
Section 24 of Evidence Act applies
(a) when the inducement, threat or promise comes from a person in authority
(b) when the inducement is of a temporal kind
(c) when the inducement is spiritual or religious
(d) only (a) & (b) are correct.
A confession made to a police officer is inadmissible under
(a) , section 24 of Evidence Act
(b) section 25 of Evidence Act
(c) section 26 of Evidence Act
(d) section 27 of Evidence Act.
A confession to be inadmissible under section 25 of Evidence Act
(a) must relate to the same crime for which he is charged
(b) must relate to another crime
(c) may relate to the same crime or another crime
(d) only (a) is correct and (b) is incorrect.
Which of the following is not given by section 25 of Evidence Act
(a) confessions made to custom officers
(b) confession made to a member of Railway Protection Force
(c) confession made to an officer under FERA
(d) all the above.
A retracted confession
(a) can be made solely the basis of conviction
(b) cannot be made solely the basis of conviction under any circumstances
(c) can not be made solely the basis of conviction unless the same is corroborated
(d) both (a) & (c) are incorrect.
A confession made by a person while in police custody is inadmissible as per
(a) section 25 of Evidence Act
(b) section 26 of Evidence Act
(c) section 27 of Evidence Act
(d) section 30 of Evidence Act.
A confession made while in police custody is admissible under section 26 of Evidence Act
(a) if made in the presence of a doctor
(b) if made in the presence of a captain of a vessel
(c) if made in the presence of a Magistrate
(d) all the above.
Section 27 control
(a) section 24 of Evidence Act
(b) section 25 of Evidence Act
(c) section 26 of Evidence Act
(d) all the above.
Section 27 applies to
(a) discovery of some fact which the police had not previously learnt from other sources and was first derived from the information given by the accused
(b) discovery of some fact which the police had previously learnt from other sources
(c) discovery of some fact which the police had previously learnt from other sources and the accused has also given information regarding the same
(d) all the above.
Under section 27 of Evidence Act, ‘discovery of fact’ includes
(a) the object found
(b) the place from where it is produced
(c) both (a) & (b)
(d) neither (a) nor (b).
Section 27 of Evidence Act applies
(a) when the person giving information is an accused but not in police custody
(b) when the person giving information is an accused and is in police custody
(c) when the person is in police custody but not an accused
(d) when the person is neither in police custody nor an accused.
Under section 27 of Evidence Act
(a) the whole statement is admissible
(b) only that portion which distinctly relates to the discovery is admissible
(c) both are admissible depending on the facts & circumstances of the case
(d) only (a) & not (b).
Facts discovered in consequences of a joint information
(a) are not admissible and can not be used against any of the accused person
(b) are admissible and can be used against any one of the accused person
(c) are admissible and can be used against all the accused persons
(d) both (a) & (c) are correct.
Confession of an accused is admissible against the other co-accused
(a) under section 28 of Evidence Act
(b) under section 29 of Evidence Act
(c) under section 30 of Evidence Act
(d) under section 31 of Evidence Act.
Confession of one accused is admissible against co-accused
(a) if they are tried jointly for the same offences
(b) if they are tried jointly for different offences
(c) if they are tried for the same offences but not jointly
(d) if they are tried for different offences and not jointly.
Confession of a co-accused, not required to be on oath and cannot be tested by cross- examination
I. is no evidence within the meaning of section 3 of Evidence Act and cannot be the foundation of a conviction
II. the only limited use which can be made of a confession of a co-accused is by way of furnishing an additional reason for believing such other evidences as exists
III. it is a very weak type of evidence and is much weaker even than the evidence of an approver.
In the aforesaid propositions
(a) all I, II & III are correct
(b) only I & III are correct
(c) only I & II are correct
(d) only II & III are correct.
‘Necessity rule’ as to the admissibility of evidence is contained in
(a) section 31 of Evidence Act
(b) section 32 of Evidence Act
(c) section 60 of Evidence Act
(d) section 61 of Evidence Act.
Necessity rule as to the admissibility of evidence is applicable, when the maker of a statement
(a) is dead or has become incapable of giving evidence
(b) is a person who can be found but his attendance can not be procured without unreasonable delay or expenses
(c) is a person who can not be found
(d) all the above.
Under section 32 of Evidence Act, a statement of a person who is dead, to be admissible
(a) must relate to the cause of his own death
(b) may relate to the cause of someone else’ death
(c) may relate to the cause of his own death or someone else’ death
(d) both (b) & (c) are correct.
The person whose statement is admitted under section 32 of Evidence Act
(a) must be competent to testify
(b) need not be competent to testify
(c) may or may not be competent to testify
(d) only (a) is correct and (b) & (c) are incorrect.
A dying declaration is admissible
(a) only in criminal proceedings
(b) only in civil proceedings
(c) in civil as well as criminal proceedings both
(d) in criminal proceedings alone & not in civil proceedings.
A dying declaration
(a) can form the sole basis of conviction without any corroboration by independent evidence
(b) can form the basis of conviction only on corroboration by independent witness
(c) cannot form the sole basis of conviction unless corroborated by independent witness
(d) only (b) & (c) are correct.
A dying declaration to be admissible
(a) must be made before a Magistrate
(b) must be made before the police officer
(c) may be made before a doctor or a private person
(d) may be made either before a magistrate or a police officer or a doctor or a private person.
Declaration in course of business are admissible
(a) under section 32(1) of Evidence Act
(b) under section 32(2) of Evidence Act
(c) under section 32(4) of Evidence Act
(d) under section 32(7) of Evidence Act.
Declaration as to custom are admissible
(a) under section 32(1) of Evidence Act
(b) under section 32(2) of Evidence Act
(c) under section 32(4) of Evidence Act
(d) under section 32(7) of Evidence Act.
Under section 32(4) of Evidence Act, the declaration
(a) as to public rights & customs are admissible
(b) as to private rights & customs are admissible
(c) as to both public and private rights and customs are admissible
(d) only as to customs are admissible.
Opinions of experts are relevant
(a) under section 45 of Evidence Act
(b) under section 46 of Evidence Act
(c) under section 47 of Evidence Act
(d) under section 48 of Evidence Act.
Under section 45 of Evidence Act, the opinion of expert can be for
(a) identity of hand writing
(b) identity of finger impression
(c) both (a) & (b)
(d) neither (a) nor (b).
Under section 45 of Evidence Act the opinion of expert can be on the question of
(a) Indian law
(b) Foreign law
(c) both (a) & (b)
(d) only (a) & not (b).
Opinion of an expert under section 45 of Evidence Act
(a) is a conclusive proof
(b) is not a conclusive proof
(c) is supportive & corroborative in nature
(d) either (a) or (c).
A disputed handwriting can be proved
(a) by calling an expert
(b) by examining a person acquainted with the handwriting of the writer of the questioned document
(c) by comparison of the two-admitted & disputed handwritings
(d) all the above.
The res inter alia acta is receivable
(a) under section 45 of Evidence Act
(b) under section 46 of Evidence Act
(c) under section 47 of Evidence Act
(d) under section 48 of Evidence Act.
Entries in the books of accounts regularly kept in the course of business are admissible under section 34 of Evidence Act
(a) if they by themselves create a liability
(b) if they by themselves do not create a liability
(c) irrespective of whether they themselves create a liability or not
(d) either (a) or (b).
When the court has to ascertain the relationship between one person and another, the opinion of any person having special means of knowledge and expressed by conduct is admissible
(a) under section 51 of Evidence Act
(b) under section 50 of Evidence Act
(c) under section 52 of Evidence Act
(d) under section 49 of Evidence Act.
The relationship in section 50 of Evidence Act means
(a) relationship by blood only
(b) relationship by blood or marriage
(c) relationship by blood or marriage or adoption
(d) only (a) and not (b) & (c).
Opinion as to relationship of marriage under section 50 of CPC
(a) is admissible in cases of offences against marriage
(b) is admissible in proceedings under Indian Divorce Act
(c) is admissible both in (a) & (b)
(d) is neither admissible in cases of offences against marriage nor in proceedings under Indian Divorce Act
Propositions under Evidence Act are
I. In civil cases, character evidence is inadmissible unless the character of a party is a fact in issue.
II. In criminal cases, the evidence of good character is admissible generally.
III. In criminal proceedings, evidence of bad character is inadmissible unless the same is a fact in issue.
IV. In criminal proceedings evidence of bad character is admissible when evidence of good character has been given. In relation to the above propositions which of the following is correct statement
(a) all the four (I, II, III & IV) are correct
(b) I, II & III are correct but IV is incorrect
(c) I & II are correct but III & IV are incorrect
(d) I & III are correct but II & IV are incorrect
(e) I, II & IV are correct but III is incorrect
(f) II, III & IV are correct but I is incorrect.
Facts of which the judicial notice is to be taken are stated in
section 56 of Evidence Act
section 57 of Evidence Act
section 58 of Evidence Act
section 55 of Evidence Act.
List of facts of which the judicial notice has to be taken under section 57 of Evidence Act
(a) is exhaustive
(b) is illustrative only
(c) is both (a) & (b)
(d) is neither (a) nor (b).
Facts which need not be proved by the parties include
(a) facts of which judicial notice has to be taken
(b) facts which have been admitted by the parties at or before the hearing
(c) both (a) & (b)
(d) neither (a) nor (b).
The court may in its discretion call for proving the facts
(a) of which judicial notice has to be taken
(b) which have been admitted otherwise than such admissions
(c) both (a) & (b)
(d) neither (a) nor (b).
Oral evidence under section 60 of Evidence Act may be
(a) direct only
(b) hearsay
(c) both (a) & (b)
(d) either (a) or (b).

CIVIL

The tape-records of speeches were “documents”, as defined by Section 3 of the Evidence Act

29 Mar 2018 Advocatetanmoy

KEYWORD:- Tape recorded speech – Evidence-

Indian Law Encyclopedia

The evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.

In the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Ors., (1976) 2 SCC 17, this Court made following observations:

We think that the High Court was quite right in holding that the tape-records of speeches were “documents”, as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:

(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.

(emphasis supplied)

In the case of Ram Singh and Ors. v. C ol. Ram Singh, (1985) Suppl. SCC 611, again this Court stated some of the conditions necessary for admissibility of tape recorded statements, as follows:

(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.

(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence — direct or circumstantial.

(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of Evidence Act.

(5) The recorded cassette must be carefully sealed and kept in safe or official custody.

(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

In Ram Singh’s case (supra), this Court also notices with approval the observations made by the Court of, (1985) Suppl. SCC 611 Appeal in England in the case of R. v. Maqsud Ali (1965) 2 AER 464. In the aforesaid case, Marshall, J. observed thus:

We can see no difference in principle between a tape-recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape- recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.

To the same effect is the judgment in the case of R. v. Robson (1972) 2 AER 699, which has also been approved by this Court in Ram Singh’s case (supra). In this judgment, Shaw, J. delivering the judgment of the Central Criminal Court observed as follows:

The determination of the question is rendered more difficult because tape-recordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts.

Chapter 14 of Archbold Criminal Pleading, Evidence and Practice discuss the law in England with regard to Evidence of Identification. Section 1 of this Chapter deals with Visual Identification and Section II relates to Voice Identification. Here again, it is emphasised that voice identification is more difficult than visual identification. Therefore, the precautions to be observed should be even more stringent than the precautions which ought to be taken in relation to visual identification. Speaking of lay listeners (including police officers), it enumerates the factors which would be relevant to judge the ability of such lay listener to correctly identify the voices. These factors include:

(a) the quality of the recording of the disputed voice,

(b) the gap in time between the listener hearing the known voice and his attempt to recognize the disputed voice,

(c) the ability of the individual to identify voices in general (research showing that this varies from person to person), 8 2010 edition at pg: 1590-91

(d) the nature and duration of the speech which is sought to be identified and

(e) the familiarity of the listener with the known voice; and even a confident recognition of a familiar voice by a way listener may nevertheless be wrong.

The Court of Appeal in England in R. v. Chenia (2003) 2 Cr.App.R. 6 CA and R. v. Flynn and St. John (2008) 2 Cr.App.R. 20 CA, has reiterated the minimum safeguards which are required to be observed before a Court can place any reliance on the voice identification evidence, as follows:

(a) the voice recognition exercise should be carried out by someone other than the officer investigating the offence;

(b) proper records should be kept of the amount of time spent in contact with the suspect by any officer giving voice recognition evidence, of the date and time spent by any such officer in compiling any transcript of a covert recording, and of any annotations on a transcript made by a listening officer as to his views as to the identify of a speaker; and

(c) any officer attempting a voice recognition exercise should not be provided with a transcript bearing the annotations of any other officer.

In America, similar safeguards have been evolved through a series of judgments of different Courts. The 9 (2003) 2 Cr.App.R. 6 CA 10 (2008) 2 Cr.APP.R.20,CA principles evolved have been summed up in American Jurisprudence 2d (Vol. 29) in regard to the admissibility of tape recorded statements, which are stated as under:

The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording, and indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows:

(1) a showing that the recording device was capable of taking testimony;

(2) a showing that the operator of the device was competent;

(3) establishment of the authenticity and correctness of the recording;

(4) a showing that changes, additions, or deletions have not been made;

(5) a showing of the manner of the preservation of the recording;

(6) identification of the speakers; and

(7) a showing that the testimony elicited was voluntarily made without any kind of inducement.

… However, the recording may be rejected if it is so inaudible and indistinct that the jury must speculate as to what was said.

This apart, in the case of Mahabir Prasad Verma v. Dr. Surinder Kaur, (1982) 2 SCC 258, this Court has laid down that tape recorded evidence can only be used as corroboration evidence in paragraph 22, it is observed as follows:

Tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape-recorded conversation is indeed no proper evidence and cannot be relied upon. In the instant case, there was no evidence of any such conversation between the tenant and the husband of the landlady; and in the absence of any such conversation, the tape-recorded conversation could be no proper evidence.

CIVIL

Corroboration is not the sine qua non for conviction in a rape case

29 Mar 2018 Advocatetanmoy

Indian Law Encyclopedia

Corroboration is not the sine qua non for conviction in a rape case. The observations of Vivian Bose, J. in Rameshwar v. State of Rajasthan were:

The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge…

To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars as in “the case of an accomplice to a crime”. (See State of Maharashtra v. Chandraprakash Kewalchand Jain.) Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance.

It is unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. Decency and morality in public and social life can be protected only if courts deal strictly with those who violate the social norms.

The above position was highlighted by this Court in Bhupinder Sharma v. State of H.P.

The rule regarding non-requirement of corroboration is equally applicable to a case of relating to Section 377 IPC.

The evidence of the prosecutrix may sustain a conviction. It is only by way of abundant caution that court may look for some corroboration so as to satisfy its conscience and rule out any false accusations. In State of Maharasthra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550, this Court at page 559 of the Report said:

A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

20. In State of Punjab v. Gurmit Singh and Ors., (1996) 2 SCC 384, this Court made the following weighty observations at pages 394-396 and page 403:

The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix…. The courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case…. Seeking corroboration of her statement before replying upon the same as a rule, in such cases, amounts to adding insult to injury…. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.

The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

21. In Vijay @ Chinee v. State of Madhya Pradesh, (2010) 8 SCC 191, decided recently, this Court referred to the above two decisions of this Court in Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 and Gurmit Singh, (1996) 2 SCC 384 and also few other decisions and observed as follows:

Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.

22. The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society’s belief and value systems need to be kept uppermost in mind as rape is the worst form of woman’s oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the leveling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge. This Court has repeatedly laid down the guidelines as to how the evidence of the prosecutrix in the crime of rape should be evaluated by the court. The observations made in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 deserve special mention as, in our view, these must be kept in mind invariably while dealing with a rape case. This Court observed as follows:

9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross- examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical….

This Court went on to observe at page 225:

…Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition- bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband’s family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent.

CIVIL

Abdulrasakh Vs. K.P. Mohammed & Ors[ALL SC 2018 MARCH]

26 Mar 2018 Advocatetanmoy

KEYWORDS:-Election petition-Exhibits-

DATE:-

copies of the documents have been supplied to the appellant and multiple copies of the phone or the chip (which is kept in a sealed cover) are not mandated to be supplied when the material relied upon in the phone has been reproduced in CD and a transcription also provided. The defence of the appellant cannot be said to be impaired in any manner.
whether CD have to be marked as material objects or exhibits could be considered at the time of trial and since the mobile phone cannot be produced along with each copy, copies of contents in the phone which the petitioner wants to rely upon have been produced along with the copy of the election petition.
law relating to election is a technical one as it amounts to a challenge laid to the democratic process determining the will of the people. An eligible person whether a candidate or a voter coming to Court, seeking to set aside any election has to, thus, meet with the technical natures of the election petition and the provisions prescribed under the said Act as otherwise it would be fatal to the election petition at the threshold itself.

ACTS:-Section 123(4) of the Representation of People Act, 1950

SUPREME COURT OF INDIA

Abdulrasakh Vs. K.P. Mohammed & Ors.

[Civil Appeal No.10863 of 2017]

SANJAY KISHAN KAUL, J.

The facts:

1. The democratic process of holding State elections was carried out for the 14th Kerala Legislative Assembly on 16.5.2016 in which the appellant contested from the Koduvally Assembly Constituency as an independent candidate. The results were declared on 19.5.2016 and the appellant, having obtained the highest number of votes was declared as elected.

2. Respondent Nos.1 & 2 who were stated to be the voters from the same constituency filed election petitions on grounds of corrupt practices. The challenge to the election of the appellant was laid under Section 123(4) of the Representation of People Act, 1950 (hereinafter referred to as the ‘said Act’) alleging that the appellant made false allegations against respondent No.3, a candidate, knowing the same to be false. Section 123(4) of the said Act reads as under:

“123. Corrupt practices. – The following shall be deemed to be corrupt practices for the purposes of this Act: –

xxxx xxxx xxxx xxxx xxxx

(4) The publication by a candidate or his agent or by any other person [with the consent of a candidate or his election agent], of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate’s election.”

3. The election petition is stated to have been filed on 1.7.2016 in which certain defects are stated to have been pointed out. It is the case of the appellant that the petition was returned from the Registry and was re-presented only on 11.7.2016 by which time the prescribed period of limitation of 45 days to file such an election petition had expired on 3.7.2016 and, thus, the election petition was time barred.

It is also the say of the appellant that the Registry had no power to return the election petition or permitting curing of any defects. Even on representation, the petition is stated to have been defective and was placed before the learned single Judge of the Kerala High Court, who by the order dated 18.7.2017 granted one week’s time to respondent Nos.1 & 2 to cure the defects. It is thereafter that notice was issued to all the respondents in the election petition including the appellant herein.

4. On account of the aforesaid two grounds and more the appellant moved an application for summary dismissal of the election petition under Section 86 of the said Act read with Section 151 and Order VI Rule 16, Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘said Code’). The relevant provision, being Section 86 (1) of the said Act, reads as under:

“86. Trial of election petitions. –

(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.”

5. The objections filed by the appellant were, however, dismissed vide impugned judgment dated 16.6.2017, by the learned single Judge of the Kerala High Court against which the present Special Leave Petition has been filed. Appellant’s contentions:

6. Mr. Rajeev Dhawan, learned Senior Advocate appearing for the appellant referred to the office notice sheets of the High Court to canvas his case of the petition being beyond time. He referred to the fact that while the election petition was stated to have been presented on 1.7.2016, it was also mentioned therein “E.P. filed: 11.07.16”.

The date of issue of summons is 9.8.2016. He also referred to the noting where eight defects were enumerated and below that, there was an endorsement of the counsel appearing for the original petitioner to the effect that “defect cured” without any date and an endorsement of the Deputy Registrar dated 7.7.2016. The conclusion, he sought to derive from these endorsements was the presentation and re-presentation of the petition before the Registry, without it being placed before the Court.

7. Learned Senior Advocate referred to the provisions relating to presentation of an election petition to a High Court contained in Chapter II of the said Act and the mandate for an election petition to meet with the same in the context of the objections filed by the appellant. The relevant provisions read as under:

“81. Presentation of petitions.-

(1) An election petition calling in question any election may be presented on one or more of the grounds specified in[sub-section (1)] of section 100 and section 101 to the [High Court] by any candidate at such election or any elector [within forty-five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates].”

xxxx xxxx xxxx xxxx xxxx “

[(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.]”

8. The defects pointed out by the Registry are as under:

“i. Sec 80A of the R.P. Act is not provision shown in the Election Petition.

ii. Pages 28 and 29 are not properly tagged in 1st set. iii. Mobile phones produced as Annexure B, C, G and L and Compact Disks produced as Annexure H, M and O are in sealed covers, cannot be scrutinized.

iv. Mobile phones and CD’s which are material objects are marked as Annexures. v. Annexure B, C, G and L (Mobile Phones), stated as “cannot be produced” in the verification made in copies.

vi. Page 57 which is English translation of Annexure K, produced as Annexure K-1 is stated as English translation of Annexure H.

vii. No English translation of last four lines appearing at P 35 (Annexure E/5) is seen reproduced at P.39, the English translation of Annexure E.

viii. In one of the additional copies of Election Petition Annexure Q is produced twice.”

9. Learned counsel took us through the written objections filed by the appellant to which no reply is stated to have been filed by respondent Nos.1 & 2. In substance what was sought to be canvassed before us by reference to the objections is as under:

i. The election petition is barred by time as it had to be presented free from all defects before 3.7.2016. The defects were cured and the petition was re-presented on 11.7.2016.

ii. That the process of returning and re-presentation of the election petition in the Registry is alien to the process of an election court.

iii. Production of documents in the sealed cover is impermissible in law and is not acceptable. The failure to hand over the entire contents of the items produced in sealed cover Civil Appeal No.10863/2017 Page 6 of 17 is violative of Section 81(3) of the said Act and is violative of the principles of natural justice. The appellant was entitled to the chip of the mobile phone apart from the CD of the relevant portion, the latter having been handed over. Such deprival would cause prejudice to the appellant as is deprived of the opportunity to know the entire contents.

iv. The defects have been cured by substituting the original page 57 filed with the election petition and it is ante dated as the papers have been signed subsequent to 1.7.2016.

v. Annexure E-1 was incomplete and not the true English translation of Annexure E.

10. To buttress the submissions made, learned counsel referred to the judicial pronouncements dealing with the aspects he was seeking to canvas. The same are dealt with as under:

i. Satya Narain v. Dhuja Ram & Ors.1 – it was observed that in the absence of any provisions under the said Act and the Rules made thereunder, the High Court Rules cannot confer upon the Registrar or the Deputy Registrar any power to permit correction or removal of defects in an election petition presented in the High Court beyond the period of limitation provided under the said Act.

ii. Sahodrabai Rai v. Ram Singh Aharwar2 – In the given facts of the case the learned Judge trying the case ordered the attendance of the Reader of the Deputy Registrar of the High Court, who had dealt with the election petition and he was examined as a court witness. A similar course, the counsel contended, was liable to be followed in the present case when there were doubts and allegations about the presentation and re-presentation as was apparent from the office notes.

iii. M. Karunanidhi v. Dr. H.V. Hande & Ors.3 (para 29) – The particular controversy related to the costing of the banners and it was stated that the same was mentioned wrongly as there were two election banners – one of them was a huge fancy banner or hoarding on the left side of the road and the other on the right was a smaller election banner. The appellant was present in the depiction of the two groups in both the banners. A photograph of the fancy banner was filed but the copy of the same was not supplied. This was held to be fatal to the petition. To appreciate the contention of respondent Nos.1 & 2 herein, it was stated that they were required to supply to the appellant the proper photograph while only a black and white photocopy had been supplied.

iv. U.S. Sasidharan v. K. Karunakaran & Anr.4 (paras 14 & 32) – The controversy relating to non-supply of the video cassette with the election petition was examined and the video cassette being an integral part of election petition, nonfurnishing of the copy was held to be fatal.

v. Mithilesh Kumar Pandey v. Baidyanath Yadav & Ors.5 (paras 11 & 15) – The Bench of three Judges of this Court examined the controversy emanating from the allegation that 4 (1989) the copy supplied to the returned candidate was not really a true copy. In the said context the principles were laid down in para 15 as under:

“15. On a careful consideration and scrutiny of the law on the subject, the following principles are well established:

(1) that where the copy of the election petition served on the returned candidate contains only clerical or typographical mistakes which are of no consequence, the petition cannot be dismissed straightway under Section 86 of the Act,

(2) A true copy means a copy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the court may not take notice thereof,

(3) where the copy contains important omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate, it cannot be said that there has been a substantial compliance of the provisions of Section 81(3) of the Act,

(4) Prima facie, the statute uses the words “true copy” and the concept of substantial compliance cannot be extended too far to include serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy within the meaning of Section 81(3) of the Act, and

(5) As Section 81(3) is meant to protect and safeguard the sacrosanct electoral process so as to not disturb the verdict of the voters, there is no room for giving a liberal or broad interpretation to the provisions of the said section.”

In the aforesaid context, it was stated that the translations supplied by respondent Nos.1 & 2 did not make sense and the access to the original chip is necessary as the allegation against the appellant is of connivance in making of false allegations against one of the candidates. Respondent Nos.1 & 2’s contentions:

11. On the other hand, Mr. Kapil Sibal, learned Senior Advocate appearing for the first two respondents (Original petitioners in the High Court) at the threshold itself stated that he has no quibble with all the legal propositions advanced by the learned senior counsel for the appellant or with the judicial pronouncements referred to aforesaid, however, what was sought to be canvassed was an incorrect representation of what has actually transpired. In this behalf learned senior counsel, once again, drew our attention to the notings to contend that the mention of “E.P. filed: 11.07.16” is obviously a mistake as undisputedly the election petition was presented on 1.7.2016.

The endorsement of the Deputy Registrar shows that the scrutiny took place on 5.7.2016. The eight defects noticed aforesaid were mentioned on 7.7.2016 whereupon the petition was placed before the learned Judge on 18.7.2016 as an unnumbered election petition. The learned Judge opined that the defects noted by the office are not material defects for rejecting the petition in limine under the said Act (the parameters have been set out in Mithilesh Kumar Pandey6).

It is also noted that the question whether CD have to be marked as material objects or exhibits could be considered at the time of trial and since the mobile phone cannot be produced along with each copy, copies of contents in the phone which the petitioner wants to rely upon have been produced along with the copy of the election petition. Sufficiency of this could be considered later after appearance of the parties. One week’s time was granted to cure the minor defects as prayed. Thereafter the defects were cured within the time specified and the endorsement made by the counsel for respondent Nos.1 & 2.

12. We have also examined the impugned judgment passed on 16.6.2017, which is a detailed one with supporting case law. Sixteen issues were framed out of which the appellant claimed preliminary hearing in respect of issue Nos.1 to 7. The preliminary issues are reproduced as under:

“1. Whether the election petition is barred by limitation?supra

2. Can the defects in the election petition be permitted to be cured after the period of limitation prescribed under Section 81 of the Representation of People Act?

3. Can the election petition be returned to the petitioner for curing defects after the period of limitation prescribed under Section 81 of the Representation of People Act?

4. Is there power in this Court to permit representation delay to be condoned when the original delay in presenting election petition itself is not permissible to be condoned and when there is no provision for any delay condonation?

5. Whether the defects cured and corrections made in the election petition after the period of limitation will relate back to the date of its presentation?

6. Whether defects cured and corrections made in the election petition after presentation are permissible and in compliance with the mandatory requirements as provided in Sections 81 & 83 of the Representation of People Act and Rules framed thereunder?

7. Whether the election petition is maintainable for noncompliance of mandatory requirements as provided in Sections 81, 82, 83 & 117 of the Representation of People Act and Rules framed thereunder and other requirements of law?”

13. The learned single Judge then on examination of the record opined that the Registry, after presentation of the petition on 1.7.2016 had not returned the petition to the first two respondents but was posted before the Bench as per the correct practice, which passed the order dealing with the objections. On curing of the minor defects, notice was issued to the appellant.

14. The Kerala High Court Rules (Rule 210) itself provided for scrutiny by the Judge assigned to the case and not by the Registry. There was no violation of this Rule. The defects were also cured only after 18.7.2016. The contents of the conversation recorded in the mobile phone have been produced as annexures and CDs and the mobile phones were themselves produced. The question of admissibility of evidence would, thus, have to be examined at the stage of trial. Similarly the photocopy of a photograph could only be a copy taken from mobile phone and at this stage it could not be said that it did not truly represent the contents of what was recorded in the mobile phone, which was again a matter of evidence.

Conclusion:

15. We have examined the submissions of the learned counsel for the parties and do not find any merit in the appeal. The minor corrections permitted to be made vide order dated 18.7.2016 are by the Court. A mountain out of a molehill has been made without appreciating the office notings in the true perspective. The Registry was fully conscious that the eight defects pointed out by it could not be permitted to be cured by the Registry itself and that is why the matter was directed to be placed before the concerned Judge as an unnumbered election petition.

On 18.7.2016, the learned Judge did not find merit in some of the objections pointed by the Registry and to the extent some minor corrections were required, which were not material, one week’s time was granted to respondent Nos.1 & 2 to carry out the corrections. The needful was done within the stipulated time and it is thereafter that notices were issued to the appellant.

16. The whole premise of the plea of the appellant is based on the Registry permitting corrections to be made is, thus, fallacious and, thus, the presentation of the petition cannot be said to be beyond time stipulated in Section 81(1) of the said Act. There was, in fact, really no occasion in these facts for the Court to examine the Registry officer as was done in the case of Sahodrabai Rai7.

17. The issue of supply of copies has also been appropriately dealt with as copies of a transcript and the CD were supplied as also the translation thereof. This is not the stage to verify as to whether the translation correctly reflects what was said. In any case it would be a supra doubtful proposition whether it was mandated that a translation should also be filed that being possibly a part of the requirement of the High Court Rules since the record had to be in English. It has rightly been observed that the phone has been filed and keeping the phone in a sealed cover or the allegation of non-supply of the chip alleged to be violative of Section 81(3) of the said Act is not a plea which can be accepted. At best these are all matters for trial.

18. We are conscious of the fact that the law relating to election is a technical one as it amounts to a challenge laid to the democratic process determining the will of the people. An eligible person whether a candidate or a voter coming to Court, seeking to set aside any election has to, thus, meet with the technical natures of the election petition and the provisions prescribed under the said Act as otherwise it would be fatal to the election petition at the threshold itself. It is in these circumstances that the principles have been succinctly set out in Mithilesh Kumar Pandey. The observations in that case provide for clerical and typographical errors to be corrected. Thus, issues like mentioning of the correct number of annexures or tagging with the file, supra etc. would all fall within the said Section.

19. Similarly copies of the documents have been supplied to the appellant and multiple copies of the phone or the chip (which is kept in a sealed cover) are not mandated to be supplied when the material relied upon in the phone has been reproduced in CD and a transcription also provided. The defence of the appellant cannot be said to be impaired in any manner.

20. We are, thus, of the unequivocal view that the pleas advanced on behalf of the appellant are meritless and deserve to be rejected.

21. The appeal is accordingly dismissed leaving the parties to bear their own costs.

J. (J. Chelameswar)

J. (Sanjay Kishan Kaul)

New Delhi.

March 08, 2018.

______________________________________

1 (1974) 4 SCC 237 (para14)

2 (1968) 3 SCR 13

3 (1983) 2 SCC 473

4 SCC 482 5 (1984) 2 SCC 1

CIVIL

Sadashio Mundaji Bhalerao Vs State of Maharashtra[ALL SC 2006 NOVEMBER]

12 Mar 2018 Advocatetanmoy

KEYWORDS:-EVIDENCE IN CUSTODIAL DEATH-

DATE:-28-11-2006.

AIR 2007 SC 1028 : (2006) 9 Suppl. SCR 733 : (2006) 12 SCALE 470

(SUPREME COURT OF INDIA)

Sadashio Mundaji Bhalerao	Appellant
Versus
State of Maharashtra	Respondent

(Before : G. P. Mathur And A. K. Mathur, JJ.)

Criminal Appeal No. 478 of 2005 with Cri. A. Nos. 479 and 480 of 2005, Decided on : 28-11-2006.

Penal Code, 1860—Sections 300 and 34—Murder—CUSTODIAL DEATH—Allegations of beatings against several accused-police officials—Absence of specific overt act—No dispute over fact that deceased was arrested along with others in dacoity case and he was in custody of said accused—Investigation and evidence not pointing person who was responsible for beating—Police registering case under Section 224, IPC—Same closed shortly thereafter—Dead body recovered by police could not be connected with that of deceased—Accused rightly acquitted by trial Court.

Penal Code, 1860—Section 300—Evidence Act, 1872—Section 9, 45—Murder—Identification of dead body—Finger prints of deceased taken through spoon method—Receipt produced by prosecution bearing thumb impression of deceased, not proved—Comparison of finger prints of deceased with that of thumb impression—Would be of no consequence—Relatives of deceased also declined to identify dead body—Prosecution can be said to have failed to establish that dead body was that of deceased.

Counsel for the Parties:

Uday Umesh Lalit, R. Sundaravardhan, Sr. Advocates, A. K. Sanghi, Aditya Kumar, Shivaji M. Jadhav, Himanshu Gupta, Brij Kishore Sah and Rahul Joshi, Advocates with them, for Appellant

Shekhar Naphade, Sr. Advocate, S. S. Shinde, Chinmoy Khaladker, V. N. Raghupathy and Aniruddha P. Mayee, Advocates with him, for Respondent.

Judgment

A. K. Mathur, J—These appeals are directed against the order dated 17-1-2005 passed by the Division Bench of the Bombay High Court at Nagpur Bench in Criminal Appeal No. 242 of 1996 whereby the Division Bench has reversed the acquittal of all the accused-appellants and convicted them under Sections 302 read with Section 34 of the Indian Penal Code (for short ‘IPC’) and sentenced them to suffer life imprisonment. The Division Bench also directed payment of fine of ` 30,000/- each by original accused Nos. 1, 2 and 3; ` 15,000/- by original accused No. 6; ` 10,000/- each by original accused Nos. 10, 11, 13, 15, 16 and 17. In default of payment of fine, they were also directed to undergo rigorous imprisonment for five years. So far as the offence under Section 201 read with 34, IPC was concerned, the original accused Nos. 1, 2, 3, 6, 10, 11, 13, 15, 16 and17 were sentenced to undergo rigorous imprisonment for five years. Original accused Nos. 1 to 3 were directed to pay a fine of ` 10,000/- each; accused No. 6 to pay fine of ` 5,000/- and accused Nos. 10, 11, 13, 15, 16 and 17 were directed to pay a fine of ` 2,500/- each. In default of payment of fine, they were to suffer further rigorous imprisonment for two years. The substantive sentences under Section 302 read with 34, I.P.C. and under Section 201 read with Section 34, I.P.C. were directed to run concurrently. Hence, the present appeals by the accused-appellants.

2. This is one of the unfortunate case where the deceased has died in the police custody. We are conscious that such incidents of suspect dying in the police custody has lately increased. This is an unfortunate scenario. But nonetheless we have to examine the matter objectively though keeping in mind the fact that the accused involved in all these appeals are nobody else than the Police officers and the investigation was being undertaken by their colleagues only. Therefore, we have to examine all the aspects objectively keeping in mind the fact that the accused involved in the present appeals are nobody else but the colleagues of another investigating agency.

3. Brief facts giving rise to filing of the present appeals are that the deceased Dilip along with other suspects were involved in a dacoity case which took place in the village Takarheda within the jurisdiction of Police-station, Arvi. One Namdeo Tulshiram Taywade, filed a complaint to this effect that the alleged dacoity has taken place in his house in which the inmates of the house were injured and certain ornaments had been taken away from his house. On the basis of this report, a case was registered on 24-10-1987 against unknown persons under Sections 395, 397 and 398, IPC vide Crime No. 254 of 1987. The investigation of the case was taken over by P.I. Bhadikar-the accused appellant. During the course of investigation, on 5-11-1987 the police arrested seven persons namely (1) Bastam Devidas Pawar, (2) Comrade Bhimrao Pawar, (3) Dilip Khusmya Ghosale, (4) Chaubharat Ramchandra Ghosale, (5) Partya Khusmya Ghosale, (6) Navbharat Ramachandra Ghosale and (7) Gangacharan Sukhadeo Pawar. The police arrested these persons and sought for judicial remand from the Judicial Magistrate for the purpose of investigation. The police was granted custody remand for seven days for the purpose of recovery of weapons of offence as well as stolen property. Till this time there was no complain of any ill-treatment of the accused. After taking remand from the Magistrate, the accused persons brought them to the Police-station.

4. On the night intervening between 5-11-1987 and 6-11-1987 when all the accused above mentioned were in police custody on remand by the Magistrate, the police was interrogating all the accused at the Police-station, Arvi. Dilip Khusmya Ghosale (hereinafter to be referred to as ‘Dilip’) who was one of the suspects in the aforesaid crime was taken up from the police lock up to Detection Branch room for interrogation by some of the accused-appellants and it is alleged that his hands were tied down and he was administered beating by kicks and fist blows and during this interrogation, Dilip died in the Detection Branch centre. It is alleged that though Dilip died on account of beating, but in order to cover up this fact, the police registered a case under Section 224, IPC on 6-11-1987 at 2.15 O’clock that the accused-Dilip has escaped from the police custody and thereafter wireless message was sent all over the State describing the general features of the accused-Dilip. It is alleged by the prosecution that a dead body was found lying in Adilabad, Andhra Pradesh and the post-mortem was conducted on the dead body by the P.S. Adilabad. The dead body was in a decomposed condition and it was cremated. During the course of investigation this fact came to the light. It was alleged that this dead body was that of deceased-Dilip and his finger prints were taken and it was sought to be matched with the finger prints on one receipt of purchase of a cow and it was sought to be connected with that of the deceased so as to establish that this was the dead body of deceased Dilip who was taken away by the police jeep and the same was disposed of at Adilabad in A.P. by the accused persons.

5. It appears that for some time nothing happened but some public spirited persons got a scent of it that some accused has died in police custody. Therefore, one Dr. Shyam Sundar Bhutada approached the concerned Superintendent of Police and informed him that it was a rumour in the town that one Dilip has died in the police custody. Thereafter, he lodged a written complaint in the police-station and this report was taken up by the In-charge of the Police-station. Accused No. 2- Bhadikar registered the offence under Section 302 read with 34, I.P.C. vide crime No. 263/87. Accused-appellant No. 1 took up the investigation. It appears that after some time the higher-ups in the Department came to know about this fact and therefore, this case was taken up by the C.I.D., Crime and it was entrusted to P.W.28, Deputy Superintendent of Police-Bhagwangir Goswami on 24-12-1987. Thereafter, the investigation was taken up by Shri Goswami who recorded the statement of all the co-accused who were held up in that dacoity case along with deceased Dilip and after completion of necessary investigation all the 17 accused persons including one D.S.P., incharge of the Police-Station were charged under Sections 302, 201 read with Section 34, IPC. The case was committed to the Court of Session. The prosecution examined a large number of witnesses in order to substantiate the allegation that accused-Dilip died in the police custody. Learned Second Additional Sessions Judge after recording necessary evidence came to the conclusion that the prosecution has failed to substantiate the allegation against the accused-police personnel and gave the benefit of doubt to all the accused persons and acquitted all of them. Aggrieved against the order of acquittal passed by learned Second Additional Sessions Judge dated 30-4-1996, the State preferred an appeal before the High Court against all the accused persons. The Division Bench of the High Court, Bombay; Bench at Nagpur reviewed the whole evidence on record and reversed the order of acquittal of all the accused persons and convicted them as aforesaid by its order dated 17-1-2005. Hence, the present appeals by the accused-appellants.

6. We have heard learned counsel for the parties and have perused the records. It is an admitted fact that the deceased was arrested in a dacoity case along with other persons and he was in the police custody. The case of the prosecution was that he was taken for interrogation in the interrogation room on the relevant date and he expired and in order to substantiate the allegation, the prosecution produced some of the witnesses who were already in the custody along with accused-Dilip, namely; P.Ws. 2, 3, 4 and 5. These witnesses alleged that deceased Dilip was detained along with them and Dilip was being taken with his hands tied for interrogation and he was administered beating and he shouted for sometime but after some time no shouting was heard and thereafter the deceased died. The police prepared a defence that the accused escaped from the Police-station and therefore, registered a case being crime No. 624/87 under Section 224, IPC on 6-11-1987. The first part of the evidence has to be closely examined whether the testimony of these witnesses is to be accepted and to what extent? P.W. 2 was an accused who was being prosecuted under Sections 302 and 307, IPC. He was also arrested along with the deceased Dilip and another accused detained in the police custody. Other accused were also there with him i.e. Babarao Neware and Sadashiv Uike involved in some other crime. He deposed that there is a police lock up which is separate from the Magistrate lock up. The distance between the two is 30 feet. He stated that one Paradhi boy was brought out of the Police-station and the accused persons were beating him with sticks, fist and kicks. They were assaulting the boy in front of the temple of the Police-station. He deposed that there are three windows in the room and that he heard the shrieks, therefore he woke up and noticed the incident through that window and he found that as a result of beating the paradhi boy i.e. the deceased Dilip became unconscious. He further stated that some water was brought and sprinkled on the face of the deceased. Then some of the accused persons told that the deceased was knowingly pretending to be unconscious and therefore, they further subjected him to beating. Then the deceased boy did not regain his consciousness and a police jeep was called and he was taken with handcuffed. This witness has an outstanding criminal records i.e. 35-36 criminal cases are pending against him. He has also stated hat he could not say as to how the blows landed on what part of the body as it was dark and he was at some distance. He also denied some suggestions made to him that he has not deposed that accused Kishore was asked to bring water and he has also deposed that the police jeep returned back in the Police-station at about 10 A.M. A suggestion was also given to him that since he has been implicated in number of cases by the Arvi Police therefore, out of vengeance he is deposing against the police. He went to the extent of implicating the DSP, In-charge of the Police-station. He also admitted that he has not deposed before the Police but for the first time he is deposing in the Court. PW3 Babarao Naware, another witness who was also there in the police lock up along with the deceased. He deposed that he knew accused Nos. 1, 2, 3, 7, 9, 11, 13 and 16 and he admitted that he along with deceased Dilip were held up in a dacoity case. He also deposed that the accused No. 2 along with other members of the Staff of police administered beating to the deceased and he went to the extent of implicating Deputy Superintendent of Police. He stated that he saw the whole incident through the window of the lock up and he noticed the incident from 10 to 15 feet. He also deposed that it was about 2.30 A.M., the police jeep took the dead body of the deceased Dilip and returned at about 7 to 8 A.M. This witness has also deposed that he has 31 criminal cases pending against him. He also admitted that one Deputy Superintendent of Police, Mr. Sharma met him but he did not state anything to him about this incident. According to him, the incident of beating continued for about three hours. He did not make a complain about this incident before the lock up guards nor did he tell them about this incident of kicks and blows being administered on the deceased during investigation but for the first time he deposed in the Court, he made a lot of improvement in his testimony, during the trial. P.W.4, who was also held up in a dacoity case, has admitted that he was arrested along with other accused persons. He also deposed that he heard the screaming of Dilip in the night at about 12 to 2 A.M. Thereafter, it is alleged that the deceased Dilip was not brought back alive in the Police-station. He also made a lot of improvements in his testimony like that he involved Deputy Superintendent of Police, Wardha who is one of the assailants and according to him, accused Kishore assaulted. P.W.5 was also arrested along with the deceased Dilip. He only deposed that the police took accused Dilip handcuffed from the room and he heard the shout of Dilip of beating. After some time the beating stopped and Dilip was not brought back to the room. P.W. 5 did not state who did the beating. Though he was called to identify the dead body of Dilip but he deposed that he failed to identify the dead body of the deceased Dilip. He was the brother of deceased Dilip. He was shown the photograph of the dead body of the deceased Dilip at Adilabad Police-station but he failed to identify the dead body. He also deposed that Dilip had sold his cow to Baraku Wadi (carpenter) and a receipt was executed to that effect. He has deposed that this receipt was given by him to the Police. He has categorically denied that the body which was shown to him was that of Dilip. This receipt is alleged to have been received by him from his mother. This is the total eye witnesses produced by the prosecution to substantiate the allegation against the accused. After appreciating the evidence the trial Court disbelieved all these witnesses. Apart from this evidence, circumstantial evidence was also sought to be pressed into service that the dead body which was seized by the Adilabad Police-station was that of the deceased-Dilip. For this the prosecution has led the evidence of some of the witnesses like P.Ws.7, 20 and 21 to substantiate that the dead body of the deceased was seized by the Police at Adilabad (A.P.). P.W. 5 produced a sale receipt of cow from another person to whom the deceased Dilip had sold his cow, which bears his thumb impression. The finger prints which were taken by the Police before disposal of the dead body by the Police at Adilabad Police-station was sought to be matched with the thumb impression of the deceased Dilip by producing handwriting expert, P.W. 23 that the thumb impression was that of the deceased. But unfortunately, P.Ws. 7, 20, 21, 9 and 10 all have been declared hostile. P.Ws. 7, 20 and 21 were produced to substantiate that the dead body of the deceased was taken in a jeep and P.Ws. 9 and 10 were produced to show that the receipt which was scribed by P.W. 10 which bears the thumb impression of the deceased and the same was sought to be connected with the finger prints which were taken from the dead body by spoon method but this circumstantial evidence has also not been accepted by the trial Court. This is the total evidence which had been sought to be pressed by the prosecution to substantiate the guilt of the accused.

7. Learned counsel for the accused-appellants has seriously contested and submitted that all the eye witnesses who have been produced by the prosecution have criminal records and secondly, they are also inimically disposed against the accused. It was also pointed out that the incident is said to have taken place in the dead of the night and it is very difficult for these witnesses to have seen the incident of beating by the accused persons to the deceased Dilip. It was pointed out that firstly no evidence had been led to show what was the height of the window from where these eye witnesses could see the beating to the deceased. Some witnesses state that some accused persons took the deceased by handcuffing with the rope in the D.B. room where they heard the shouting. But some said beating took place in open place near the temple. It was pointed out that there was no unanimity among the prosecution witnesses that who beat the deceased and how; whether all the 17 accused persons who were charged were all involved in beating to the deceased or some of them were involved in beating. Therefore, learned counsel has submitted that this kind of omissions in evidence cannot be accepted for convicting all the 17 accused of the P.S. Arvi, though the High Court has wrongly accepted their testimony on the face of it.

8. Learned senior counsel for the State, Shri Shekhar Naphade has fairly submitted that there are shortcomings in the testimony of these witnesses. But he has submitted that the fact remains that the deceased was in the custody of the police and the police has not accounted for him except by registering a case under Section 224, IPC and did not pursue the investigation further. He has also pointed out that the theory of escape is nothing but a fake make believe story by the accused and they abandoned that by closing the case on 29-4-1989 because they were aware of the fact that the deceased has not escaped but he has been the victim of their beating. Learned counsel for the State has emphasized that the investigation has also been done by the Police personnel i.e. by the C.I.D. and all the accused who are the eye witnesses are practically won over because their dacoity case was also closed on 24-10-1988. Therefore, their testimony has also to be closely scrutinized keeping in view the fact that they also stand to gain by siding towards the accused on the closure of the dacoity case. Learned counsel has also emphasized if the accused had pursued the theory of escape the case under Section 224, IPC would not have been closed. Secondly they could have cross-examined the witnesses in that light but no such cross-examination has been done by the accused. Therefore, this theory of escape of the deceased Dilip is nothing but a false theory. It is only with a view to create an evidence and to find an escape route for the accused persons.

9. Learned counsel in support of this has invited our attention to a decision of the Calcutta High Court in A.E.G. Carapiet v. A.Y. Derderian, AIR 1961 Cal 359 wherein it had been held that the parties should put their case in cross-examination of the witnesses. It was also held that this is the rule of one of the essential justice and not merely technical one. Learned counsel further invited our attention to a decision of this Court in State of M.P. v. Shyamsunder Trivedi and Ors., (1995) 4 SCC 262 wherein it has been held that in a case of CUSTODIAL DEATH or police torture, generally ocular or other direct evidence is not available and the police officials alone can explain the circumstances in which a person in their custody died. Exaggerated adherence to and insistence upon establishment of proof beyond every reasonable doubt was improper and the Court must adopt a realistic rather than a narrow technical approach. Learned counsel submitted that the deceased was last seen in the custody of the Police and he is not found alive. Therefore, this circumstance should alone be sufficient to hold the accused guilty. Learned counsel has also invited our attention to a decision of this Court in Sahadevan alias Sagadevan v. State represented by Inspector of Police, Chennai, (2003) 1 SCC 534 and submitted that last seen is a very important circumstance and if a person is last seen in the company of the accused and was never seen thereafter, it is obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. It was also held that false explanation can be taken as a circumstance against the accused. Learned counsel also invited our attention to a decision of this Court in Mani Kumar Thapa v. State of Sikkim, (2002) 7 SCC 157. In that case their Lordships held that in case of CUSTODIAL DEATH, failure of the accused in explaining the inculpating circumstance could form an additional link in the chain of circumstances. Learned counsel also invited our attention to a decision of this Court in Devender Kumar Singla v. Baldev Krishan Singla, (2005) 9 SCC 15. This was a case of cheating. In this case it was held that the statement under Section 313 of the Code of Criminal Procedure is not evidence. It is only a stand of the accused or his part of story. It was pointed out that in the absence of evidence, statement cannot be used to make up absence of any suggestion during cross-examination.

10. Now, a review of the ocular evidence produced by the prosecution keeping in view the submission made by learned counsel for the parties, we are of opinion that the statements of the witnesses cannot be accepted on their face. It is true that the deceased was not found alive but his dead body was found within the jurisdiction of Police-station, Adilabad in Andhra Pradesh. Keeping in view that the investigation has been done by the police personnel against the police personnel and also keeping in view the previous antecedents of the prosecution witnesses and the way they have described the beating, it is very difficult to rope in all the 17 accused persons for commission of the crime. In fact, the Police should have properly scrutinized the evidence and they could have pinpointed the person who was responsible for beating. But unfortunately, the police has not taken enough care to produce material evidence and pinpoint the person who was alleged to have been involved in beating the deceased. It is true that the deceased was last seen in the custody of the Police and thereafter he was not found alive. Though the police has made an attempt to cover up the story by registering a case under Section 224, I.P.C. but that was closed shortly thereafter. Therefore, in this background to draw inference from these circumstances, the guilt of the accused is very difficult. We are conscious that there is rise in incidents of CUSTODIAL DEATHs but we cannot completely dehors the evidence and its admissibility according to law to convict accused. We cannot act on presumption merely on a strong suspicion or assumption and presumption. We can draw only presumption which is permissible under the law and we cannot rush to the conclusion just because the deceased has died in the police custody without there being any proper link with the commission of the crime.

11. Learned senior counsel for the State, Mr. Shekhar Naphade very fairly submitted that despite the strong loopholes in the prosecution case the strongest circumstance which stand against the appellants is that the deceased was in the custody of the police and that he was last seen alive in the custody of the Police. Thereafter, he was not seen alive. Therefore, presumption should be drawn of the guilt of the accused. Commission of crime with reference to this type of presumption is perverse. It is true that the accused involved are police personnel but we cannot stand to condemn the whole police-station just on the basis of only circumstantial evidence of the deceased last seen in the custody of the police and thereafter he was not reported alive. Apart from this direct shaky evidence, it is very difficult to accept the evidence to connect the dead body with that of the deceased Dilip which came to the light after two years i.e. 1989. An attempt was made to connect the body of the deceased with that of Dilip, the prosecution led evidence of P.W. 22 who took the finger prints of the deceased body. P.W. 22 took the finger prints of the deceased on 10-11-1987 though he admitted that the prints were not visible and these finger prints were sought to be corroborated with the receipt which was produced by P.W. 5 which also bears the finger print of the deceased Dilip. For this the prosecution has also led evidence of P.W.10, the scribe of the receipt and P.W. 11. Both the witnesses turned hostile. Consequently, it is very doubtful how could the receipt given to the purchaser was with the seller i.e. Dilip which was scribed by P.W. 10 and it was said to be in possession of P.W. 5, the brother of the deceased and the explanation was that his mother gave it to him. The thumb impression of Dilip in the said receipt was sought to be connected with the finger prints of the deceased taken by P.W. 22. P.W. 22 obtained the same with spoon method of right hand thumb impression and left hand thumb impression of the deceased which was in highly decomposed condition, dermis and epidermis of fingers were not found. Firstly the thumb impression on the receipt was of Dilip has not been proved as P.W. 10 turned hostile. However, the prosecution tried to connect the body of the deceased by leading evidence of handwriting expert, P.W. 23. P.W. 22 was produced by the prosecution to show that he has taken the finger prints of the deceased through spoon method and that finger prints had been produced by the prosecution and P.W.23, the handwriting expert has been examined. P.W. 23 has of course deposed that he has sent his report and as per his finding the thumb impression on the receipt and that of the dead body taken by P.W. 22 are of the same person. But the question is whether the finger prints obtained on the receipt on sale of a cow by the deceased Dilip bears the thumb impression of Dilip or not. Since P.W. 10 has denied the thumb impression of Dilip was taken in his presence and since the receipt produced by the prosecution bearing the thumb impression of deceased Dilip is not proved, therefore, the comparison of the finger prints of the deceased with that of the thumb impression is of no consequence. More- so, the brother of the deceased, Paratya and his wife-Shobha have also declined to identify the dead body. Therefore, under these circumstances, the prosecution has failed to establish that the dead body was that of the deceased, Dilip. As such, this circumstantial evidence is also not of worth that it can connect the accused persons with the commission of the crime.

12. As a result of our above discussion we are of opinion that the view taken by the Division Bench of the High Court in reversing the judgment of Second Additional Sessions Judge, does not appear to be well founded. Normally, the appellate Court is very slow in interfering with the order of acquittal unless there are compelling circumstances to do so. After going through the judgment of the trial Court, we are of opinion that the view taken by the trial Court appears to be just and proper in the given facts and circumstances of the case and it was not proper for the Division Bech of the High Court to reverse the finding. We are satisfied that the reasons given by the High Court in reversing the order of acquittal of the accused persons are not cogent and does not appeal to the reason so as to justify the conviction of the appellants. Hence, we allow the appeals filed by the appellants and set aside the impugned judgment of the High Court and affirm the judgment of the trial Court and acquit all accused-appellants from the charges. The appellants shall be released forthwith if they are not required in any other case.

EVIDENCE

Evidence Act 1977 [State of Queensland]

27 Feb 2018 Advocatetanmoy

Evidence Act 1977

INDEX

Status information

Long title

Part 1 Preliminary

1 Short title

2 Act binds Crown

2A Notes in text

3 Definitions

4 Meaning of copy of document etc.

5 Meaning of document purporting to be of certain character etc.

Part 2 Witnesses

Division 1 Who may testify

6 Witnesses interested or convicted of offence

7 Parties, their wives and husbands as witnesses

8 Witnesses in a criminal proceeding

Division 1A Competency of witnesses and capacity to be sworn

9 Presumption as to competency

9A Competency to give evidence

9B Competency to give sworn evidence

9C Expert evidence about witness’s ability to give evidence

9D Evidence admitted under s 9A

Division 1B Special provisions for child witnesses

9E Principles for dealing with a child witness

Division 2 Privileges and obligations of witnesses

10 Privilege against self-incrimination

11 [Repealed]

12 Admissibility of evidence as to access by husband or wife

13 Compellability of parties and witnesses as to evidence of adultery

14 Abolition of certain privileges

Division 2A Sexual assault counselling privilege

Subdivision 1 Preliminary

14A Meaning of protected counselling communication

14B Other definitions for division

Subdivision 2 Committal and bail proceedings

14C Application of subdivision

14D Sexual assault counselling privilege

Subdivision 3 Other proceedings

14E Application of subdivision

14F Sexual assault counselling privilege

14G Application for leave

14H Deciding whether to grant leave

Subdivision 4 Waiver or loss of privilege

14I Waiver of privilege by counselled person

14J Loss of privilege if communication made in commission of offence

Subdivision 5 General provisions

14K Court to inform of rights

14L Standing of counsellor and counselled person

14M Deciding whether document or evidence is protected counselling communication

14N Ancillary orders

14O Application of division despite Justices Act 1886

14P Application of privilege in civil proceedings

Division 3 Examination and cross-examination of witnesses

15 Questioning a person charged in a criminal proceeding

15A Questioning of witness as to certain convictions

16 Witness may be questioned as to previous conviction

17 How far a party may discredit the party’s own witness

18 Proof of previous inconsistent statement of witness

19 Witness may be cross-examined as to written statement without being shown it

20 Cross-examination as to credit

21 Improper questions

Division 4 Evidence of special witnesses

21A Evidence of special witnesses

21AAA Exclusion of particular persons while videorecording or usable soundtrack being presented

Division 4A Evidence of affected children

Subdivision 1 Preliminary

21AA Purposes of div 4A

21AB How purposes are to be achieved

21AC Definitions for div 4A

21AD Meaning of child

Subdivision 2 Committal proceeding

21AE Application of sdiv 2

21AF Evidence-in-chief

21AG Cross-examination

21AH Limitation on cross-examination

Subdivision 3 Prerecording of affected child’s evidence

21AI Application of sdiv 3

21AJ Presentation of indictment

21AK Videorecording of affected child’s evidence

21AL Court to give directions for taking an affected child’s evidence

21AM Use of prerecorded evidence

21AN Giving of further evidence

21AO Court order that evidence not to be taken and recorded under this sdiv

Subdivision 4 Taking of affected child’s evidence using audio visual link or screen

21AP Application of sdiv 4

21AQ Audio visual links or screening arrangements must be used

21AR Court may order that s 21AQ does not apply

Subdivision 5 General

21AS Prosecutor or applicant to advise that an affected child is to give evidence

21AT Identification of persons or things by affected child

21AU Exclusion of public

21AV Affected child entitled to support

21AW Instructions to be given to jury

21AX Orders, directions and rulings concerning affected child witnesses

Division 4AA Use of soundtracks from particular videorecordings

21AXA Definition for division

21AXB Meaning of usable soundtrack

21AXC Court may make order for presentation of usable soundtrack

21AXD Use of usable soundtrack

Division 4B Dealings with, and destruction of, recordings

Subdivision 1 Preliminary

21AY Definitions for div 4B

Subdivision 2 Dealings with recordings

21AZ Approval to edit or otherwise change a recording

21AZA Court to give directions about the use or safekeeping of a recording

21AZB Unauthorised possession of, or dealing with, recording

21AZC Publishing a recording prohibited

Subdivision 3 Destruction of recordings

21AZD Relationship with other Acts

21AZE Making of practice directions authorising destruction

21AZF Court may make order about destruction

21AZG Destruction of particular digital recordings

21AZH Delegation by principal registrar

Division 5 Witness identity protection

Subdivision 1 Preliminary

21B Purposes of div 5

21C Definitions for div 5

21D Application of div 5 to lawyer of party to a proceeding

Subdivision 2 Witness identity protection certificates for operatives

21E Application of sdiv 2

21F Giving witness identity protection certificate

21G Form of witness identity protection certificate

21H Filing and notification

21I Effect of witness identity protection certificate

21J Orders to protect operative’s identity etc.

21K Disclosure of operative’s identity etc. despite certificate

21KA Directions to jury

21KB Witness identity protection certificate—cancellation

21KC Permission to give information disclosing operative’s identity etc.

21KD Disclosure offences

21KE Review of giving of witness identity protection certificate by police service

21KF Giving information about witness identity protection certificates

21KG Report about witness identity protection certificates

21KH Recognition of witness identity protection certificates under corresponding laws

Subdivision 3 General

21KI Delegation

Division 6 Cross-examination of protected witnesses

21L Application of division 6

21M Meaning of protected witness

21N No cross-examination of protected witness by person charged

21O Procedure for cross-examination of protected witness if person charged has no legal representative

21P Legal assistance for cross-examination of protected witness

21Q Satisfaction of Criminal Code , section 616

21R Jury direction

21S Orders, directions and rulings concerning protected witnesses

Part 3 Means of obtaining evidence

Division 1 Commissions, requests and orders to examine witnesses

22 Commission, request or order to examine witnesses

23 Commission or order in criminal cases

24 Power of person appointed by foreign authority to take evidence and administer oaths

Division 2 Summary procedure to obtain evidence for Queensland or other jurisdictions

25 Definitions for div 2

26 Power of Queensland court to request corresponding court in a prescribed country to take evidence for use in Queensland court

27 Power to take evidence on request from corresponding court of a prescribed country

28 Summons of witnesses

29 Examination

30 Objections

31 Depositions to be signed

32 Power of Queensland court to transmit requests to other places

33 Saving as to personal attendance

34 [Repealed]

Division 3 General procedure to obtain evidence for other jurisdictions

35 Definitions for div 3

35A Application of division to Crown

36 Application to Supreme Court to obtain evidence for civil proceedings in another jurisdiction

37 Power of Supreme Court to give effect to application to obtain evidence

38 Privilege of witnesses

39 Judicial proceedings for the purposes of the Criminal Code

40 [Repealed]

Part 3A Audio visual links and audio links

Division 1 Preliminary

39A Purposes of pt 3A

39B Application of pt 3A

39C Definitions for pt 3A

Division 2 Use of interstate audio visual links or audio links in proceedings before Queensland courts

39D Application of div 2

39E State courts may take evidence and submissions from outside State

39F Legal practitioners entitled to practise

Division 3 Use of interstate audio visual links or audio links in proceedings in participating States

39G Application of div 3

39H Recognised courts may take evidence or receive submissions from persons in Queensland

39I Powers of recognised courts

39J Orders made by recognised court

39K Enforcement of order

39L Privileges, protection and immunity of participants in proceedings before recognised court

39M Recognised court may administer oath in the State

39N Assistance to recognised court

39O Contempt of recognised court

39P Double jeopardy

Division 3A Use of audio visual links or audio links for expert witnesses

39PA Application of div 3A

39PB Expert witnesses to give evidence by audio visual link or audio link

39PC Direction to jury if expert witness gives evidence by audio visual link or audio link

Division 4 General provisions about the use of audio visual links or audio links

39Q Application of div 4

39R Queensland courts may take evidence and submissions from external location

39S Failure of the link

39T Expenses

39U External location to be considered part of Queensland court location

39V Witness outside Queensland—when compellable

39W Administration of oaths and affirmations

39X Testimony from outside Australia other than on oath

39Y Putting documents to a person at an external location

39Z Extension of rule-making power

Part 4 Judicial notice of seals, signatures and legislative enactments

41 Public Seal of the State

42 Signatures of holders of public offices etc. to be judicially noticed

42A Certain seals to be judicially noticed etc.

43 Acts and statutory instruments to be judicially noticed

43A Administrative arrangements to be judicially noticed

Part 5 Proof of documents and other matters

Division 1 Proof of official and judicial documents and matters

44 Proof by purported certificate, document etc.

45 Proof of gazette

46 Proof regarding government printer, parliamentary counsel and Legislative Assembly

46A Presumption of accuracy of official copy of Queensland legislation

46B Court or tribunal may inform itself about Act or statutory instrument

47 Proof of Legislative Assembly’s proceedings or legislative material

48 Proof of particular instruments

49 Proof of standard rules, codes and specifications

50 Proof of act done by Governor or Minister

51 Proof of public documents

52 Proof of registers of British vessels etc.

53 Proof of judicial proceedings

54 Proof of identity of a person convicted

55 Proof of incorporation or registration of company in Queensland

55A Proof of disaster situation under Disaster Management Act 2003

56 Proof of unallocated State land grants

57 Proof of lease or licence

58 Proof of letters patent

58A Proof of document under Royal Sign Manual

Division 2 Proof of certain miscellaneous documents and matters

59 Comparison of disputed writing

60 Proof of instrument to validity of which attestation is not necessary

61 Proof of instrument to validity of which attestation is necessary

62 Presumption as to documents 20 years old

63 Wills, deeds etc. may be verified by declaration

64 Evidentiary effect of probate etc.

65 Maps, charts etc.

66 Astronomical phenomena

Division 3 Proof of certain Australian and overseas documents and matters

67 Definitions for div 3

68 Proof of certain Australian and overseas written laws etc.

69 Proof of judicial proceedings of an overseas country

70 Proof of certain documents admissible elsewhere in Australia

71 Royal proclamations, orders of the Privy Council etc.

72 Proof of certain Australian and overseas public documents

73 Proof of incorporation or registration of certain Australian and overseas companies

74 Proof of birth, adoption, death or marriage

Division 4 Proof of telegraphic messages

75 Notice of intention to adduce telegraphic message in evidence

76 Proof of message

77 Proof of sending a message

Division 5 Admissibility of convictions in civil proceedings

78 Definitions for div 5

79 Convictions as evidence in civil proceedings

80 Convictions as evidence in actions for defamation

81 Evidence identifying the particulars of a conviction

82 Operation of other laws not affected

Division 6 Books of account

83 Definitions for div 6

84 Entries in book of account to be evidence

85 Proof that book is a book of account

86 Verification of copy

87 Matters which may be proved under this division ordinarily to be so proved

88 Court may order books of account or copies to be made available

89 Proof that a person has no account

90 Costs

91 Application of ss 84 –86 and 89

Part 6 Admissibility of statements and representations

92 Admissibility of documentary evidence as to facts in issue

93 Admissibility of documentary evidence as to facts in issue in criminal proceedings

93A Statement made before proceeding by child or person with an impairment of the mind

93AA Unauthorised possession of, or dealing in, s 93A criminal statements

93B Admissibility of representation in prescribed criminal proceedings if person who made it is unavailable

93C Warning and information for jury about hearsay evidence

94 Admissibility of evidence concerning credibility of persons responsible for statement

95 Admissibility of statements in documents or things produced by processes or devices

95A DNA evidentiary certificate

96 Inferences concerning admissibility

97 Authentication

98 Rejection of evidence

99 Withholding statement from jury room

100 Corroboration

101 Witness’s previous statement, if proved, to be evidence of facts stated

102 Weight to be attached to evidence

103 Provisions of part are alternative

Part 7 Reproductions of documents

Division 1 Preliminary

104 Definitions for part

Division 2 Reproduction of official documents

105 Certified reproductions of certain official documents etc. to be admissible without further proof

Division 3 Reproduction of business documents

106 Admissibility of reproductions of business documents destroyed, lost or unavailable

107 Use of photographing machines

108 Affidavit of maker of print from transparency to be evidence

109 Proof where document processed by independent processor

110 Reproduction not to be admitted as evidence unless transparency in existence

111 Transparency etc. may be preserved in lieu of document

112 Proof of destruction of documents etc.

113 One affidavit sufficient in certain circumstances

114 Certification required when affidavit etc. not contained in length or series of film

115 Discovery, inspection and production where document destroyed or lost

Division 4 General

116 Copies to be evidence

117 Further reproduction may be ordered by court

118 Colours and tones of reproductions

119 Notice to produce not required

120 Proof of comparisons not required

121 Presumptions as to ancient documents

122 Reproductions made in other States

123 Judicial notice

124 A court may reject reproduction

125 Weight of evidence

126 Provisions of part are alternative

127 [Repealed]

128 Regulation may exclude application of provisions

129 Public Records Act 2002 not affected

Part 8 Miscellaneous

129A Order that evidence may be given in a different way

129B Person may be examined without subpoena or other process

130 Rejection of evidence in criminal proceedings

131 Witnesses for defence to be sworn

131A Court may order interpreter to be provided

132 Actions for breach of promise of marriage

132A Admissibility of similar fact evidence

132B Evidence of domestic violence

132C Fact finding on sentencing

133 Impounding documents

133A DNA analysts

134 Power to appoint a government printer

134A Production of documents by agencies in relation to civil proceedings

134B Approval of forms

135 Regulation-making power

Part 9 Transitional and declaratory provisions

Division 1 Evidence Amendment Act 2000

136 Transitional—Evidence Amendment Act 2000

Division 1A Justice and Other Legislation Amendment Act 2003

136A Declaratory provision for Justice and Other Legislation Amendment Act 2003

Division 2 Evidence (Protection of Children) Amendment Act 2003

137 Definitions for div 2

138 Communications between a husband and wife

139 Evidence admitted under repealed s 9

140 Committal proceeding

141 Prerecording of evidence for a summary trial

142 Prerecording of evidence for a trial on indictment

Division 3 Cross-Border Law Enforcement Legislation Amendment Act 2005

143 Witness anonymity certificates

Division 4 Justice and Other Legislation Amendment Act 2005

144 Statement made before proceeding by child or person with an impairment of the mind

145 Definition chief executive (surveys)

Division 5 Criminal Code and Other Acts Amendment Act 2008

146 References to particular Criminal Code offences

Division 6 Health and Other Legislation Amendment Act 2016

147 Prescribed special offence taken to include references to Criminal Code , ss 208 and 209

Division 7 Serious and Organised Crime Legislation Amendment Act 2016

148 Special witnesses

Division 8 Criminal Law Amendment Act 2017

149 Definition for division

150 Admissibility of particular copies of videorecordings made before commencement

151 Destruction of recordings made before commencement

152 Application of DNA evidentiary certificate provision to proceedings started before commencement

Division 9 Victims of Crime Assistance and Other Legislation Amendment Act 2017

153 Sexual assault counselling privilege

Schedule 1 Examples of offices of a public nature established under an Act

Schedule 3 Dictionary

line

An Act to consolidate, amend and reform the law of evidence and for related purposes

Part 1 Preliminary

Short title

This Act may be cited as the Evidence Act 1977 .

2Act binds Crown

This Act binds the Crown not only in right of the State of Queensland but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

2ANotes in text

A note in the text of this Act is part of the Act .

3Definitions

The dictionary in schedule 3 defines particular words used in this Act.

4Meaning of copy of document etc.

In this Act, any reference to a copy of a document includes—

(a)in the case of a document falling within paragraph (e) but not paragraph (f) of the definition document in schedule 3 —a transcript of the sounds or other data embodied therein; and

(b)in the case of a document falling within paragraph (f) but not paragraph (e) of that definition—a reproduction or still reproduction of the image or images embodied therein, whether enlarged or not; and

(c)in the case of a document falling within both those paragraphs—such a transcript together with such a reproduction or still reproduction; and

(d)in the case of a document not falling within the said paragraph (f) of which a visual image is embodied in a document falling within that paragraph—a reproduction or still reproduction of that image, whether enlarged or not;

and any reference to a copy of the material part of a document shall be construed accordingly.

5Meaning of document purporting to be of certain character etc.

For the purposes of this Act a document, including any instrument or part of an instrument, purports—

(a)to be of a certain character; or

(b)to have been produced or authenticated at a certain time, in a certain manner, by a certain person or body, or by a person having a certain qualification or occupying a certain office; or

(c)any other matter whatever;

if the document expressly or impliedly represents that matter or a court can assume that matter from the contents of the document or otherwise.

Part 2 Witnesses

Division 1 Who may testify

6Witnesses interested or convicted of offence

No person shall be excluded from giving evidence in any proceeding on the ground—

(a)that the person has or may have an interest in the matter in question, or in the result of the proceeding; or

(b)that the person has previously been convicted of any offence.

7Parties, their wives and husbands as witnesses

(1)Each of the parties to a proceeding (not being a criminal proceeding) and a person on whose behalf such a proceeding is brought or defended is competent and compellable to give evidence on behalf of either or any of the parties to the proceeding.

(2)The husband or wife of a party to a proceeding (not being a criminal proceeding) and the husband or wife of a person on whose behalf such a proceeding is brought or defended is competent and compellable to give evidence on behalf of either or any of the parties to the proceeding.

(3)To remove any doubt, it is declared for subsections (1) and (2) that a party to a proceeding includes a person who is the subject of an inquiry, reference or examination.

8Witnesses in a criminal proceeding

(1)In a criminal proceeding, each person charged is competent to give evidence on behalf of the defence (whether that person is charged solely or jointly with any other person) but is not compellable to do so.

(2)The husband or wife of an accused person in a criminal proceeding is competent and compellable to give evidence in the proceeding in any court, either for the prosecution or for the defence, and without the consent of the accused.

(3)In a criminal proceeding, a husband or wife is competent and compellable to disclose communications made between the husband and the wife during the marriage.

Division 1A Competency of witnesses and capacity to be sworn

9Presumption as to competency

(1)Every person, including a child, is presumed to be—

(a)competent to give evidence in a proceeding; and

(b)competent to give evidence in a proceeding on oath.

(2)Subsection (1) is subject to this division.

9ACompetency to give evidence

(1)This section applies if, in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness in the proceeding to give evidence.

(2)The person is competent to give evidence in the proceeding if, in the court’s opinion, the person is able to give an intelligible account of events which he or she has observed or experienced.

(3)Subsection (2) applies even though the evidence is not given on oath.

9BCompetency to give sworn evidence

(2)The person is competent to give evidence in the proceeding on oath if, in the court’s opinion, the person understands that—

(a)the giving of evidence is a serious matter; and

(b)in giving evidence, he or she has an obligation to tell the truth that is over and above the ordinary duty to tell the truth.

(3)If the person is competent to give evidence in the proceeding but is not competent to give the evidence on oath, the court must explain to the person the duty of speaking the truth.

Note—

The Oaths Act 1867 , section 17 , makes provision for a person called as a witness to make his or her solemn affirmation instead of being sworn.

9CExpert evidence about witness’s ability to give evidence

(1)This section applies to a proceeding if—

(a)under section 9A , the court is deciding whether a person is able to give an intelligible account of events which he or she has observed or experienced; or

(b)under section 9B , the court is deciding whether a person understands the matters mentioned in section 9B (2)(a) and (b); or

(c)the evidence of a child under 12 years is admitted.

(2)Expert evidence is admissible in the proceeding about the person’s or child’s level of intelligence, including the person’s or child’s powers of perception, memory and expression, or another matter relevant to the person’s or child’s competence to give evidence, competence to give evidence on oath, or ability to give reliable evidence.

9DEvidence admitted under s 9A

(1)Evidence admitted under section 9A that is written down as a deposition is taken to be a deposition for all purposes.

(2)If evidence is admitted under section 9A —

(a)the probative value of the evidence is not decreased only because the evidence is not given on oath; and

(b)a person charged with an offence may be convicted on the evidence; and

(c)the person giving the evidence is liable to be convicted of perjury to the same extent as if the person had given the evidence on oath.

Division 1B Special provisions for child witnesses

9EPrinciples for dealing with a child witness

(1)Because a child tends to be vulnerable in dealings with a person in authority, it is the Parliament’s intention that a child who is a witness in a proceeding should be given the benefit of special measures when giving the child’s evidence.

(2)The following general principles apply when dealing with a child witness in a proceeding—

(a)the child is to be treated with dignity, respect and compassion;

(b)measures should be taken to limit, to the greatest practical extent, the distress or trauma suffered by the child when giving evidence;

(c)the child should not be intimidated in cross-examination;

(d)the proceeding should be resolved as quickly as possible.

(3)In this section—

child means a child under 16 years.

Division 2 Privileges and obligations of witnesses

10Privilege against self-incrimination

(1)Nothing in this Act shall render any person compellable to answer any question tending to criminate the person.

(2)However, in a criminal proceeding where a person charged gives evidence, the person’s liability to answer any such question shall be governed by section 15 .

12Admissibility of evidence as to access by husband or wife

Notwithstanding anything contained in any Act or any rule of law, neither the evidence of any person nor any statement made out of court by any person shall be inadmissible in any proceeding whatever by reason of the fact that it is tendered with the object of proving, or that it proves or tends to prove, that marital intercourse did or did not take place at any time or during any period between that person and a person who is or was the person’s wife or husband or that any child is or was, or is not or was not, their legitimate child.

13Compellability of parties and witnesses as to evidence of adultery

Notwithstanding anything in any Act or any rule of law, in any proceeding whatever—

(a)a party shall not be entitled to refuse to answer any interrogatory or to give discovery of documents;

(b)a witness, whether a party or not, shall not be entitled to refuse to answer any question, whether relevant to any issue or relating to credit merely;

on the ground solely that such answer or discovery would or might relate to, or would tend or might tend to establish, adultery by that party or that witness, or by any other person with that party or that witness, as the case may be.

14Abolition of certain privileges

(1)The following rules of law are hereby abrogated except in relation to criminal proceedings, that is to say—

(a)the rule whereby, in any proceeding, a person can not be compelled to answer any question or produce any document or thing if to do so would tend to expose the person to a forfeiture;

(b)the rule whereby, in any proceeding, a person other than a party to the proceeding can not be compelled to produce any deed or other document relating to the person’s title to any land.

(2)The rule of law whereby, in any civil proceeding, a party to the proceeding can not be compelled to produce any document relating solely to the party’s own case and in no way tending to impeach that case or support the case of any opposing party is hereby abrogated.

Division 2A Sexual assault counselling privilege

Subdivision 1 Preliminary

14AMeaning of protected counselling communication

(1)A protected counselling communication is an oral or written communication made in confidence—

(a)by a counselled person to a counsellor; or

(b)by a counsellor to or about a counselled person to further the counselling process; or

(c)about a counselled person by a parent, carer or other support person who is present to facilitate communication between the counselled person and a counsellor or to otherwise further the counselling process.

(2)However, a communication made to or by a health practitioner about a physical examination of the counselled person conducted in the course of an investigation into an alleged sexual assault offence is not a protected counselling communication.

(3)For subsection (1) it does not matter whether the communication was made—

(a)before or after the act or omission constituting the sexual assault offence committed or allegedly committed against the counselled person occurred; or

(b)in connection with the sexual assault offence, or a condition arising from the sexual assault offence, committed or allegedly committed against the counselled person.

(4)A reference in this division to a protected counselling communication includes a reference to—

(a)a document to the extent it contains a protected counselling communication; or

(b)evidence to the extent it discloses a protected counselling communication.

(5)In this section—

health practitioner means a person registered under the Health Practitioner Regulation National Law to practise a health profession.

14BOther definitions for division

In this division—

counsel a person means—

(a)to listen to and give verbal or other support, help or encouragement to the person, whether one-on-one or in a group; or

(b)to advise, give therapy to or treat the person, whether one-on-one or in a group.

counselled person means a person who—

(a)is being, or has at any time been, counselled by a counsellor; and

(b)is, or has at any time been, a victim or alleged victim of a sexual assault offence.

counsellor means a person who—

(a)has undertaken training or study, or has experience, that is relevant to the process of counselling other persons; and

(b)in the course of the person’s paid or voluntary employment, other than as a religious representative, counsels another person.

essential person, for a proceeding, means any of the following persons—

(a)a Crown law officer or a person authorised by a Crown law officer;

(b)the prosecutor;

(c)a witness giving evidence;

(d)a person who a witness is entitled to have present in court under section 21A (2)(d) or 21AV or the Criminal Law (Sexual Offences) Act 1978 , section 5 (1) (f) ;

(e)a person whose presence is, in the court’s opinion, necessary or desirable for the proper conduct of the proceeding;

(f)a person who applies to the court to be present and whose presence, in the court’s opinion—

(i)would serve a proper interest of the person; and

(ii)would not be prejudicial to a counselled person’s interests.

religious representative means a person who—

(a)is a member of—

(i)an organised religion; or

(ii)a religious group, even if the group is not part of, or does not consider itself to be part of, an organised religion; and

(b)holds a position in the religion or group that allows the person to hold himself or herself out as a representative of the religion or group.

sexual assault offence means—

(a)an offence of a sexual nature, including, for example—

(i)an offence against a provision of the Criminal Code , chapter 32; and

(ii)an offence against a provision of the Criminal Code , chapter 22, other than section 224, 225 or 226; or

(b)an act or omission that would constitute an offence mentioned in paragraph (a) if the act or omission had occurred—

(i)in Queensland; or

(ii)after the offence provision commenced; or

(c)an alleged offence mentioned in paragraph (a).

Subdivision 2 Committal and bail proceedings

14CApplication of subdivision

This subdivision applies to—

(a)a committal proceeding; or

(b)a proceeding under the Bail Act 1980 relating to bail for an offence, including a proceeding relating to the remand of a person in custody.

14DSexual assault counselling privilege

A person can not do any of the following things in connection with the proceeding—

(a)compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;

(b)produce to a court, adduce evidence of or otherwise use, a protected counselling communication;

(c)otherwise disclose, inspect or copy a protected counselling communication.

Subdivision 3 Other proceedings

14EApplication of subdivision

This subdivision applies to a proceeding—

(a)for the trial or sentencing of a person for an offence, other than a proceeding to which subdivision 2 applies; or

(b)relating to a domestic violence order under the Domestic and Family Violence Protection Act 2012 .

14FSexual assault counselling privilege

A person can not do any of the following things in connection with the proceeding, other than with the leave of the court hearing the proceeding—

(a)compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;

(b)produce to a court, adduce evidence of or otherwise use, a protected counselling communication;

(c)otherwise disclose, inspect or copy a protected counselling communication.

14GApplication for leave

(1)A party to the proceeding may apply for leave of the court under this subdivision.

(2)As soon as reasonably practicable after the application is made, the applicant must give the following persons a notice complying with subsection (3)—

(a)each other party to the proceeding;

(b)if the counsellor to whom the protected counselling communication relates is not a party to the proceeding—the counsellor.

(3)For subsection (2), the notice is a written notice stating—

(a)an application for leave under this subdivision has been made in relation to a protected counselling communication; and

(b)a description of the nature and particulars of the protected counselling communication (other than particulars disclosing the content of the communication); and

(c)if the counsellor or counselled person to whom the communication relates is not a party to the proceeding—that the counsellor or counselled person may appear in the proceeding under section 14L .

(4)If the counselled person to whom the protected counselling communication relates is not a party to the proceeding, the prosecutor must, as soon as practicable after a notice is given under subsection (2), give the counselled person a copy of the notice.

(5)The court can not decide the application until at least 14 days after subsection (2) is complied with.

(6)However, the court may waive the requirement to comply with subsection (2) if, in relation to the proceeding—

(a)notice has been given of a previous application for leave under this subdivision relating to the same protected counselling communication; or

(b)the counselled person to whom the protected counselling communication relates has consented to the waiver of the requirement; or

(c)the court is satisfied—

(i)exceptional circumstances exist that require the waiver of the requirement; and

(ii)it is in the public interest to waive the requirement.

(7)For subsection (6)(b), the consent must be given—

(a)in writing; or

(b)if the counselled person can not give written consent because of a disability—orally.

14HDeciding whether to grant leave

(1)The court can not grant an application for leave under this subdivision unless the court is satisfied that—

(a)the protected counselling communication the subject of the application will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value; and

(b)other documents or evidence concerning the matters to which the communication relates are not available; and

(c)the public interest in admitting the communication into evidence substantially outweighs the public interest in—

(i)preserving the confidentiality of the communication; and

(ii)protecting the counselled person from harm.

(2)In deciding the matter mentioned in subsection (1)(c), the court must have regard to the following matters—

(a)the need to encourage victims of sexual assault offences to seek counselling;

(b)that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship;

(c)the public interest in ensuring victims of sexual assault offences receive effective counselling;

(d)that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person;

(e)whether disclosure of the communication is sought on the basis of a discriminatory belief or bias;

(f)that the disclosure of the communication is likely to infringe a reasonable expectation of privacy;

(g)the extent to which the communication is necessary to enable the accused person to make a full defence;

(h)any other matter the court considers relevant.

(3)For deciding the application, the court may consider a written or oral statement made to the court by the counselled person outlining the harm the person is likely to suffer if the application is granted.

(4)If an oral statement is made by the counselled person under subsection (3), while the statement is being made the court must exclude from the room in which the court is sitting—

(a)anyone who is not an essential person; and

(b)an essential person, if—

(i)the counselled person asks that the essential person be excluded; and

(ii)the court considers excluding the essential person would serve a proper interest of the counselled person.

(5)The court must not disclose, or make available to a party to the proceeding, a statement made to the court under subsection (3).

(6)The court must state its reasons for granting or refusing to grant the application.

(7)If the proceeding is a trial by jury, the court must hear and decide the application in the absence of the jury.

(8)In this section—

harm includes physical, emotional or psychological harm, financial loss, stress or shock, and damage to reputation.

Subdivision 4 Waiver or loss of privilege

14IWaiver of privilege by counselled person

(1)This section applies, in relation to a proceeding to which subdivision 2 or 3 applies, if a document or evidence is a protected counselling communication.

(2)This division does not prevent the document being produced, or the evidence being adduced, if the counselled person to whom the protected counselling communication relates—

(a)is 16 years or more; and

(b)consents to the production of the document or adducing of the evidence; and

(c)is not a person with an impaired capacity for giving the consent.

(3)For subsection (2)(b), the consent must—

(a)expressly state the counselled person—

(i)consents to the production of a stated document, or the adducing of stated evidence, that is a protected counselling communication relating to the person; and

(ii)has had an opportunity to seek legal advice about giving the consent; and

(b)be given—

(i)in writing; or

(ii)if the counselled person can not give written consent because of a disability—orally.

(4)To remove any doubt, it is declared that subsection (3)(b) does not require the office of the director of public prosecutions to give the counselled person legal advice.

(5)In this section—

impaired capacity see the Guardianship and Administration Act 2000 , schedule 4 .

14JLoss of privilege if communication made in commission of offence

This division does not apply to a document or evidence that is a protected counselling communication if the communication was made in the commission of an offence.

Subdivision 5 General provisions

14KCourt to inform of rights

(1)This section applies in relation to a proceeding to which subdivision 2 or 3 applies if it appears to the court a person may have grounds for—

(a)applying for leave under subdivision 3 ; or

(b)objecting to the production of a document, or the adducing of evidence, that is a protected counselling communication.

(2)The court must satisfy itself the person is aware of the relevant provisions of this division and has had an opportunity to seek legal advice.

(3)If the proceeding is a trial by jury, the court must satisfy itself of the matter under subsection (2) in the absence of the jury.

(4)To remove any doubt, it is declared that subsection (2) does not require the office of the director of public prosecutions to give the person legal advice.

14LStanding of counsellor and counselled person

(1)This section applies if—

(a)a counselled person or counsellor is not a party to a proceeding to which subdivision 2 or 3 applies; and

(b)the court is deciding whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication.

(2)The counselled person or counsellor may appear in the proceeding, including any appeal.

14MDeciding whether document or evidence is protected counselling communication

(1)This section applies if a question arises under this division in relation to a proceeding to which subdivision 2 or 3 applies.

(2)The court may consider a document or evidence to decide whether it is a protected counselling communication.

(3)While the court is considering the document or evidence, the court must exclude from the room in which it is sitting—

(a)anyone who is not an essential person; and

(b)an essential person, if—

(i)the counselled person to whom the document or evidence relates asks that the essential person be excluded; and

(ii)the court considers excluding the essential person would serve a proper interest of the counselled person.

(4)The court may make any other order it thinks fit to facilitate its consideration of the document or evidence.

(5)This section applies despite sections 14D and 14F.

14NAncillary orders

(1)A court may make any order it considers appropriate to limit the extent of the harm likely to be caused to the counselled person by the production of a document, or the adducing of evidence, that is a protected counselling communication relating to the person.

Example—

an order that all or part of the evidence be heard, or the document produced, in camera

(2)In this section—

harm see section 14H .

14OApplication of division despite Justices Act 1886

To the extent of an inconsistency, this division applies despite a provision of the Justices Act 1886 .

14PApplication of privilege in civil proceedings

(1)This section applies if, in a proceeding to which subdivision 2 or 3 applies, a protected counselling communication is privileged under this division.

Note—

A protected counselling communication is not privileged under this division if—

(a)leave is granted under subdivision 3 in relation to it; or

(b)the privilege is waived or lost under subdivision 4 .

(2)A person can not produce a document containing, or adduce evidence of, the protected counselling communication in a civil proceeding arising from the act or omission to which the proceeding mentioned in subsection (1) relates.

Division 3 Examination and cross-examination of witnesses

15Questioning a person charged in a criminal proceeding

(1)Where in a criminal proceeding a person charged gives evidence, the person shall not be entitled to refuse to answer a question or produce a document or thing on the ground that to do so would tend to prove the commission by the person of the offence with which the person is there charged.

(2)Where in a criminal proceeding a person charged gives evidence, the person shall not be asked, and if asked shall not be required to answer, any question tending to show that the person has committed or been convicted of or been charged with any offence other than that with which the person is there charged, or is of bad character, unless—

(a)the question is directed to showing a matter of which the proof is admissible evidence to show that the person is guilty of the offence with which the person is there charged;

(b)the question is directed to showing a matter of which the proof is admissible evidence to show that any other person charged in that criminal proceeding is not guilty of the offence with which that other person is there charged;

(c)the person has personally or by counsel asked questions of any witness with a view to establishing the person’s own good character, or has given evidence of the person’s good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution or of any other person charged in that criminal proceeding;

(d)the person has given evidence against any other person charged in that criminal proceeding.

(3)A question of a kind mentioned in subsection (2)(a), (b) or (c) may be asked only with the court’s permission.

(4)If the proceeding is a trial by jury, an application for the court’s permission under subsection (3) must be made in the absence of the jury.

15AQuestioning of witness as to certain convictions

A witness in any criminal or civil proceeding shall not be asked and if asked shall not be required to answer any question tending to show that the witness has committed or been convicted of or been charged with any offence if, where the witness has been convicted of the offence—

(a)the conviction is one in relation to which a rehabilitation period is capable of running pursuant to the Criminal Law (Rehabilitation of Offenders) Act 1986 ; and

(b)in relation to the conviction the rehabilitation period within the meaning of that Act is not running at the time of the criminal or civil proceeding;

unless the permission of the court to ask the question has first been obtained, such permission to be applied for in a trial by jury in the absence of the jury.

16Witness may be questioned as to previous conviction

Subject to this Act, a witness may be questioned as to whether the witness has been convicted of any indictable or other offence and upon being so questioned, if the witness either denies the fact or refuses to answer, it shall be lawful for the party so questioning to prove such conviction.

17How far a party may discredit the party’s own witness

(1)A party producing a witness shall not be allowed to impeach the credit of the witness by general evidence of bad character but may contradict the witness by other evidence, or (in case the witness in the opinion of the court proves adverse) may by leave of the court prove that the witness has made at other times a statement inconsistent with the present testimony of the witness.

(2)However, before such last mentioned proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement.

18Proof of previous inconsistent statement of witness

(1)If a witness upon cross-examination as to a former statement made by the witness relative to the subject matter of the proceeding and inconsistent with the present testimony of the witness does not distinctly admit that the witness has made such statement, proof may be given that the witness did in fact make it.

(2)However, before such proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement.

19Witness may be cross-examined as to written statement without being shown it

(1)A witness may be cross-examined as to a previous statement made by the witness in writing or reduced into writing relative to the subject matter of the proceeding without such writing being shown to the witness.

(1A)However, if it is intended to contradict the witness by the writing the attention of the witness must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting the witness.

(2)A court may at any time during the hearing of a proceeding direct that the writing containing a statement referred to in subsection (1) be produced to the court and the court may make such use in the proceeding of the writing as the court thinks fit.

20Cross-examination as to credit

(1)The court may disallow a question as to credit put to a witness in cross-examination, or inform the witness the question need not be answered, if the court considers an admission of the question’s truth would not materially impair confidence in the reliability of the witness’s evidence.

(2)In this section—

question as to credit, for a witness, means a question that is not relevant to the proceeding except that an admission of the question’s truth may affect the witness’s credit by injuring the witness’s character.

21Improper questions

(1)The court may disallow a question put to a witness in cross-examination or inform a witness a question need not be answered, if the court considers the question is an improper question.

(2)In deciding whether a question is an improper question, the court must take into account—

(a)any mental, intellectual or physical impairment the witness has or appears to have; and

(b)any other matter about the witness the court considers relevant, including, for example, age, education, level of understanding, cultural background or relationship to any party to the proceeding.

(3)Subsection (2) does not limit the matters the court may take into account in deciding whether a question is an improper question.

(4)In this section—

improper question means a question that uses inappropriate language or is misleading, confusing, annoying, harassing, intimidating, offensive, oppressive or repetitive.

Division 4 Evidence of special witnesses

21AEvidence of special witnesses

(1)In this section—

criminal organisation see the Penalties and Sentences Act 1992 , section 161O .

domestic violence see the Domestic and Family Violence Protection Act 2012 , section 8 .

participant, in a criminal organisation, see the Penalties and Sentences Act 1992 , section 161P .

party includes a person who is present in court and is a member, a representative (other than a legal representative) or a nominee of an organisation that is a party to the proceeding.

relevant matter, for a person, means the person’s age, education, level of understanding, cultural background or relationship to any party to the proceeding, the nature of the subject matter of the evidence, or another matter the court considers relevant.

serious criminal offence means—

(a)an indictable offence punishable by at least 7 years imprisonment, including an offence against a repealed provision of an Act; or

(b)a prescribed offence as defined under the Penalties and Sentences Act 1992 , section 161N , other than an offence mentioned in paragraph (a), charged with a circumstance of aggravation stated in section 161Q of that Act.

sexual offence means an offence of a sexual nature, including, for example—

(a)an offence against a provision of the Criminal Code , chapter 32; and

(b)an offence against a provision of the Criminal Code , chapter 22, other than section 224, 225 or 226.

special witness means—

(a)a child under 16 years; or

(b)a person who, in the court’s opinion—

(i)would, as a result of a mental, intellectual or physical impairment or a relevant matter, be likely to be disadvantaged as a witness; or

(ii)would be likely to suffer severe emotional trauma; or

(iii)would be likely to be so intimidated as to be disadvantaged as a witness;

if required to give evidence in accordance with the usual rules and practice of the court; or

(c)a person who is to give evidence about the commission of a serious criminal offence committed by a criminal organisation or a participant in a criminal organisation; or

(d)a person—

(i)against whom domestic violence has been or is alleged to have been committed by another person; and

(ii)who is to give evidence about the commission of an offence by the other person; or

(e)a person—

(i)against whom a sexual offence has been, or is alleged to have been, committed by another person; and

(ii)who is to give evidence about the commission of an offence by the other person.

(1A)This section does not apply to a child to the extent division 4A applies to the child.

(1B)A party to a proceeding or, in a criminal proceeding, the person charged may be a special witness.

(2)Where a special witness is to give or is giving evidence in any proceeding, the court may, of its own motion or upon application made by a party to the proceeding, make or give 1 or more of the following orders or directions—

(a)in the case of a criminal proceeding—that the person charged or other party to the proceeding be excluded from the room in which the court is sitting or be obscured from the view of the special witness while the special witness is giving evidence or is required to appear in court for any other purpose;

(b)that, while the special witness is giving evidence, all persons other than those specified by the court be excluded from the room in which it is sitting;

(c)that the special witness give evidence in a room—

(i)other than that in which the court is sitting; and

(ii)from which all persons other than those specified by the court are excluded;

(d)that a person approved by the court be present while the special witness is giving evidence or is required to appear in court for any other purpose in order to provide emotional support to the special witness;

(e)that a videorecording of the evidence of the special witness or any portion of it be made under such conditions as are specified in the order and that the videorecorded evidence be viewed and heard in the proceeding instead of the direct testimony of the special witness;

(f)another order or direction the court considers appropriate about the giving of evidence by the special witness, including, for example, any of the following—

(i)a direction about rest breaks for the special witness;

(ii)a direction that questions for the special witness be kept simple;

(iii)a direction that questions for the special witness be limited by time;

(iv)a direction that the number of questions for a special witness on a particular issue be limited.

(4)Subject to any order made pursuant to subsection (5), in any criminal proceeding an order shall not be made pursuant to subsection (2)(a), (b) or (c) excluding the person charged from the room in which a special witness is giving evidence unless provision is made, by means of an electronic device or otherwise, for that person to see and hear the special witness while the special witness is giving evidence.

(5)Where the making of a videorecording of the evidence of a special witness is ordered pursuant to subsection (2)(e), the court may further order that all persons other than those specified by the court be excluded from the room in which the special witness is giving that evidence.

(5A)However, any person entitled in the proceeding to examine or cross-examine the special witness shall be given reasonable opportunity to view any portion of the videorecording of the evidence relevant to the conduct of that examination or cross-examination.

(6)A videorecording made under this section of evidence given by a special witness, or a lawfully edited copy of the videorecording—

(a)is as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court; and

(b)is, unless the relevant court otherwise orders, admissible in—

(i)any rehearing or retrial of, or appeal from, the proceeding; or

(ii)in the case of evidence given for a criminal proceeding—

(A)another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or

(B)a civil proceeding arising from the commission of the offence.

(6A)A reference in subsection (6) to a videorecording made under this section includes a reference to a copy of the videorecording on a separate data storage medium if—

(a)the videorecording is a digital recording; and

(b)the copy of the videorecording on the separate data storage medium has been made by—

(i)the principal registrar of a court; or

(ii)a person authorised by the principal registrar of a court to copy the videorecording onto the separate data storage medium.

(7)The room in which a special witness gives evidence pursuant to an order made pursuant to subsection (2)(c) or (e) shall be deemed to be part of the court in which the proceeding is being held.

(8)If evidence is given, or to be given, in a proceeding on indictment under an order or direction mentioned in subsection (2)(a) to (e), the judge presiding at the proceeding must instruct the jury that—

(a)they should not draw any inference as to the defendant’s guilt from the order or direction; and

(b)the probative value of the evidence is not increased or decreased because of the order or direction; and

(c)the evidence is not to be given any greater or lesser weight because of the order or direction.

21AAA Exclusion of particular persons while videorecording or usable soundtrack being presented

(1)This section applies if the evidence of a special witness contained in either of the following is to be presented at a proceeding—

(a)a videorecording made under section 21A , or a lawfully edited copy of the videorecording;

(b)the usable soundtrack of a videorecording, or a lawfully edited copy of a videorecording, mentioned in paragraph (a), or a lawfully edited copy of the usable soundtrack.

Note—

See part 2 , division 4AA in relation to the use of soundtracks from particular recordings.

(2)The court may, on its own initiative or on an application made by a party to the proceeding, order that, while the evidence is being presented at the proceeding, all persons other than those specified by the court be excluded from the room in which it is sitting.

(3)However, if the evidence is to be presented at a criminal proceeding, the court may not, under subsection (2), exclude the person charged.

Notes—

1See section 21A (2)(a) and (b), (4) and (5) in relation to the court’s power to exclude particular persons while a special witness is giving evidence under that section.

2See the Child Protection Act 1999 , section 193 for restrictions on disclosing identifying information about a special witness who is a child.

Division 4A Evidence of affected children

Subdivision 1 Preliminary

21AAPurposes of div 4A

The purposes of this division are—

(a)to preserve, to the greatest extent practicable, the integrity of an affected child’s evidence; and

(b)to require, wherever practicable, that an affected child’s evidence be taken in an environment that limits, to the greatest extent practicable, the distress and trauma that might otherwise be experienced by the child when giving evidence.

21ABHow purposes are to be achieved

To achieve the purposes of this division, the division prescribes the following measures for an affected child when giving evidence for a relevant proceeding—

(a)for a criminal proceeding—

(i)the child’s evidence is to be prerecorded in the presence of a judicial officer, but in advance of the proceeding;

(ii)if the measure in subparagraph (i) can not be given effect, the child’s evidence is to be given at the proceeding, but with the use of an audio visual link or with the benefit of a screen;

(iii)for a committal proceeding, the child’s evidence-in chief is to be given only as a statement and, ordinarily, the child is not to be called as a witness for cross-examination;

(b)for a civil proceeding, the child’s evidence is to be given at the proceeding with the use of an audio visual link or with the benefit of a screen.

21ACDefinitions for div 4A

In this division—

affected child means a child who is a witness in a relevant proceeding and who is not a defendant in the proceeding.

child see section 21AD .

civil proceeding arising from the commission of a relevant offence does not include a proceeding for a domestic violence order under the Domestic and Family Violence Protection Act 2012 .

counsel includes solicitor.

defendant means—

(a)in a criminal proceeding—a person charged with an offence; or

(b)in a civil proceeding arising from the commission of a relevant offence—a person whose act or omission is complained of.

offence involving violence means an offence against any of the following provisions of the Criminal Code —

•a provision of chapter 28 or 28A

•a provision of chapter 29 other than section 317A, 318, 319, 321, 321A, 327, 329, 330, 333 or 334

•sections 335, 339, 340, 354, 354A and 355

•a provision of chapter 33A

•sections 363, 363A and 364.

offence of a sexual nature means an offence against any of the following provisions of the Criminal Code —

•a provision of chapter 22 other than section 224, 225 or 226

•a provision of chapter 32.

parentage order relationship means a relationship arising because of—

(a)a parentage order under the Surrogacy Act 2010 ; or

(b)an order of another Australian jurisdiction that corresponds to a parentage order made under that Act.

preliminary hearing means a hearing under section 21AK .

prescribed relationship, between a child who is a witness in a proceeding and a defendant in the proceeding, means any of the following—

(a)a relationship, regardless of whether it is a half, adoptive, step or parentage order relationship, where the defendant is—

(i)a parent of the child; or

(ii)a grandparent of the child; or

(iii)a brother or sister of the child; or

(iv)an uncle, aunt, nephew, niece or cousin of the child;

(b)a relationship arising because, at the time of the alleged offence with which the defendant is charged, the defendant lived in the same household as the child;

(c)a relationship arising because the defendant had the care of, or exercised authority over, the child in a household on a regular basis.

proceeding means any civil or criminal proceeding, including a preliminary hearing.

relevant offence, in relation to a proceeding, means—

(a)an offence of a sexual nature; or

(b)an offence involving violence, if there is a prescribed relationship between a child who is a witness in the proceeding and a defendant in the proceeding.

relevant proceeding means—

(a)a criminal proceeding for a relevant offence, whether or not the proceeding also relates to other offences; or

(b)a civil proceeding arising from the commission of a relevant offence.

step relationship includes a relationship corresponding to a step relationship arising because of cohabitation in a de facto relationship or because of a foster relationship or a legal arrangement.

21ADMeaning of child

(1)For the purposes of a proceeding for this division, a child is—

(a)if the proceeding is a criminal proceeding—

(i)an individual who is under 16 years when the first of the following happens—

(A)the defendant in the proceeding is arrested;

(B)a complaint is made under the Justices Act 1886 , section 42 in relation to the defendant in the proceeding;

(C)a notice to appear is served on the defendant in the proceeding under the Police Powers and Responsibilities Act 2000 , section 382 ; or

(ii)an individual who is 16 or 17 years when the first of the matters mentioned in subparagraph (i) happens and who is a special witness; or

(b)if the proceeding is a civil proceeding arising from the commission of a relevant offence—

(i)an individual who is under 16 years when the proceeding starts; or

(ii)an individual who is 16 or 17 years when the proceeding starts and who is a special witness.

(2)An individual remains a child for the purposes of giving evidence for a proceeding if the child gives evidence for the proceeding at any time before the child turns 18 years.

Subdivision 2 Committal proceeding

21AEApplication of sdiv 2

This subdivision applies to the taking of an affected child’s evidence for a committal proceeding for a relevant offence, whether or not the committal proceeding also relates to other offences.

21AFEvidence-in-chief

(1)The affected child’s evidence-in-chief must be given as a statement without the child being called as a witness.

(2)For this section, the Justices Act 1886 , section 110A applies with all necessary changes and as though a reference in that section to a written statement included a reference to a statement contained in a document as defined under schedule 3 .

(3)Also, for the purposes of applying the Justices Act 1886 , section 110A , that section is to be read with the following changes—

(a)if the child’s statement is a written statement—subsections (4), (5), (6), (6B), (8) and (9) of that section were omitted;

(b)if the child’s statement is not a written statement—

(i)subsections (4), (5), (6), (6B), (6C), (8) and (9) of that section were omitted; and

(ii)in subsection (13)—

(A)the words ‘read as evidence’ were omitted and the words ‘received as evidence’ were inserted in their place; and

(B)paragraph (a) were omitted.

(4)Further, for the purposes of applying the Justices Act 1886 , section 111 , that section applies with all necessary changes and is to be read as though, in subsections (1) and (2), the words ‘read as evidence’ were omitted and the words ‘received as evidence’ were inserted in their place.

(5)In addition, for the purposes of applying the Criminal Law Amendment Act 1892 , section 4 , that section applies with all necessary changes and is to be read as though—

(a)a reference to a deposition included a reference to a statement contained in a document; and

(b)a reference to the reading of a deposition that is not a written statement included a reference to the showing of a statement contained in a document.

(6)In this section—

statement means—

(a)a written statement; or

(b)a statement contained in a document.

21AGCross-examination

(1)The affected child may be cross-examined only if, under this section, a magistrate requires a party to call the child as a witness for that purpose.

(2)The requirement may be made, on an application, by—

(a)a magistrate at a direction hearing under the Justices Act 1886 , section 83A ; or

(b)the magistrate presiding at the committal proceeding.

(3)A magistrate at a direction hearing must not require the child to be called as a witness for cross-examination unless the magistrate is satisfied that—

(a)the party seeking to cross-examine the child has—

(i)identified an issue to which the proposed questioning relates; and

(ii)provided a reason why the evidence of the child is relevant to the issue; and

(iii)explained why the evidence disclosed by the prosecution does not address the issue; and

(iv)identified to the magistrate the purpose and general nature of the questions to be put to the child to address the issue; and

(b)the interests of justice can not adequately be satisfied by leaving cross-examination of the child about the issue to the trial.

(4)The magistrate presiding at the committal proceeding must not require the child to be called as a witness for cross-examination unless the magistrate is satisfied that—

(a)the evidence before the court at the committal has identified an issue to which the proposed questioning relates that could not reasonably have been anticipated before the committal; and

(b)the party making the application has—

(i)provided a reason why the evidence of the child is relevant to the issue; and

(ii)explained why the evidence before the court does not address the issue; and

(iii)identified to the magistrate the purpose and general nature of the questions to be put to the child to address the issue; and

(c)the interests of justice can not adequately be satisfied by leaving cross-examination of the child about the issue to the trial.

(5)Without limiting the matters to which the magistrate may have regard for subsection (3)(b) or (4)(c), the magistrate—

(a)must consider whether—

(i)the prosecution case is adequately disclosed; and

(ii)the charge is adequately particularised; and

(b)must have regard to the vulnerability of children, the general principles stated in section 9E and the undesirability of calling a child as a witness for a committal proceeding.

(6)The magistrate must give reasons for the magistrate’s decision on the application.

(7)If, under this section, the magistrate requires a party to call the child as a witness for cross-examination—

(a)the child’s evidence must be taken under subdivision 3 or 4; and

(b)when the magistrate decides the application, the magistrate must decide whether the child’s evidence is to be taken under subdivision 3 or under subdivision 4 , and how it is to be taken, and give a direction accordingly.

(8)In deciding whether the child’s evidence is to be taken under subdivision 3 or 4, and how it is to be taken, the magistrate must have regard to the following—

(a)the distress or trauma likely to be suffered by the child when giving evidence and the need to minimise the child’s distress or trauma;

(b)whether a local court has an audio visual link and, if not, the availability of another appropriate place with appropriate equipment and facilities for taking or videorecording the child’s evidence under subdivision 3 or 4;

(c)whether the parties would be substantially inconvenienced if the proceeding were to be adjourned to another place mentioned in paragraph (b) that is not within the same locality as the court;

(d)the need for committal proceedings to be conducted expeditiously.

(9)In this section—

local court means—

(a)in relation to a magistrate at a direction hearing—a court at which the committal proceeding would ordinarily be held; or

(b)in relation to the magistrate presiding at the committal proceeding—the court in which the committal proceeding is being held or another court within the court precincts.

magistrate, presiding at a committal proceeding, includes justices presiding at the proceeding.

21AHLimitation on cross-examination

(1)If the affected child is to be cross-examined, the party calling the child may first ask the child questions for identifying the child and establishing that the child made the statement mentioned in section 21AF and the truthfulness of the statement.

(2)The presiding magistrate or justices must not allow the child to be cross-examined about an issue other than the issue in relation to which the child was required to be called unless the magistrate or justices are satisfied as mentioned in section 21AG (3)(a) and (b) or section 21AG (4)(a) to (c), whichever is relevant, in relation to the issue.

(3)Also, the presiding magistrate or justices—

(a)must not allow cross-examination to continue to the extent it—

(i)does not appear relevant to an issue for which it may be conducted; or

(ii)consists of exploratory questions asked in the hope of receiving any answer of any assistance to the party conducting the cross-examination, commonly known as a ‘fishing expedition’; and

(b)must disallow a question that may be disallowed under section 20 or 21 .

(4)The child may be re-examined by the party calling the child.

Subdivision 3 Prerecording of affected child’s evidence

21AIApplication of sdiv 3

(1)This subdivision applies to taking an affected child’s evidence—

(a)for a summary trial for a relevant offence; and

(b)for a trial on indictment for a relevant offence; and

(c)for a committal proceeding for a relevant offence, if a magistrate or justices give a direction as mentioned in section 21AG (7)(b) that the child’s evidence is to be taken under this subdivision.

(2)However, this subdivision does not apply to an affected child who is a witness for the defence.

(3)Subsection (1) applies to a proceeding whether or not the proceeding also relates to offences other than the relevant offence.

21AJPresentation of indictment

If the affected child’s evidence is to be taken for a trial on indictment, the indictment must be presented before the evidence can be taken under this subdivision.

21AKVideorecording of affected child’s evidence

(1)The affected child’s evidence must be taken and videorecorded at a hearing under this section (a preliminary hearing) presided over by a judicial officer.

Note—

See section 21AO for when a court may order that an affected child’s evidence not be taken and videorecorded under this subdivision.

(2)The videorecording must be presented—

(a)if taken for a committal proceeding—to the court at the committal proceeding; or

(b)if taken for a trial—to the court at the trial.

(3)To facilitate the operation of this section for the taking of the child’s evidence in a proceeding, the judicial officer may order that the preliminary hearing be conducted by audio visual link.

(4)The provisions of part 3A relating to the use of an audio visual link in criminal proceedings apply for, and are not limited by, subsection (3).

(5)To facilitate the operation of this section for a trial, the judicial officer must, if it is not practicable at the place of the trial to take and videorecord the child’s evidence—

(a)adjourn the trial to an appropriately equipped place to allow the evidence to be taken and videorecorded; or

(b)make another order the judicial officer considers appropriate including, for example, an order that the preliminary hearing be conducted by audio visual link.

(6)If the taking and videorecording of the child’s evidence is done at a place that is not a courtroom, the place is taken to be a courtroom for all purposes for the preliminary hearing.

(7)It does not matter whether or not the judicial officer presiding and the counsel appearing at the preliminary hearing are the same judicial officer presiding and counsel appearing at an adjourned preliminary hearing or at the proceeding in which the videorecording is presented to the court.

(8)Also, it does not matter if, while the preliminary hearing is conducted, the judicial officer, counsel, parties and witnesses are at different places.

Example—

To facilitate the taking and videorecording of the affected child’s evidence, the judicial officer directs that the child give the evidence by audio visual link. The preliminary hearing is conducted while the judicial officer, counsel and defendant are in a courtroom in a particular city and the child is in a room in another city connected to the courtroom through the audio visual link.

(9)In this section—

appropriately equipped place, for the taking and videorecording of an affected child’s evidence, means a court, or another place that is not a court, that—

(a)is equipped to take and videorecord the child’s evidence; and

(b)allows the defendant to see and hear the child while the child is giving evidence, for example, through an audio visual link.

evidence means evidence-in-chief or evidence given in cross-examination or re-examination.

21ALCourt to give directions for taking an affected child’s evidence

(1)The judicial officer presiding at the preliminary hearing may make any order the judicial officer considers appropriate in relation to taking and videorecording the affected child’s evidence.

(2)Without limiting subsection (1), the judicial officer may give directions, with or without conditions, as to the conduct of the preliminary hearing, including directions as to—

(a)whether the child is to be in the courtroom or a separate room when the child’s evidence is being taken; and

(b)the persons who may be present in the same room as the child when the child’s evidence is being taken.

(3)Subsection (2)(b) is subject to section 21AU .

Note—

Section 21AU makes provision about the exclusion of persons while an affected child witness is giving evidence in relation to a relevant offence.

(4)At the preliminary hearing—

(a)the defendant—

(i)must not be in the same room as the child when the child’s evidence is being taken; but

(ii)must be capable of seeing and hearing the child while the child is giving evidence; and

(b)subject to the judicial officer’s control, the child is to give his or her evidence-in-chief and be cross-examined and re-examined; and

(c)except as provided by this subdivision, the usual rules of evidence apply.

(5)The judicial officer may adjourn the hearing from time to time until the taking and videorecording of the child’s evidence is complete.

21AMUse of prerecorded evidence

(1)The affected child’s evidence contained in a videorecording made under this subdivision for a proceeding, or in a lawfully edited copy of the videorecording—

(a)is as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court; and

(b)is, unless the relevant court otherwise orders, admissible in—

(i)any rehearing or retrial of, or appeal from, the proceeding; or

(ii)another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or

(iii)a civil proceeding arising from the commission of the relevant offence.

(2)The admissibility of the evidence for a proceeding is not affected only because the child turns 18 before the evidence is presented at the proceeding.

(3)A reference in subsection (1) to a videorecording made under this subdivision for a proceeding includes a reference to a copy of the videorecording on a separate data storage medium if—

(a)the videorecording is a digital recording; and

(b)the copy of the videorecording on the separate data storage medium has been made by—

(i)the principal registrar of a court; or

(ii)a person authorised by the principal registrar of a court to copy the videorecording onto the separate data storage medium.

21ANGiving of further evidence

(1)This section applies if the affected child has given evidence under this subdivision for a proceeding and has been excused from further attendance as a witness at the proceeding.

(2)A party may apply to the court for an order that the child—

(a)give further evidence under this subdivision at another preliminary hearing; or

(b)attend at the proceeding to give further evidence.

(3)The court must not make the order unless satisfied that—

(a)if the child were giving evidence before a court in the ordinary way, the child could be recalled to give further evidence; and

(b)it would be in the interests of justice to make the order.

(4)The court must not make an order that the child attend at the proceeding to give further evidence unless satisfied it is not possible or not practical for the child to give the further evidence at another preliminary hearing.

21AOCourt order that evidence not to be taken and recorded under this sdiv

(1)This section applies if an affected child is to give evidence in a criminal proceeding, other than a committal proceeding, for a relevant offence.

(2)A party may apply to the court for an order that the child’s evidence not be taken and videorecorded under this subdivision.

(3)The court may make the order for good reason, having regard to the child’s wishes and the purposes of this division.

Example—

If a courtroom or other place with facilities to take and videorecord the affected child’s evidence is not likely to be available within a reasonable time, the court may decide the child’s interests are better served by dealing with the proceeding quickly rather than waiting for a courtroom or other place with the necessary facilities to become available.

Subdivision 4 Taking of affected child’s evidence using audio visual link or screen

21APApplication of sdiv 4

(1)This subdivision applies to taking an affected child’s evidence—

(a)for a summary trial for a relevant offence, if the evidence is not taken under subdivision 3 ; or

(b)for a trial on indictment for a relevant offence, if the evidence is not taken under subdivision 3 ; or

(c)for a committal proceeding for a relevant offence, if a magistrate or justices give a direction as mentioned in section 21AG (7)(b) that the child’s evidence is to be taken under this subdivision; or

(d)for summary trial, trial on indictment or committal proceeding for a relevant offence, if the child is ordered under section 21AN to attend at the proceeding to give further evidence; or

(e)for a civil proceeding arising from the commission of a relevant offence.

(2)Subsection (1) applies to a proceeding whether or not the proceeding also relates to offences other than the relevant offence.

21AQAudio visual links or screening arrangements must be used

(1)This section—

(a)applies subject to any order under section 21AR ; and

(b)has effect despite the Criminal Code , section 617 .

(2)If there is an audio visual link within the court precincts, the judicial officer presiding at the proceeding for the giving of evidence by the affected child must direct that—

(a)the child give evidence outside the courtroom and the evidence be transmitted to the courtroom by means of the audio visual link; or

(b)while the child is giving evidence, the defendant be held in a room apart from the courtroom and the evidence be transmitted to that room by means of the audio visual link.

(3)It is not necessary that the place outside the courtroom at which the child gives evidence under subsection (2)(a) be within the court precincts.

(4)If a direction is given under subsection (2)(a) or (b) and the audio visual link enables videorecording, the child’s evidence must be videorecorded.

(5)If a direction can not be given under subsection (2)(a) or (b), a screen, one-way glass or other thing must be so placed in relation to the child while he or she is giving evidence that the child can not see the defendant.

(6)A videorecording of the child’s evidence made under this section, or a lawfully edited copy of the videorecording, is, unless the relevant court otherwise orders, admissible in—

(a)any rehearing or retrial of, or appeal from, the proceeding; or

(b)another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or

(c)a civil proceeding arising from the commission of the relevant offence.

(7)A reference in subsection (6) to a videorecording made under this section includes a reference to a copy of the videorecording on a separate data storage medium if—

(a)the videorecording is a digital recording; and

(b)the copy of the videorecording on the separate data storage medium has been made by—

(i)the principal registrar of a court; or

(ii)a person authorised by the principal registrar of a court to copy the videorecording onto the separate data storage medium.

21ARCourt may order that s 21AQ does not apply

(1)This section applies if—

(a)a relevant proceeding has been started in a court; and

(b)an affected child is to give evidence in the proceeding.

(2)The party who is to call the child as a witness may apply to the presiding judicial officer for an order that section 21AQ is not to apply to the child.

(3)The judicial officer may grant the application only if the judicial officer is satisfied the child is able and wishes to give evidence in the defendant’s presence without using an audio visual link or a screen.

Subdivision 5 General

21ASProsecutor or applicant to advise that an affected child is to give evidence

(1)The prosecutor or applicant in a relevant proceeding must inform the court, before the proceeding starts, that an affected child may give evidence in the proceeding.

(2)For a trial on indictment, the prosecutor must inform the court at the time the indictment is presented.

(3)A failure to comply with subsection (1) or (2) does not prevent an affected child’s evidence being taken or videorecorded under this division or affect the admissibility of the evidence.

21ATIdentification of persons or things by affected child

(1)This section applies if an affected child is required to identify a person, including the defendant, or thing when the child is giving evidence.

(2)The court may make the orders it considers appropriate to ensure that the identification is carried out in a way that limits the distress or trauma that might be suffered by the child when making the identification.

Note—

See section 9E for the general principles to be applied when dealing with a child witness.

(3)The court must also decide at what point during the giving of the child’s evidence the identification is to be made.

(4)If an affected child is required to be in the defendant’s presence for the purposes of identification, the child should not be required to be in the defendant’s presence for the identification for any longer than is necessary.

21AUExclusion of public

(1)This section applies if—

(a)an affected child is to give evidence under subdivision 3 or 4 in a relevant proceeding; or

(b)the evidence of an affected child contained in either of the following is to be presented at a relevant proceeding—

(i)a videorecording made under subdivision 3 or 4, or a lawfully edited copy of the videorecording;

(ii)the usable soundtrack of a videorecording, or a lawfully edited copy of a videorecording, mentioned in subparagraph (i), or a lawfully edited copy of the usable soundtrack.

Note—

See part 2 , division 4AA in relation to the use of soundtracks from particular recordings.

(2)The court must make an order excluding from the room in which it is sitting all persons, other than essential persons, while—

(a)the child is giving the evidence mentioned in subsection (1)(a); or

(b)the evidence mentioned in subsection (1)(b) is being presented.

(3)However, subsection (2) does not apply if—

(a)the evidence to be given by the child, or presented at the proceeding, is other than in relation to an offence of a sexual nature; and

(b)the court is satisfied that the interests of justice require the evidence to be heard in open court.

Note—

See the Child Protection Act 1999 , section 193 for restrictions on disclosing identifying information about the affected child.

(4)In this section—

essential person, for a proceeding, means any of the following persons—

(a)a party to the proceeding and the party’s counsel;

(b)a Crown law officer or a person authorised by a Crown law officer;

(c)the prosecutor;

(d)a person whose presence is, in the court’s opinion, necessary or desirable for the proper conduct of the proceeding;

(e)a support person for the child under section 21AV ;

(f)a person who applies to the court to be present and whose presence, in the court’s opinion—

(i)would serve a proper interest of the person; and

(ii)would not be prejudicial to the child’s interests.

21AVAffected child entitled to support

(1)An affected child, while he or she is giving evidence in a relevant proceeding, is entitled to have near to him or her a person who may provide the child with support (a support person).

(2)A person may be the child’s support person only if the person is approved by the court on application by the party proposing to call the child.

(3)The support person must be permitted to be in close proximity to the child, and within the child’s sight, while the child is giving evidence.

(4)An affected child may, with the agreement of the court, waive the entitlement to a support person under subsection (1).

(5)The court must not agree to the waiver if the court considers the waiver is not in the child’s best interests.

21AWInstructions to be given to jury

(1)This section applies to a proceeding on indictment if any of the following measures is taken—

(a)an affected child’s evidence is taken in a way provided for under subdivision 3 or 4;

(b)a person is excluded under section 21AU while an affected child gives evidence or a videorecording, or usable soundtrack of a videorecording, containing the evidence of an affected child is presented;

(c)an affected child has a support person under section 21AV while the child gives evidence.

(2)The judicial officer presiding at the proceeding must instruct the jury that—

(a)the measure is a routine practice of the court and that they should not draw any inference as to the defendant’s guilt from it; and

(b)the probative value of the evidence is not increased or decreased because of the measure; and

(c)the evidence is not to be given any greater or lesser weight because of the measure.

21AXOrders, directions and rulings concerning affected child witnesses

(1)The court may make any orders or give any directions or rulings it considers appropriate for this division on the court’s own initiative or on an application made to the court by a party to the proceeding.

(2)Subsection (1) does not limit the Criminal Code , section 590AA or the Justices Act 1886 , section 83A .

Division 4AA Use of soundtracks from particular videorecordings

21AXA Definition for division

In this division—

relevant witness see section 21AXC (1)(a).

21AXB Meaning of usable soundtrack

A videorecording has a usable soundtrack if sound can be produced from the accompanying soundtrack of the videorecording, even if moving images can not be produced from the videorecording.

21AXC Court may make order for presentation of usable soundtrack

(1)This section applies if—

(a)a videorecording has been made—

(i)under section 21A of the evidence of a special witness (a relevant witness); or

(ii)under division 4A , subdivision 3 or 4 of the evidence of an affected child (also a relevant witness); and

(b)the evidence of the relevant witness contained in the videorecording is admissible in a proceeding as mentioned in section 21A (6), 21AM or 21AQ(6); and

(c)moving images can not be produced from the videorecording or a lawfully edited copy of the videorecording; and

(d)the videorecording, or a lawfully edited copy of the videorecording, has a usable soundtrack.

(2)The court may order that the usable soundtrack of the videorecording of the evidence of the relevant witness, or of the lawfully edited copy of the videorecording, may be presented at the proceeding.

(3)The court may make an order under subsection (2)—

(a)on the court’s own initiative or on the application of a party to the proceeding; and

(b)only if the court is satisfied it would be in the interests of justice to make the order.

21AXD Use of usable soundtrack

(1)This section applies if the court makes an order under section 21AXC (2) that the usable soundtrack of either of the following may be presented at a proceeding—

(a)a videorecording of the evidence of a relevant witness made under section 21A or division 4A , subdivision 3 or 4;

(b)a lawfully edited copy of a videorecording mentioned in paragraph (a).

(2)If the relevant witness is a special witness, section 21A (6) applies as if the reference in the subsection to a videorecording made under that section were a reference to the usable soundtrack of the videorecording or of the lawfully edited copy of the videorecording.

(3)If the relevant witness is an affected child whose evidence has been taken under division 4A , subdivision 3 , section 21AM applies as if the reference in section 21AM (1) to a videorecording made under division 4A , subdivision 3 were a reference to the usable soundtrack of the videorecording or of the lawfully edited copy of the videorecording.

(4)If the relevant witness is an affected child whose evidence has been taken under division 4A , subdivision 4 , section 21AQ (6) applies as if the reference in the subsection to a videorecording of the child’s evidence made under that section were a reference to the usable soundtrack of the videorecording or of the lawfully edited copy of the videorecording.

Division 4B Dealings with, and destruction of, recordings

Subdivision 1 Preliminary

21AYDefinitions for div 4B

In this division—

authorised destruction day see section 21AZF (1).

minimum retention period see section 21AZE (4)(a).

presiding judicial officer, in relation to a recording, means the judicial officer presiding at—

(a)the proceeding in which the recording is made; or

(b)the proceeding in which the recording is presented or to be presented; or

(c)a hearing for giving a direction or ruling under the Criminal Code , section 590AA ; or

(d)a direction hearing under the Justices Act 1886 , section 83A .

recording means—

(a)a videorecording of a special witness’s evidence made under section 21A ; or

(b)a videorecording of an affected child’s evidence made under division 4A , subdivision 3 or 4; or

(c)a copy of a videorecording mentioned in paragraph (a) or (b); or

(d)the usable soundtrack of a videorecording mentioned in paragraph (a), (b) or (c).

Subdivision 2 Dealings with recordings

21AZApproval to edit or otherwise change a recording

(1)An original recording must not be edited or otherwise changed in any way.

(2)The presiding judicial officer may, on application, give approval for a copy of an original recording to be edited or changed in a stated way.

Example—

The presiding judicial officer may give approval for a copy of an original recording to be edited to omit certain inadmissible material.

21AZA Court to give directions about the use or safekeeping of a recording

(1)The presiding judicial officer may make any order the judicial officer considers appropriate about the use or safekeeping of a recording.

(2)Without limiting subsection (1), the presiding judicial officer may give directions, with or without conditions, as to—

(a)the persons, or classes of persons, who are authorised to have possession of a recording; and

(b)the giving up of possession of a recording.

(3)The presiding judicial officer must have regard to the following matters when deciding the persons, or classes of persons, who are authorised to have possession of a recording—

(a)the need for counsel involved in the proceeding to have access to the recording;

(b)the need to ensure that persons authorised to have possession of the recording are able to take appropriate measures to ensure there is no unauthorised access to the recording.

(4)In this section—

use, of a recording, includes copying of the recording.

21AZB Unauthorised possession of, or dealing with, recording

(1)A person commits an offence who, without authority—

(a)has a recording in his or her possession; or

(b)supplies, or offers to supply, a recording to any person; or

(c)plays, copies or erases a recording or permits a person to play, copy or erase a recording.

Maximum penalty—

(a)for an individual—100 penalty units or 2 years imprisonment; or

(b)for a corporation—1,000 penalty units.

(2)A person has authority for subsection (1) only if the person has the possession or does the thing mentioned in subsection (1)—

(a)in the case of a public official—for a purpose connected with the proceeding for which the recording was made or any rehearing or retrial of, or appeal from, the proceeding, or civil proceeding in which the recording may be presented in evidence; or

(b)in the case of the principal registrar of a court—as authorised under a practice direction made under section 21AZE or section 21AZG ; or

(c)in any case—as authorised by a judicial officer under section 21AZA .

(3)In this section—

erase includes destroy.

21AZC Publishing a recording prohibited

(1)A person must not publish all or part of a recording other than with the approval of the relevant court and in accordance with any condition attached to the court’s approval.

Maximum penalty—

(a)for an individual—100 penalty units or 2 years imprisonment; or

(b)for a corporation—1,000 penalty units.

(2)An approval under subsection (1) may be given only in exceptional circumstances.

(3)In subsection (1)—

publish means disseminate to the public by radio or television or otherwise by the transmission of light or sound.

relevant court means the court presiding at the proceeding or preliminary hearing at which the recording is made or the court of trial or appeal at which the recording is presented.

Subdivision 3 Destruction of recordings

21AZD Relationship with other Acts

This subdivision applies despite the provisions of any other Act to the contrary.

21AZE Making of practice directions authorising destruction

(1)The Chief Justice may make a practice direction authorising the principal registrar of the Supreme Court to destroy a recording held by or for the Supreme Court.

(2)The Chief Judge may make a practice direction authorising the principal registrar of the District Court to destroy a recording held by or for the District Court.

(3)The Chief Magistrate may make a practice direction authorising the principal registrar of Magistrates Courts to destroy a recording held by or for a Magistrates Court.

(4)A practice direction made under subsection (1), (2) or (3)—

(a)must state the period (the minimum retention period) during which a recording or class of recordings may not be destroyed under the practice direction; and

(b)may authorise the principal registrar of the court to destroy a recording only after—

(i)the minimum retention period stated for the recording has ended; and

(ii)if an order under section 21AZF has been made in relation to the recording—the authorised destruction day stated in the order has passed.

21AZF Court may make order about destruction

(1)The presiding judicial officer may make an order that a recording must not be destroyed before a stated day (the authorised destruction day).

(2)The authorised destruction day must be after the end of the minimum retention period for the recording.

21AZG Destruction of particular digital recordings

(1)The principal registrar of a court may destroy a recording held by the court if the recording—

(a)is a digital recording; and

(b)has been copied onto a separate data storage medium.

(2)Subsection (1) applies—

(a)even if a practice direction made under section 21AZE does not authorise the destruction of the recording; and

(b)despite any order made under section 21AZF in relation to the recording.

21AZH Delegation by principal registrar

(1)The principal registrar of a court may delegate to an appropriately qualified public service employee the principal registrar’s function under—

(a)a practice direction made under section 21AZE ; or

(b)section 21AZG .

(2)In this section—

function includes power.

Division 5 Witness identity protection

Subdivision 1 Preliminary

21BPurposes of div 5

The purposes of this division are—

(a)to facilitate, for law enforcement purposes, investigations in relation to criminal activity, including investigations extending beyond Queensland, by—

(i)providing for the protection of the identity of operatives; and

(ii)facilitating the recognition of witness identity protection certificates under corresponding laws; and

(b)to facilitate investigations by the CCC in relation to corruption by providing for the protection of the identity of operatives.

21CDefinitions for div 5

In this division—

assumed name, of an operative, see section 21G (1)(a)(i).

CCC means the Crime and Corruption Commission.

chief executive officer, of a law enforcement agency, means—

(a)for the CCC—the chairperson of the CCC; or

(b)for the police service—the commissioner of the police service.

conduct includes any act or omission.

convicted means found guilty, or having a plea of guilty accepted by a court, whether or not a conviction is recorded.

corresponding law means a law of another jurisdiction that is declared under a regulation to correspond to this division.

corresponding witness identity protection certificate means a certificate given under a corresponding law that corresponds to section 21F .

corruption see the Crime and Corruption Act 2001 , schedule 2 .

court name, for an operative in relation to a proceeding, means a name, other than the operative’s real name, or code used to identify the operative in the proceeding.

criminal activity means conduct that involves the commission of an offence by 1 or more persons.

investigation means an investigation in relation to—

(a)criminal activity, including an investigation extending beyond Queensland; or

(b)corruption.

jurisdiction means the Commonwealth or a State of the Commonwealth.

law enforcement agency means—

(a)the CCC; or

(b)the police service.

operative means a person who is or was—

(a)a covert operative under the Crime and Corruption Act 2001 , chapter 3 , part 6A ; or

(b)a participant in an authorised operation under the Police Powers and Responsibilities Act 2000 , chapter 11 ; or

(c)an authorised person under the Police Powers and Responsibilities Act 2000 , chapter 12 .

party, to a proceeding, means—

(a)for a criminal proceeding—the prosecutor and each accused person; or

(b)for a civil proceeding—each person who is a party to the proceeding; or

(c)for another proceeding—each person who has been given leave to appear in the proceeding.

relevant court, for a proceeding, means the entity before whom or which the proceeding is held or taken.

witness identity protection certificate means a certificate given under section 21F .

21DApplication of div 5 to lawyer of party to a proceeding

For this division—

(a)anything permitted to be done by a party to a proceeding may be done by the party’s lawyer; and

(b)any requirement to give something to, or notify, a party to a proceeding is satisfied by giving the thing to, or notifying, the party’s lawyer.

Subdivision 2 Witness identity protection certificates for operatives

21EApplication of sdiv 2

(1)This subdivision applies to a proceeding in which an operative is, or may be, required to give evidence obtained as an operative.

(2)To remove any doubt, it is declared that this subdivision does not affect the operation of the common law in relation to the protection of the identity of a person who is not an operative who gives or intends to give evidence in a proceeding.

21FGiving witness identity protection certificate

(1)The chief executive officer of a law enforcement agency may give a witness identity protection certificate for an operative of the agency in relation to a proceeding if—

(a)the operative is, or may be required, to give evidence in the proceeding; and

(b)the chief executive officer is satisfied on reasonable grounds that the disclosure in the proceeding of the operative’s identity or where the operative lives is likely to—

(i)endanger the safety of the operative or someone else; or

(ii)prejudice an investigation.

(2)The chief executive officer must make all reasonable enquiries to enable him or her to find out the information required to be included in the witness identity protection certificate under section 21G .

(3)A decision to give a witness identity protection certificate—

(a)is final; and

(b)can not be impeached for informality or want of form; and

(c)can not be appealed against, reviewed, called into question, quashed or invalidated in any court.

(4)Subsection (3) does not prevent a decision to give a witness identity protection certificate being called into question during a proceeding of a disciplinary nature against the person who made the decision.

21GForm of witness identity protection certificate

(1)A witness identity protection certificate for an operative of a law enforcement agency in relation to a proceeding must be in the approved form and state all of the following—

(a)if the operative—

(i)is known to a party to the proceeding or a party’s lawyer by a name other than the operative’s real name—that name (the assumed name); or

(ii)is not known to any party to the proceeding or any party’s lawyer by a name—the operative’s court name for the proceeding;

(b)the period the operative was involved in the investigation to which the proceeding relates;

(c)the name of the agency;

(d)the date of the certificate;

(e)a general description of the reasons for giving the certificate;

(f)whether the operative has been convicted of an offence, in Queensland or elsewhere, and, if so, particulars of each offence;

(g)whether a charge against the operative for an offence is outstanding, in Queensland or elsewhere, and, if so, particulars of each charge;

(h)if the operative is, or was, a law enforcement officer—

(i)whether the operative has been found guilty of professional misconduct and, if so, particulars of each finding; and

(ii)whether any allegation of professional misconduct against the operative is outstanding and, if so, particulars of each allegation;

(i)whether, to the knowledge of the person giving the certificate, a court has made any adverse comment about the operative’s credibility and, if so, particulars of the comment;

(j)whether, to the knowledge of the person giving the certificate, the operative has made a false representation when the truth was required and, if so, particulars of the representation;

(k)if there is anything else known to the person giving the certificate that may be relevant to the operative’s credibility—particulars of the thing.

(2)A witness identity protection certificate for an operative must not contain information that may allow the operative’s identity, or where the operative lives, to be revealed.

(3)For this section—

(a)a charge against a person for an offence is outstanding until the charge is finally dealt with in any of the following ways—

(i)the charge is withdrawn;

(ii)the charge is dismissed by a court;

(iii)the person is discharged by a court;

(iv)the person is acquitted or convicted of the offence by a court; and

(b)an allegation of professional misconduct against a person is outstanding if the allegation has not been finally dealt with.

(4)The Criminal Law (Rehabilitation of Offenders) Act 1986 does not apply to the disclosure of information under subsection (1)(f) or (g).

(5)In this section—

charge, for an offence, means a charge in any form, including, for example, the following—

(a)a charge on an arrest;

(b)a notice to appear served under the Police Powers and Responsibilities Act 2000 , section 382 ;

(c)a complaint under the Justices Act 1886 ;

(d)a charge by a court under the Justices Act 1886 , section 42 (1A) , or another provision of an Act;

(e)an indictment.

false representation does not include a representation made under—

(a)an authority, or a corresponding authority, under the Police Powers and Responsibilities Act 2000 , chapter 11 or 12; or

(b)an approval under the Crime and Corruption Act 2001 , chapter 3 , part 6A .

law enforcement officer means—

(a)a commission officer under the Crime and Corruption Act 2001 ; or

(b)a police officer.

professional misconduct means—

(a)corruption under the Crime and Corruption Act 2001 ; or

(b)misconduct or a breach of discipline under—

(i)the Police Service Administration Act 1990 ; or

(ii)a law of another jurisdiction, or a foreign country, that corresponds to the Police Service Administration Act 1990 .

21HFiling and notification

(1)If the chief executive officer of a law enforcement agency gives a witness identity protection certificate for an operative in relation to a proceeding, the agency must—

(a)file the certificate with the relevant court for the proceeding before the operative gives evidence in the proceeding; and

(b)if the agency is the police service—give to the chairperson of the CCC a copy of the certificate and notice of the date it was filed.

(2)Also, the law enforcement agency must give a copy of the witness identity protection certificate to each party to the proceeding at least 14 days, or the shorter period agreed to by a party, before the day the operative is to give evidence.

(3)The relevant court may order the law enforcement agency to give a copy of the witness identity protection certificate to someone else stated in the order.

21IEffect of witness identity protection certificate

(1)This section applies if—

(a)a witness identity protection certificate for an operative in relation to a proceeding is filed under section 21H (1)(a); and

(b)either—

(i)a copy of the certificate is given to each party under section 21H (2) and to each person, if any, stated in an order under section 21H (3) for the certificate; or

(ii)the relevant court for the proceeding gives leave for this section to apply despite noncompliance with section 21H (2) or (3).

(2)If this section applies—

(a)the operative may give evidence in the proceeding under the assumed name, or court name, stated in the certificate; and

(b)subject to section 21K —

(i)a question must not be asked of a witness, including the operative, that may lead to the disclosure of the operative’s identity or where the operative lives; and

(ii)a witness, including the operative, can not be required to, and must not, answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives; and

(iii)a person involved in the proceeding must not make a statement that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives.

(3)For this section, a person involved in a proceeding includes the following—

(a)the relevant court;

(b)a party to the proceeding;

(c)a person given leave to be heard or make submissions in the proceeding;

(d)a lawyer representing a person mentioned in paragraph (b) or (c) or a lawyer assisting the court in the proceeding;

(e)any other officer of the court or person assisting the court in the proceeding;

(f)a person acting in the execution of any process or the enforcement of any order in the proceeding.

21JOrders to protect operative’s identity etc.

(1)The court with which a witness identity protection certificate is filed may make any order it considers necessary or desirable—

(a)to protect the identity of the operative for whom the certificate is given; or

(b)to prevent the disclosure of where the operative lives.

Examples of orders—

•an order prohibiting sketching of the operative

•an order that the operative give evidence in the absence of the public

(2)A person commits an offence if—

(a)the person knows that, or is reckless as to whether, an order has been made under subsection (1); and

(b)the person intentionally, knowingly or recklessly contravenes the order.

Maximum penalty—2 years imprisonment.

(3)Subsection (2) does not limit the court’s power to punish for contempt.

21KDisclosure of operative’s identity etc. despite certificate

(1)This section applies if a witness identity protection certificate for an operative in relation to a proceeding is filed with a court.

(2)A party to the proceeding, or a lawyer assisting the court in the proceeding, may apply to the court—

(a)for leave—

(i)to ask a question of a witness, including the operative, that may lead to the disclosure of the operative’s identity or where the operative lives; or

(ii)for a person involved in the proceeding to make a statement that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives; or

(b)for an order requiring a witness, including the operative, to answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives.

(3)The court may—

(a)give leave for the party or lawyer to do anything mentioned in subsection (2)(a); or

(b)make an order requiring a witness to do anything mentioned in subsection (2)(b).

(4)However, the court must not give leave or make an order unless satisfied about each of the following—

(a)there is evidence that, if accepted, would substantially call into question the operative’s credibility;

(b)it would be impractical to test properly the credibility of the operative without allowing the risk of disclosure of, or disclosing, the operative’s identity or where the operative lives;

(c)it is in the interests of justice for the operative’s credibility to be able to be tested.

(5)If there is a jury in the proceeding, the application must be heard in the absence of the jury.

(6)Unless the court considers that the interests of justice require otherwise, the court must be closed when—

(a)the application is made; and

(b)if leave is given or an order is made—the question is asked and answered, the evidence is given, the information is provided or the statement is made.

(7)The court must make an order suppressing the publication of anything said when—

(a)the application is made; and

(b)if leave is given or an order is made—the question is asked and answered, the evidence is given, the information is provided or the statement is made.

(8)Nothing in subsection (7) prevents the taking of a transcript of court proceedings, but the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.

(9)The court may make any other order it considers appropriate to protect the operative’s identity or to prevent the disclosure of where the operative lives.

(10)A person commits an offence if—

(a)the person knows that, or is reckless as to whether, an order has been made under subsection (7), (8) or (9); and

(b)the person intentionally, knowingly or recklessly contravenes the order.

Maximum penalty—2 years imprisonment.

(11)Subsection (10) does not limit the court’s power to punish for contempt.

21KADirections to jury

(1)This section applies if—

(a)a witness identity protection certificate for an operative in relation to a proceeding is filed with a court; and

(b)there is a jury in the proceeding; and

(c)the operative gives evidence.

(2)The court must, unless it considers it inappropriate, direct the jury not to give the operative’s evidence any more or less weight, or draw any adverse inferences against the defendant or another party to the proceeding, because—

(a)there is a witness identity protection certificate for the operative; or

(b)the court has made an order under section 21J or section 21K (7), (8) or (9).

21KBWitness identity protection certificate—cancellation

(1)This section applies if the chief executive officer of a law enforcement agency gives a witness identity protection certificate for an operative of the agency in relation to a proceeding.

(2)The chief executive officer must cancel the witness identity protection certificate if the chief executive officer considers that it is no longer necessary or appropriate to prevent the disclosure of the operative’s identity or where the operative lives.

(3)If the chief executive officer cancels the certificate after it has been filed with a court, the chief executive officer must immediately give written notice of the cancellation to the court and each party to the proceeding.

21KCPermission to give information disclosing operative’s identity etc.

(1)This section applies if the chief executive officer of a law enforcement agency gives a witness identity protection certificate for an operative of the agency in relation to a proceeding.

(2)The chief executive officer may, in writing, permit a person to give information, otherwise than in the proceeding, that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives if the chief executive officer considers it necessary or appropriate for the information to be given.

(3)The permission must state—

(a)the name of the person who may give the information; and

(b)the name of the person to whom the information may be given; and

(c)the information that may be given.

(4)The permission also may state how the information may be given.

21KDDisclosure offences

(1)A person commits an offence if—

(a)a witness identity protection certificate for an operative in relation to a proceeding has been given; and

(b)the person knows that, or is reckless as to whether, the certificate has been given; and

(c)the person intentionally, knowingly or recklessly does something (the disclosure action) that discloses, or is likely to lead to the disclosure of, the operative’s identity or where the operative lives; and

(d)the person knows that, or is reckless as to whether, the certificate had not been cancelled under section 21KB before the person does the disclosure action; and

(e)the person knows that, or is reckless as to whether, the disclosure action is not—

(i)authorised by leave or an order under section 21K ; or

(ii)permitted under section 21KC .

Maximum penalty—2 years imprisonment.

(2)A person commits a crime if the person commits an offence against subsection (1) in circumstances in which the person—

(a)intends to endanger the health or safety of any person or prejudice the effective conduct of an investigation; or

(b)knows that, or is reckless as to whether, the disclosure action—

(i)endangers or will endanger the health or safety of any person; or

(ii)prejudices or will prejudice the effective conduct of an investigation.

Maximum penalty—10 years imprisonment.

21KEReview of giving of witness identity protection certificate by police service

(1)This section applies to a witness identity protection certificate filed with a court by the police service.

(2)As soon as practicable after the end of the proceeding in which the witness identity protection certificate is filed by the police service, the commissioner of the police service must give the chairperson of the CCC notice of the date the proceeding to which the certificate relates ended.

(3)The chairperson of the CCC must—

(a)review the giving of the witness identity protection certificate as soon as practicable after the end of the proceeding to which the certificate relates and, in any event, within 3 months after the end of the year in which the certificate is filed; and

(b)consider whether, in the circumstances, it was appropriate to give the certificate; and

(c)if the chairperson considers it was inappropriate to give the certificate, notify whichever of the following is relevant of that fact as soon as practicable—

(i)each party to the proceeding;

(ii)a lawyer assisting the court.

(4)The commissioner of the police service, if asked by the chairperson of the CCC, must give the chairperson—

(a)all the information the police service used for deciding to give the witness identity protection certificate; and

(b)particulars relating to each person to whom a copy of the certificate was given under section 21H (2) or (3).

(5)The chairperson of the CCC must give a copy of any report on the review to the commissioner of the police service as soon as practicable after the report is completed.

21KFGiving information about witness identity protection certificates

(1)As soon as practicable after the end of each financial year, the chief executive officer of a law enforcement agency, other than the CCC, must give to the chairperson of the CCC a written report containing all of the following information for the financial year—

(a)the number of witness identity protection certificates given by the chief executive officer;

(b)the basis on which the chief executive officer was satisfied about the matters mentioned in section 21F (1)(b) for each certificate;

(c)if leave was given or an order made under section 21K in a proceeding in which a witness identity protection certificate for an operative of the agency was filed—details of the proceeding that relate to the leave or order;

(d)if a witness identity protection certificate was cancelled under section 21KB —the reasons for the cancellation;

(e)if a permission was given under section 21KC —the reasons for giving the permission;

(f)any other information relating to witness identity protection certificates and the administration of this division that the chairperson of the CCC considers appropriate.

(2)The report must not include information that discloses, or may lead to the disclosure of, an operative’s identity, or where the operative lives, unless the witness identity protection certificate for the operative has been cancelled.

21KGReport about witness identity protection certificates

(1)The CCC must include in its annual report for a financial year the following information about witness identity protection certificates given under this division in the financial year—

(a)the number of witness identity protection certificates given by each chief executive officer;

(b)the basis on which the chief executive officer was satisfied about the matters mentioned in section 21F (1)(b) for each certificate;

(c)if leave was given or an order made under section 21K in a proceeding in which a witness identity protection certificate was filed—details of the proceeding that relate to the leave or order;

(d)if a witness identity protection certificate was cancelled under section 21KB —the reasons for the cancellation;

(e)if a permission was given under section 21KC —the reasons for giving the permission;

(f)any other information relating to witness identity protection certificates and the administration of this division that the chairperson of the CCC considers appropriate.

(2)The annual report must not include information that discloses, or may lead to the disclosure of, an operative’s identity, or where the operative lives, unless the witness identity protection certificate for the operative has been cancelled.

(3)In this section—

annual report, of the CCC, means the report given by the CCC under the Financial Accountability Act 2009 , section 63 .

21KHRecognition of witness identity protection certificates under corresponding laws

Sections 21H to 21KA and section 21KD apply, with any necessary changes, to a corresponding witness identity protection certificate as if it were a witness identity protection certificate given under section 21F .

Subdivision 3 General

21KIDelegation

(1)Other than as provided by this section, and despite any other Act or law to the contrary, the powers of a chief executive officer under this division may not be delegated to any other person.

(2)A chief executive officer of a law enforcement agency may delegate any of the chief executive officer’s powers under this division, other than this power of delegation, to a senior officer of the agency.

(3)In this section—

senior officer, of a law enforcement agency, means—

(a)for the police service—a deputy commissioner of the police service; or

(b)for the CCC—a senior executive officer under the Crime and Corruption Act 2001 .

Division 6 Cross-examination of protected witnesses

21LApplication of division 6

This division applies only to criminal proceedings, other than summary proceedings under the Justices Act 1886 .

21MMeaning of protected witness

(1)For this division, each of the following persons is a protected witness—

(a)a witness under 16 years;

(b)a witness who is a person with an impairment of the mind;

(c)for a proceeding for a prescribed special offence, an alleged victim of the offence;

(d)for a proceeding for a prescribed offence, an alleged victim of the offence who the court considers would be likely to be disadvantaged as a witness, or to suffer severe emotional trauma, unless treated as a protected witness.

(2)It does not matter whether the proceeding mentioned in subsection (1)(c) or (d) relates also to another offence that is not a prescribed special offence or a prescribed offence.

(3)In this section—

alleged victim of an offence means a person, other than the person charged, who is—

(a)alleged to be a person in relation to whom the offence was committed; or

(b)alleged to have been subject to violence in relation to the offence.

prescribed offence means an offence defined in the Criminal Code , section 75, 122 , 127, 206, 308, 309, 323, 335, 338A, 339, 340, 346, 354, 354A, 355, 359, 413, 414, 415, 417A or 419.

prescribed special offence means an offence defined in the Criminal Code , section 210 , 213, 215, 216, 217, 218, 219, 221, 222, 227, 229B, 306, 313, 315, 315A, 316, 317, 320, 320A, 322, 323A, 323B, 359E, 363, 363A, 364, 409 or 412 or chapter 32.

violence means—

(a)an assault on, or injury to, a person; or

(b)a threat of an assault on, or an injury to, a person.

21NNo cross-examination of protected witness by person charged

A person charged may not cross-examine a protected witness in person.

21OProcedure for cross-examination of protected witness if person charged has no legal representative

(1)This section applies if—

(a)a person charged does not have a legal representative for a proceeding; and

(b)the court rules that a person is a protected witness for the proceeding.

(2)The court must advise the person charged present before the court that—

(a)the person charged may not cross-examine the protected witness in person; and

(b)the court will arrange for the person charged to be given free legal assistance by Legal Aid for the cross-examination unless the person charged—

(i)arranges for legal representation; or

(ii)does not want the protected witness to be cross-examined.

(3)The court must also require the person charged to advise the court by a particular date or time the court considers reasonable if the person charged—

(a)has arranged for a legal representative to act for the person charged for the proceeding; or

(b)has arranged for a legal representative to act for the person charged for cross-examination of the protected witness; or

(c)does not want the protected witness to be cross-examined.

(4)If, by the particular date or time, the court has not received advice from the person charged under subsection (3) that the person charged has arranged for a legal representative or does not want the protected witness cross-examined, the court must make an order that the person charged be given free legal assistance by Legal Aid for the cross-examination of the protected witness by a lawyer.

21PLegal assistance for cross-examination of protected witness

If a person charged is given legal assistance by Legal Aid because of an order under section 21O (4), the lawyer who cross-examines the protected witness for the person charged is the person’s legal representative for the purposes only of the cross-examination.

21QSatisfaction of Criminal Code , section 616

(1)This section applies if a person charged who does not have a legal representative for the cross-examination of a protected witness refuses legal assistance, available because of an order under section 21O (4), to cross-examine the witness.

(2)The Criminal Code , section 616 is taken to have been satisfied for the person charged in relation to cross-examination of the witness despite the person charged being unable to cross-examine the witness because of section 21N .

21RJury direction

(1)This section applies if there is a jury and a person charged—

(a)does not have a legal representative other than for the cross-examination of a protected witness; or

(b)does not have a legal representative for the cross-examination of a protected witness.

(2)The court must give the jury any warning the court considers necessary to ensure the person charged is not prejudiced by any inference that might be drawn from the fact the person charged has been prevented from cross-examining the protected witness in person.

21SOrders, directions and rulings concerning protected witnesses

The court may make any orders or give any directions or rulings it considers appropriate for the purposes of this division on the court’s own initiative or on an application made to the court by a party to the proceeding.

Part 3 Means of obtaining evidence

Division 1 Commissions, requests and orders to examine witnesses

22Commission, request or order to examine witnesses

(1)The Supreme Court or a judge thereof, on application made under the Rules of the Supreme Court, shall have the same powers to issue a commission, request or order to examine witnesses for the purpose of civil proceedings in any court other than the Supreme Court as it or the judge has for the purpose of civil proceedings in the Supreme Court.

(2)The Rules of the Supreme Court, with such adaptations as the circumstances may require, shall apply and extend to a commission, request or order to examine witnesses issued by authority of subsection (1) and to all proceedings taken thereunder as if the commission, request or order were issued by authority of those rules.

(3)Subject to all just exceptions, the depositions taken upon the examination of a witness before an examiner by virtue of this section certified under the hand of the examiner are admissible in evidence, without proof of the signature to such certificate, unless it is proved that the witness is at the time of the hearing at which the depositions are offered in evidence within a convenient distance of the place of the hearing and able to attend.

(4)The costs of proceedings taken by virtue of this section shall be costs in the cause, unless otherwise directed either by the judge issuing the commission, request or order or by the court for the purpose of whose proceedings the examination is conducted.

23Commission or order in criminal cases

(1)In any criminal proceeding, if any witness is out of the jurisdiction of the Supreme Court or more than 400km from the intended place of trial or is from age or infirmity unable to attend the trial or if the testimony of any witness is in danger of being lost by reason of the age or infirmity of the witness or by reason of the witness being about to depart out of the jurisdiction or to some place beyond the said distance of 400km, the Supreme Court or a judge thereof may, on the application or with the consent of the Attorney-General or the Crown prosecutor as well as the person charged, but not otherwise, order—

(a)that any such witness within the jurisdiction of the Supreme Court be examined on oath, either viva voce or upon interrogatories or otherwise, before a specified officer of the court or other specified person; or

(b)that a commission issue for the examination of such witness on oath, either viva voce or upon interrogatories or otherwise, at any place in or out of the jurisdiction.

(2)The Supreme Court or a judge thereof may, at the same time or subsequently, give all such directions touching the time, place and manner of such examination, as well within the jurisdiction as without, and all other matters and circumstances connected with such examination as appear reasonable and just.

(4)Any person authorised by any order or commission under this section to take the examination of any witness shall take such examination upon the oath of such witness and may administer the necessary oaths to such witness.

24Power of person appointed by foreign authority to take evidence and administer oaths

(1)Subject to subsections (2) to (4), where an authority desires to take or receive evidence in Queensland, that authority may appoint a person to take or receive evidence in Queensland and a person so appointed has power to take or receive evidence in Queensland for that authority and for that purpose to administer an oath.

(2)Where the authority is not a court or judge, a person so appointed has no power to take or receive evidence, or to administer an oath, in Queensland unless the person has first obtained the consent of the Attorney-General.

(3)This section does not authorise the taking or receiving of evidence by a person so appointed in or for use in criminal proceedings.

(4)In this section—

authority means any court, judge, or person who, or body which, is authorised under the law of a place outside Queensland to take or receive evidence on oath or under any other sanction authorised by law in that place.

Division 2 Summary procedure to obtain evidence for Queensland or other jurisdictions

25Definitions for div 2

In this division—

corresponding court—

(a)in relation to a court or person acting judicially in a prescribed country—means the court or person acting judicially in Queensland declared by regulation to be the court or person in Queensland that corresponds to that court or person in the prescribed country; and

(b)in relation to a court or person acting judicially in Queensland—means the court or person acting judicially in a prescribed country declared by regulation to be the court or person in a prescribed country that corresponds to that court or person in Queensland.

examiner means a judge, magistrate, clerk of a Magistrates Court or any duly qualified legal practitioner.

prescribed country means any State or Territory of the Commonwealth, New Zealand and any other State, Territory or country that is declared by regulation to be a prescribed country for the purposes of this division.

26Power of Queensland court to request corresponding court in a prescribed country to take evidence for use in Queensland court

(1)Where a court or person acting judicially in Queensland is authorised by or under any Act or law to authorise or order evidence to be taken otherwise than at the hearing of the legal proceedings in respect of which the evidence is required, that court or person may on the application of a person who desires to lead evidence, if it or the person is satisfied that it is necessary in the interests of justice, request a corresponding court to order the examination of a witness or the production of documents by a person or both such examination and production.

(2)Any deposition received from a corresponding court which purports to have been signed by the deponent and the examiner or to have been certified as a correct record by the examiner may, subject to all just exceptions, be put in as evidence at the hearing of the legal proceedings and any documents received from a corresponding court may, subject to all just exceptions, be put in at the hearing as if produced at the hearing by the person who produced the documents pursuant to the order of the corresponding court.

(3)A court or person acting judicially shall take judicial notice of the seal of a corresponding court and of the signature of any examiner appointed by a corresponding court.

27Power to take evidence on request from corresponding court of a prescribed country

(1)Where by or under any Act or law of a prescribed country provision is made for the evidence of any person that is required in connection with any legal proceedings to be taken otherwise than at the hearing of those proceedings by a court or person acting judicially, a court or person acting judicially in Queensland that is a corresponding court to a court or person acting judicially in the prescribed country before which or whom legal proceedings are being held may, upon receipt of a request in writing from that court or person in the prescribed country, make an order for the examination of a witness and the production of documents by a person or both for such examination or production before an examiner named in the order at a time and place specified in the order.

(2)The order shall require reasonable notice to be given by post to each party to the legal proceedings at the party’s address as shown in the request of the time when and place where the examination is to take place or the documents are to be produced.

28Summons of witnesses

Upon service on a person of an order requiring the person to attend for examination or to produce documents, together with the payment or tender of a reasonable sum for expenses, the person shall attend at the time and place appointed and shall have and be subject to the same rights and liabilities as if the person were summoned before the court or person by which or whom the order was made.

29Examination

(1)Subject to any directions contained in the order for examination—

(a)a person ordered to be examined before the examiner may be cross-examined and re-examined; and

(b)the examination, cross-examination and re-examination of persons before the examiner shall be conducted in like manner as they would have been conducted before the court or person acting judicially who made the order for the examination.

(2)The examiner may put any question to a person examined before the examiner as to the meaning of any answer made by that person or as to any matter arising in the course of the examination.

(3)An examiner shall have and may exercise such of the powers of the court or person acting judicially by whom the examiner was appointed as are necessary for the proper exercise of the examiner’s functions under this division and may administer oaths and adjourn the examination from time to time as the examiner thinks fit.

30Objections

(1)If a person being examined before an examiner objects to answering any question put to the person, or if objection is taken to any such question that question, the ground for the objection and the answer to any such question to which objection is taken shall be set out in the deposition of that person or any statement annexed thereto.

(2)The validity of the ground for objecting to answer any such question or for objecting to such question shall not be determined by the examiner but by the corresponding court at whose request the examination is being conducted.

31Depositions to be signed

(1)Where pursuant to an order for examination—

(a)a witness has given evidence to the examiner, the depositions of the witness shall be signed by the witness and by the examiner or where the witness refuses to sign or requires alterations that the examiner considers to be unjustified the depositions shall be signed by the examiner who shall certify that the depositions are a correct record and the reasons for them not being signed by the witness;

(b)documents have been produced to the examiner by a person not giving evidence, the examiner shall attach to such documents a certificate signed by the examiner stating the name of that person.

(2)All depositions and documents taken before or produced to the examiner pursuant to any such order shall be delivered by the examiner to the court or person by which or whom the order was made for transmission to the corresponding court.

32Power of Queensland court to transmit requests to other places

Where a court or person acting judicially in Queensland receives a request from a corresponding court for the examination of a witness or the production of documents by a person and it appears to the court or person acting judicially that the witness or person is not in Queensland and is not proceeding to Queensland but is in or proceeding to another country that is a prescribed country under the law of the country of the corresponding court the court—

(a)may transmit the request to a corresponding court in that other prescribed country together with such information as it or the person possesses concerning the whereabouts and intended movements of the person;

(b)shall give notice to the corresponding court from which it received the request that the documents have been so transmitted.

33Saving as to personal attendance

Nothing in this division limits or abridges the power of a court or a person acting judicially to require a witness to attend in person before the court or person.

Division 3 General procedure to obtain evidence for other jurisdictions

35Definitions for div 3

In this division—

civil proceedings, in relation to a requesting court, means proceedings in any civil or commercial matter.

overseas country means a country, or part of a country, outside the Commonwealth.

request includes any commission, order or other process issued by or on behalf of a requesting court.

requesting court has the meaning given to it in section 36 .

35AApplication of division to Crown

Nothing in this division shall be construed as enabling any court to make an order that is binding on the Crown or on any person in the person’s capacity as an officer or servant of the Crown.

36Application to Supreme Court to obtain evidence for civil proceedings in another jurisdiction

Where an application by way of originating summons is made to the Supreme Court or a judge thereof for an order for evidence to be obtained in the State, and the court or judge is satisfied—

(a)that the application is made in pursuance of a request issued by or on behalf of a court or tribunal (the requesting court) exercising jurisdiction in a State or Territory of the Commonwealth other than Queensland or in an overseas country; and

(b)that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated;

the court or judge shall have the powers conferred by the following provisions of this division.

37Power of Supreme Court to give effect to application to obtain evidence

(1)The Supreme Court or a judge thereof on an application under section 36 shall have power by order to make such provision for obtaining evidence in the State as may appear to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made, and any such order may require a person specified therein to take such steps as the court or judge may consider appropriate for that purpose.

(2)Without prejudice to the generality of subsection (1), an order under this section may make provision—

(a)for the examination of witnesses, either orally or in writing; and

(b)for the production of documents; and

(c)for the inspection, photographing, preservation, custody or detention of any property; and

(d)for the taking of samples of any property and the carrying out of any experiments on or with any property; and

(e)for the medical examination of any person.

(3)An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the Supreme Court (whether or not proceedings of the same description as those to which the application for the order relates), but this subsection shall not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath where this is asked for by the requesting court.

(4)An order under this section shall not require a person—

(a)to state what documents relevant to the proceedings to which the application for the order relates are or have been in the person’s possession or power; or

(b)to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in the person’s possession or power.

(5)A person who, by virtue of an order under this section, is required to attend at any place shall be entitled to the like conduct money and payment for expenses and loss of time as on attendance as a witness in civil proceedings before the Supreme Court.

(6)An order under this section may be enforced in the same manner as if it were an order made by the Supreme Court or a judge thereof in proceedings pending in the Supreme Court or before the judge.

38Privilege of witnesses

(1)A person shall not be compelled by virtue of an order under section 37 to give any evidence which the person could not be compelled to give—

(a)in civil proceedings in the State; or

(b)subject to subsection (2), in civil proceedings in the State or Territory of the Commonwealth or the overseas country in which the requesting court exercises jurisdiction.

(2)Subsection (1)(b) shall not apply unless the claim of the person in question to be exempt from giving the evidence is either—

(a)supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled); or

(b)conceded by the applicant for the order;

and where such a claim made by any person is not supported or conceded as aforesaid the person may (subject to the other provisions of this section) be required to give the evidence to which the claim relates but that evidence shall not be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim.

(3)In this section, references to giving evidence include references to answering any question and to producing any document and the reference in subsection (2) to the transmission of evidence given by a person shall be construed accordingly.

39Judicial proceedings for the purposes of the Criminal Code

Proceedings wherein a person gives or is required to give any testimony (either orally or in writing) pursuant to an order under section 37 shall be a judicial proceeding for the purposes of the Criminal Code , chapter 16 whether or not the testimony is given or required to be given on oath or under any other sanction authorised by law.

Part 3A Audio visual links and audio links

Division 1 Preliminary

39APurposes of pt 3A

The purposes of this part are—

(a)to provide for Queensland to participate in a substantially uniform interstate scheme for the taking or receiving of evidence, and the making or receiving of submissions, from or in participating States; and

(b)to facilitate the giving and receiving of evidence, and the making and receiving of submissions, in Queensland court proceedings, by audio visual link or audio link.

39BApplication of pt 3A

(1)This part applies to a proceeding whether commenced before or after the commencement of this part.

(2)This part does not limit any law of the State that makes provision for—

(a)the use of audio visual links or audio links; or

(b)the taking of evidence, or the making of submissions, in or outside the State for the purpose of a proceeding in the State.

(3)In particular, this part does not affect a prohibition under another Act on the making of an order about the use of an audio visual link or audio link without the consent of all parties to a proceeding.

(4)This part does not authorise a defendant in a criminal proceeding before a Queensland court to appear before, or give evidence or make a submission to the court by audio visual link or audio link unless expressly authorised by any of the following—

(a)the Criminal Code , section 597C (4);

(b)the District Court of Queensland Act 1967 , section 110C ;

(c)the Justices Act 1886 , section 178C ;

(d)the Penalties and Sentences Act 1992 , section 15A ;

(e)the Supreme Court of Queensland Act 1991 , section 80 ;

(f)the Youth Justice Act 1992 , section 53 or 159 .

39CDefinitions for pt 3A

In this part—

audio link means facilities, including telephone, that enable reasonably contemporaneous and continuous audio communication between persons at different places.

before, a court, includes in a court.

court location means the courtroom, or other place, where the court is sitting.

external location, for a court, means the location, external to the court location—

(a)in or outside Queensland or Australia from which evidence or a submission is being, is to be, or has been taken or made by audio visual link or audio link under this part; or

(b)for the application of this part under the Criminal Code , section 597C —at which an accused person is being, is to be, or has been arraigned; or

(c)for the application of this part under the Youth Justice Act 1992 , section 159 or the Penalties and Sentences Act 1992 , section 15A —at which an offender or a child is being, is to be, or has been sentenced.

participating State means another State in which provisions of an Act of that State in terms that substantially correspond to divisions 2 and 3 are in force.

Queensland court means—

(a)the Supreme Court, the District Court or a Magistrates Court; or

(b)the Coroners Court; or

(c)another court established under an Act; or

(d)another tribunal declared under a regulation to be a court for this part.

recognised court means a court or tribunal of a participating State that is authorised by the provisions of an Act of that State in terms substantially corresponding to divisions 2 and 3 to direct that evidence be taken or submissions be made by audio visual link or audio link from Queensland.

tribunal means a body or person that may take evidence on oath.

Division 2 Use of interstate audio visual links or audio links in proceedings before Queensland courts

39DApplication of div 2

This division applies to any proceeding, including a criminal proceeding, before a Queensland court.

39EState courts may take evidence and submissions from outside State

(1)The court may, on the court’s own initiative or on the application of a party to a proceeding before the court, direct that evidence be taken or submissions be made by audio visual link or audio link from a participating State.

Note—

See division 3A in relation to expert witnesses giving evidence by audio visual link or audio link.

(2)The court may exercise in the participating State, in connection with taking evidence or receiving submissions by audio visual link or audio link, any of its powers that the court may be permitted, under the law of the participating State, to exercise in the participating State.

39FLegal practitioners entitled to practise

A person who is entitled to practise as a legal practitioner in a participating State is entitled to practise as a barrister or solicitor or both in relation to the following—

(a)the examination-in-chief, cross-examination or re-examination of a witness in the participating State whose evidence is being given by audio visual link or audio link in a proceeding before the court;

(b)making of submissions by audio visual link or audio link from the participating State in a proceeding before the court.

Division 3 Use of interstate audio visual links or audio links in proceedings in participating States

39GApplication of div 3

This division applies to any proceeding, including a criminal proceeding, before a recognised court.

39HRecognised courts may take evidence or receive submissions from persons in Queensland

The court may, for a proceeding before it, take evidence or receive submissions, by audio visual link or audio link, from a person in Queensland.

39IPowers of recognised courts

(1)The court may, for the proceeding, exercise in Queensland, in connection with taking evidence or receiving submissions by audio visual link or audio link, any of its powers other than its powers—

(a)to punish for contempt; and

(b)to enforce or execute its judgments or process.

(2)The laws of the participating State, including rules of court, that apply to the proceeding in that State also apply to the practice and procedure of the court in taking evidence or receiving submissions by audio visual link or audio link from a person in Queensland.

(3)For the purposes of the court exercising its powers in Queensland, the external location in Queensland is taken to be part of the court location.

39JOrders made by recognised court

Without limiting section 39I , the court may, by order—

(a)direct that the proceeding, or a part of the proceeding, be conducted in private at the external location in Queensland; and

(b)require a person to leave the external location in Queensland; and

(c)prohibit or restrict the publication of evidence given in the proceeding or the name of a party to, or a witness in, the proceeding.

39KEnforcement of order

(1)An order under section 39J must be complied with.

(2)Subject to rules of court made under the Supreme Court of Queensland Act 1991 , the order may be enforced by the Supreme Court as if the order were an order of that court.

(3)Without limiting subsection (2), a person who contravenes the order—

(a)is taken to be in contempt of the Supreme Court; and

(b)is punishable accordingly;

unless the person establishes that the contravention should be excused.

39LPrivileges, protection and immunity of participants in proceedings before recognised court

(1)A judge or other person presiding at or otherwise taking part in a judicial capacity in the proceeding before the court has, in connection with evidence being taken or submissions being received by audio visual link or audio link from the external location in Queensland, the same privileges, protection and immunity as a Supreme Court judge.

(2)A person appearing as a legal practitioner in the proceeding before the court has, in connection with evidence being taken or submissions being received by audio visual link or audio link from the external location in Queensland, the same protection and immunity as a barrister appearing before the Supreme Court.

(3)A person at the external location in Queensland appearing as a witness in the proceeding before the court by audio visual link or audio link has the same protection and immunity as a witness in a proceeding before the Supreme Court.

39MRecognised court may administer oath in the State

(1)The court may administer an oath or affirmation in accordance with its practice and procedure for the purpose of obtaining the testimony of a person in Queensland by audio visual link or audio link in the proceeding.

(2)Evidence given on the oath or affirmation is taken to be given in a Queensland judicial proceeding for the purposes of Queensland law.

39NAssistance to recognised court

An officer of a Queensland court may, if asked by the recognised court, do any of the following things for the proceeding—

(a)attend at the external location in Queensland;

(b)take the action the recognised court directs to facilitate the proceeding;

(c)administer an oath or affirmation.

39OContempt of recognised court

A person must not, in connection with evidence or a submission that is to be, is being, or has been given or made at the external location in Queensland in the proceeding before the court, do any of the following things—

(a)assault, in Queensland—

(i)a witness in the proceeding; or

(ii)a person appearing in the proceeding as a legal practitioner; or

(iii)an officer of a Queensland court giving assistance under section 39N ;

(b)deliberately interrupt or obstruct the court;

(c)create or continue, or join in creating or continuing, a disturbance at the external location in Queensland;

(d)attempt to influence improperly anyone in connection with the proceeding;

(e)deliberately and without lawful excuse, disobey an order or direction given by the court to regulate conduct happening while evidence is being given or a submission is being made by audio visual link or audio link;

(f)do anything in connection with the proceeding that would be a contempt of court if the thing done were done in, or in relation to, a Queensland judicial proceeding.

Maximum penalty—imprisonment for 3 months.

39PDouble jeopardy

(1)This section applies to a person who does an act or makes an omission that is an offence both—

(a)under this part; and

(b)under a law of a participating State.

(2)The person must not be prosecuted or punished under this part for the offence if the person has been prosecuted or punished under the law of the participating State for the offence.

Division 3A Use of audio visual links or audio links for expert witnesses

39PAApplication of div 3A

This division applies to any proceeding, including a criminal proceeding, before a Queensland court.

39PBExpert witnesses to give evidence by audio visual link or audio link

(1)This section applies if a person is called to give evidence as an expert witness in the proceeding.

(2)Subject to subsection (3) and any rules of the court, the person is to give the evidence to the court by audio visual link or audio link.

(3)The court may, on its own initiative or on the application of a party to the proceeding, direct that the person is to give oral evidence to the court other than by audio visual link or audio link if the court is satisfied it is in the interests of justice to give the direction.

(4)In deciding whether it is in the interests of justice to give a direction under subsection (3), the court may have regard to the following matters—

(a)the nature and scope of the evidence the person is to give in the proceedings;

(b)whether the use of audio link or audio visual link is likely to affect the court’s or a jury’s ability to assess the credibility or reliability of the person or the person’s evidence;

(c)the availability of appropriate audio or audio visual facilities in the court to which the person is to give evidence;

(d)any submission made to the court by the person or any party to the proceedings about the way in which the person should give evidence.

(5)Subsection (4) does not limit the matters the court may have regard to in deciding whether it is in the interests of justice to make a direction under subsection (3).

(6)The court may, at any time, vary or revoke a direction made under this section on its own initiative or on the application of a party to the proceeding.

(7)The court must not give the person’s evidence any more or less weight, or draw any adverse inferences against a party to the proceeding, only because the person gave the evidence by audio visual link or audio link.

39PCDirection to jury if expert witness gives evidence by audio visual link or audio link

(1)This section applies if—

(a)a person gives evidence in the proceeding as an expert witness; and

(b)the evidence is given by audio visual link or audio link under section 39PB ; and

(c)there is a jury in the proceeding.

(2)The court must direct the jury not to give the person’s evidence any more or less weight, or draw any adverse inferences against a party to the proceeding, only because the person gave the evidence by audio visual link or audio link.

Division 4 General provisions about the use of audio visual links or audio links

39QApplication of div 4

(1)This division applies to any proceeding, including a criminal proceeding, before a Queensland court.

(2)This division does not limit, and is not limited by, division 2 , 3 or 3A.

39RQueensland courts may take evidence and submissions from external location

(1)Subject to any rules of the court, the court may, on the application of a party to the proceeding before the court, direct that a person appear before, or give evidence or make a submission to, the court by audio visual link or audio link from a location inside or outside Queensland, including a location outside Australia.

(2)The court may, at any time, vary or revoke a direction made under this section on its own initiative or on the application of a party to the proceeding.

Note—

See division 3A in relation to expert witnesses giving evidence by audio visual link or audio link.

39SFailure of the link

If an audio visual link or audio link fails in the proceeding, the court may adjourn the proceeding, or make another appropriate order, as if a person present at the external location were at the court location.

39TExpenses

The court may make the orders it considers just for payment of expenses incurred in connection with taking evidence or making submissions by audio visual link or audio link.

39UExternal location to be considered part of Queensland court location

(1)An external location in the proceeding before the court is taken to be part of the court location in the proceeding for all purposes relating to a Queensland law for the administration of justice.

(2)In this section—

a law for the administration of justice includes a law about any of the following—

(a)compulsory attendance at court;

(b)punishment for failing to attend at court;

(c)the presence of a person at court;

(d)evidence, including compellability to give evidence;

(e)perjury, contempt, procedure, privileges, protection or immunities.

law includes any written or unwritten law, and a rule, practice or procedure of the court.

39VWitness outside Queensland—when compellable

If the external location from which a witness giving evidence by audio visual link or audio link in the proceeding is outside Queensland, the witness is compellable to give evidence only to the extent the witness—

(a)would be compellable to give the evidence if present in Queensland; and

(b)would be compellable to give the evidence in court proceedings under the law of the place from which the evidence is given.

39WAdministration of oaths and affirmations

An oath or affirmation may be sworn for giving testimony by audio visual link or audio link—

(a)over the link in a way that is as near as practicable to the way the witness could be sworn at the court location; or

(b)by a person at the external location in accordance with the court’s direction.

39XTestimony from outside Australia other than on oath

(1)This section applies if the external location is in a country other than Australia and an oath is not allowed under the law of the country.

(2)The evidence may be given otherwise than on oath under a caution or admonition that would be accepted by a court in that country for the purpose of giving evidence in the court.

(3)The probative value of the evidence given under subsection (2) is not diminished merely because the evidence is not given on oath.

(4)A person giving the evidence under subsection (2) is liable to be convicted of perjury as if the evidence were given on oath.

39YPutting documents to a person at an external location

(1)If in the course of examination of a person by audio visual link or audio link it is necessary to put a document to the person, the court may permit the document to be put to the person—

(a)if the document is at the court location—by sending a copy of it to the external location in any way and the copy then put to the person; or

(b)if the document is at the external location—by putting it to the person and then sending it to the court location in any way.

(2)A document put to a person under subsection (1) is admissible as evidence without proof that the transmitted copy is a true copy of the relevant document.

39ZExtension of rule-making power

If there is a power under another Act to make rules for the court, the power includes a power to make rules, not inconsistent with this part, that are necessary or convenient for carrying out or giving effect to this part.

Part 4 Judicial notice of seals, signatures and legislative enactments

41Public Seal of the State

All courts shall take judicial notice of the impression of the Public Seal of the State without evidence of such seal having been impressed or any other evidence relating thereto.

42Signatures of holders of public offices etc. to be judicially noticed

(1)Judicial notice must be taken of—

(a)the signature of a person who is or has been the holder of a public office; and

(b)the fact that the person holds or has held the office.

(2)For subsection (1), the following offices are public offices—

(a)the office of Governor;

(b)the office of a Minister;

(c)the office of a judge, magistrate or warden;

(d)the office of an official of a court;

(e)the office of a justice of the peace or commissioner for declarations;

(f)another office of a public nature established under an Act;

(g)an office prescribed under an Act for this section.

(3)Schedule 1 provides examples of offices of a public nature established under an Act.

(4)This section is in addition to, and does not limit, the common law, another provision of this Act or a provision of another Act.

42ACertain seals to be judicially noticed etc.

(1)Judicial notice must be taken of the imprint of any seal of an office or entity established under an Act, and a document on which the imprint appears must be presumed to have been properly sealed unless the contrary is established.

(2)This section is in addition to, and does not limit, the common law, another provision of this Act or a provision of another Act.

43Acts and statutory instruments to be judicially noticed

Judicial notice must be taken of the following—

(a)every Act;

(b)every statutory instrument;

(c)the time when every Act or statutory instrument commenced, and every provision of every Act or statutory instrument commenced;

(d)when every Act was assented to;

(e)when and by whom every item of subordinate legislation was made, approved, confirmed or otherwise consented to;

(f)when and how every item of subordinate legislation was notified;

(g)when every item of subordinate legislation was laid before the Legislative Assembly;

(h)every official copy of Queensland legislation.

43AAdministrative arrangements to be judicially noticed

Judicial notice must be taken of the administrative arrangements set out in an order published in the gazette and purportedly made under the Constitution of Queensland 2001 , section 44 .

Part 5 Proof of documents and other matters

Division 1 Proof of official and judicial documents and matters

44Proof by purported certificate, document etc.

Where by a law in force in Queensland—

(a)a certificate; or

(b)an official or public document; or

(c)a document of a corporation; or

(d)a copy of, or extract from, a document;

is admissible in evidence for any purpose, a document purporting to be the certificate, document, copy or extract shall, unless the contrary intention appears, be admissible in evidence to the same extent and for the same purpose provided that it purports to be authenticated in the manner (if any) directed by that law.

45Proof of gazette

The production of a document purporting to be the gazette shall be evidence that the document is the gazette and was published on the day on which it bears date.

46Proof regarding government printer, parliamentary counsel and Legislative Assembly

(1)The production of a document purporting to be printed by the government printer or by the authority of the Government of the State is evidence the document was printed by the government printer or by that authority.

(2)The production of a document purporting to be authorised by the parliamentary counsel is evidence that the document was authorised by the parliamentary counsel.

(3)The production of a document purporting to be published under the authority of the Legislative Assembly is evidence the document was published under that authority.

46APresumption of accuracy of official copy of Queensland legislation

(1)An official copy of Queensland legislation is, in the absence of evidence to the contrary, taken to correctly show—

(a)for Queensland legislation other than a reprint—the legislation as at the relevant date; or

(b)for a reprint—the law in force included in the reprint as at the relevant date.

(2)The date of assent appearing in an official copy of an Act or a reprint of an Act is, in the absence of evidence to the contrary, evidence of the date of assent.

(3)A statement of any of the following matters appearing in an official copy of subordinate legislation or a reprint of subordinate legislation is, in the absence of evidence to the contrary, evidence of the matter—

(a)when and by whom the subordinate legislation was made;

(b)when and how the subordinate legislation was notified;

(c)when the subordinate legislation was laid before the Legislative Assembly;

(d)that the subordinate legislation was disallowed and the date of the disallowance.

(4)A document purporting to be a copy of, or extract from, an official copy of Queensland legislation is, in the absence of evidence to the contrary, taken to be a correct copy of, or extract from, the official copy.

(5)For an official copy of a reprint authorised under the Legislative Standards Act 1992 , section 10A , extract from the copy, for subsection (4), includes a document containing—

(a)1 or more pages of the copy; and

(b)a page of the copy containing the note mentioned in section 10A(2) of that Act.

(6)In this section—

made, for subordinate legislation, means made, approved, confirmed or otherwise consented to.

relevant date, for an official copy of Queensland legislation, means—

(a)for an Act as passed, or an agreement or other instrument in or attached to the Act —the day the Act was assented to; or

(b)for subordinate legislation as made, or an agreement or other instrument in or attached to the subordinate legislation—the day the subordinate legislation was made; or

(c)for an agreement or other instrument not mentioned in paragraph (a) or (b) that has not been amended—the day the agreement or other instrument came into the same force of law as an Act or subordinate legislation; or

(d)for a reprint—the day or days, however described or identified in the official copy, for which the law included in the copy is or was the law in force.

46BCourt or tribunal may inform itself about Act or statutory instrument

(1)A court or tribunal may inform itself about an Act or statutory instrument in any way it considers appropriate.

Examples of ways that may be appropriate—

1using an electronic version of an Act as available on the internet or on a CD–ROM other than a reprint of the Act authorised under the Legislative Standards Act 1992 , section 10A

2using a printed copy of an Act in a publication other than a reprint of the Act authorised under the Legislative Standards Act 1992 , section 10A

(2)However, the court or tribunal must consider whether the document or source it intends to consult appears to be a reliable source of information.

(3)Subsection (1) does not limit any law providing for a way in which a court or tribunal may be informed about an Act or statutory instrument, including any other provision of this Act or the Reprints Act 1992 .

47Proof of Legislative Assembly’s proceedings or legislative material

(1)A document purporting to be a copy of an official record of proceedings in the Legislative Assembly printed by the government printer or published under the authority of the Legislative Assembly is, on its production, evidence of the record.

Note—

See also the Parliament of Queensland Act 2001 , section 57 .

(2)A document purporting to be a copy of legislative material printed by the government printer, authorised by the parliamentary counsel or published under the authority of the Legislative Assembly is, on its production, evidence of the legislative material.

(3)In this section—

legislative material includes—

(a)a Bill, an amendment of a Bill or an explanatory note for a Bill, introduced into, moved in, tabled in, or circulated to members of, the Legislative Assembly; or

(b)an explanatory note or regulatory impact statement for subordinate legislation.

regulatory impact statement means a regulatory impact statement prepared under—

(a)the Statutory Instruments Act 1992 , part 5 as in force from time to time before its repeal by the Fiscal Repair Amendment Act 2012 ; or

(b)guidelines, for a regulatory impact statement system, approved by the Treasurer.

48Proof of particular instruments

(1)This section applies to an instrument made—

(a)by the Governor or Governor in Council; or

(b)by or under the authority of a Minister or of a public entity.

(2)Evidence of the instrument may be given by producing any of the following documents—

(a)the gazette purporting to contain it;

(b)a document purporting to be a copy of it and purporting to be printed by or under the authority of the government printer;

(c)for an instrument made by the Governor or Governor in Council—a copy or extract purporting to be certified as a true copy or extract by the clerk of the Executive Council;

(d)for an instrument made by or under the authority of a Minister—a copy or extract purporting to be certified as a true copy or extract by a Minister.

(3)If the document states any of the following matters about the instrument, the document is evidence of the matter—

(a)who made it, or under whose authority it was made;

(b)when it was made;

(c)how it, or notice of its making, was published, and when;

(d)when it was tabled in the Legislative Assembly.

(4)In this section—

made means made, approved, confirmed or otherwise consented to.

public entity means an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or under State authorisation for a public or State purpose.

49Proof of standard rules, codes and specifications

If an Act or statutory instrument adopts by way of reference, wholly or in part, any of the standard rules, codes or specifications of the bodies known as the Standards Association of Australia, Standards Australia, the British Standards Institution or other body expressly or impliedly identified in the Act , evidence of any such standard rule, code or specification may be given—

(a)by the production of a document purporting to be a copy of it and purporting to be published by or on behalf of the Standards Association of Australia, Standards Australia, the British Standards Institution or other body concerned; or

(b)by the production of a document purporting to be a copy of it and purporting to be printed by the government printer or by the authority of the Government of the State.

50Proof of act done by Governor or Minister

Where by any law at any time in force the Governor or the Governor in Council or a Minister is authorised or empowered to do any act, production of the gazette purporting to contain a copy or notification of any such act shall be evidence of such act having been duly done.

51Proof of public documents

Where a document is of such a public nature as to be admissible in evidence on its mere production from proper custody, a copy of or extract from the document shall be admissible in evidence if—

(a)it is proved to be an examined copy or extract; or

(b)it purports to be certified as a true copy or extract under the hand of a person described in the certificate as the person to whose custody the original is entrusted.

52Proof of registers of British vessels etc.

(1)Every register of a vessel kept under any of the Act s relating to the registry of British vessels may be proved by the production of—

(a)the original; or

(b)an examined copy of the original; or

(c)a copy purporting to be certified as a true copy under the hand of the person having the charge of the original.

(2)A person having the charge of the original of such register is required to furnish such certified copy to any person applying at a reasonable time for the same upon payment of such fee (if any) as is prescribed by law.

(3)Every—

(a)such register or such copy of a register; and

(b)certificate of registry granted under any of the said Acts relating to the registry of British vessels and purporting to be signed as required by law;

shall be admissible in evidence of—

(c)all the matters contained or recited in such register when the register or such copy of the register is produced; and

(d)all the matters contained recited in or endorsed on such certificate of registry when the said certificate is produced.

53Proof of judicial proceedings

(1)Where it is sought to prove any of the following matters—

(a)a judgment, decree, rule, conviction, acquittal, sentence or other order, process, act or decision of any court;

(b)an affidavit, pleading, will, codicil, indictment or other legal document filed, deposited or presented in any court;

(c)the pendency or existence at any time before any court of any proceeding;

evidence of such matter and, as the case may be, of any particulars relating thereto may be given by the production of—

(d)the original of the order, process, act, decision or document; or

(e)a document proved to be an examined copy of the order, process, act, decision or document; or

(f)a document purporting to be a copy of the order, process, act, decision or document and to be sealed with the seal of the court; or

(g)a certificate showing such matter and such particulars and purporting to be under the hand of—

(i)a registrar of the court; or

(ii)a person having the custody of the records or documents of the court; or

(iii)any other proper officer of the court; or

(iv)a deputy of such registrar, person or officer.

(2)In this section—

court means any court of Queensland, of the Commonwealth or of any other State or Territory.

54Proof of identity of a person convicted

(1)If a person (the alleged offender) is alleged to have been convicted in Queensland, the Commonwealth or another State or Territory of an offence, an affidavit that complies with subsection (2) is proof, unless the contrary is proved, the alleged offender—

(a)has been convicted of an offence stated in the affidavit under subsection (2)(c)(iii); and

(b)is the person who is referred to as having been convicted in a certificate of conviction exhibited to the affidavit under subsection (2)(b).

(2)The affidavit must—

(a)purport to be made by an expert; and

(b)exhibit a certificate of conviction for the offence the alleged offender is alleged to have been convicted of; and

(c)state the following—

(i)the expert’s field of expertise;

(ii)the process and evidence used by the expert to determine the identity of the alleged offender based on available identifying records;

(iii)any offence that, based on the results of the expert’s determination mentioned in subparagraph (ii), a police record states the alleged offender has been convicted of;

(iv)that, based on the results of the expert’s determination mentioned in subparagraph (ii), and the police record mentioned in subparagraph (iii), the expert believes that the alleged offender is the person who is referred to as having been convicted in the certificate of conviction exhibited to the affidavit under subsection (2)(b).

(3)If a party to a proceeding intends to rely on the affidavit (the relying party), the party must give a copy of the affidavit to each other party to the proceeding—

(a)at least 10 business days before the hearing day; or

(b)if, in the particular circumstances, the court considers it just to shorten the period mentioned in paragraph (a)—by a later date allowed by the court.

(4)If a party to the proceeding, other than the relying party, intends to challenge a matter stated in the affidavit, the party must give the relying party notice in writing of the matter to be challenged—

(a)at least 3 business days before the hearing day; or

(b)if subsection (3)(b) applies and, in the particular circumstances, the court considers it just to shorten the period mentioned in paragraph (a)—by a later date allowed by the court.

(5)If a party to the proceeding (the notifying party) gives the relying party a notice under subsection (4), then, unless the notifying party otherwise agrees, the relying party must ensure that the expert is available at the hearing of the proceeding for cross-examination on the affidavit.

(6)In this section—

certificate of conviction, for an offence, means a document purporting to be the certificate of conviction, or a certified copy of the certificate of conviction, for the offence.

corresponding law, in relation to a provision of a Queensland law, means a law of the Commonwealth or another State or Territory corresponding, or substantially corresponding, to the provision.

DNA sample see the Police Powers and Responsibilities Act 2000 , schedule 6 .

expert means a person who is qualified to give opinion evidence as an expert witness in relation to the identity of a person based on the type of identifying records used by the expert to determine the identity of the alleged offender under subsection (2)(c)(ii).

hearing day means the day fixed for the start of the hearing of the proceeding.

identifying particulars see the Police Powers and Responsibilities Act 2000 , schedule 6 .

identifying records, of a person, means—

(a)any identifying particulars of the person taken under the Police Powers and Responsibilities Act 2000 , chapter 17 , part 4 or a corresponding law; or

(b)the results of a DNA analysis performed, under the Police Powers and Responsibilities Act 2000 , chapter 17 , part 5 or a corresponding law, on a DNA sample taken from the person under that part or a corresponding law; or

(c)a DNA sample taken from the person under the Police Powers and Responsibilities Act 2000 , chapter 17 , part 5 or a corresponding law.

party, to a proceeding, means—

(a)for a criminal proceeding—the prosecutor and each accused person; or

(b)for a civil proceeding—each person who is a party to the proceeding; or

(c)for another proceeding—each person who has been given leave to appear in the proceeding.

55Proof of incorporation or registration of company in Queensland

(1)Evidence of the incorporation or registration of a company within the meaning of the Corporations Act that is taken to be registered in Queensland may be given by the production of—

(a)a certificate of the incorporation or registration of the company that purports to be given by the Australian Securities and Investments Commission (the commission), the commission’s delegate or a commission officer; or

(b)an affidavit or statutory declaration of an officer of the company (company verification) made under the Oaths Act 1867 .

(2)The date of incorporation or registration mentioned in the certificate or company verification is evidence of the date on which the company was incorporated or registered.

(2A)Evidence that a company is not incorporated or registered, or no longer incorporated or registered, may be given by the production of a certificate that purports to be given by the commission, the commission’s delegate or a commission officer.

(2B)The date a company ceased being incorporated or registered mentioned in the certificate is evidence of the date on which the company ceased being incorporated or registered.

(3)A document that purports to be—

(a)a copy of, or extract from, a document kept and registered in the office of the commission; and

(b)certified by the commission or the delegate or an officer of the commission;

is admissible in evidence in all cases in which the original document is admissible and for the same purposes and to the same extent.

(4)If the prosecution in a criminal proceeding intends to rely on a company verification, the prosecutor must serve a copy of it on the defendant or the defendant’s legal representative—

(a)for a summary trial or committal proceeding—

(i)when the summons is served on the defendant; or

(ii)not later than 14 days after the defendant first appears in court for the alleged offence; or

(b)for a trial on indictment—not later than 14 days after the indictment against the defendant is presented.

(5)A defendant who is served with a copy of a company verification under subsection (4) must give the prosecution a written notice stating whether the defendant intends to contest a following matter about the company’s incorporation or registration mentioned in the company verification—

(a)the fact of its incorporation or registration;

(b)the date of its incorporation or registration;

(c)the date on which it ceased being incorporated or registered.

(6)The defendant must give the notice by not later than—

(a)10 days before the day the trial of the proceedings to which the notice relates starts; or

(b)the end of a later period allowed by the court, if the court considers it just to extend the period in the particular circumstances.

(7)If, in a proceeding before it, a court considers the defendant or the defendant’s lawyer has unnecessarily caused the prosecution to prove the incorporation or registration of a company, the court may order the defendant to pay the prosecution’s costs of proving the incorporation or registration.

(8)For this section, a defendant is taken to be served with a copy of a company verification if the copy is served on the defendant’s lawyer.

55AProof of disaster situation under Disaster Management Act 2003

(1)Any of the following is evidence of the declaration of a disaster situation—

(a)a copy of a declaration (a relevant declaration) for the disaster situation made under the Disaster Management Act 2003 , section 64 (1) or 69;

(b)the gazette purporting to contain notice of the relevant declaration;

(c)for an oral declaration—a statement from the responsible person for the oral declaration that the oral declaration was made under the Disaster Management Act 2003 .

(2)In this section—

disaster situation means a disaster situation within the meaning of the Disaster Management Act 2003 .

oral declaration means a declaration of a disaster situation made orally under the Disaster Management Act 2003 , section 65 (5) or 70(5), that, at the time of the hearing, has not been recorded under the Disaster Management Act 2003 , section 65 (7) or 70(7).

responsible person, for an oral declaration, means the person who made the oral declaration under the Disaster Management Act 2003 , section 65 (5) or 70(5).

56Proof of unallocated State land grants

Upon its production in any proceeding wherein it is sought to prove any grant from the Crown of land within the State a document that purports—

(a)to be a copy of the instrument of grant or of an entry of such instrument; and

(b)to be certified under the hand of the registrar of titles;

shall be evidence and, in the absence of evidence to the contrary, conclusive evidence of the matters contained therein.

57Proof of lease or licence

(1)This section applies to an instrument of lease or licence issued or continued in force and held under any of the following Acts—

•Housing Act 2003

•Land Act 1994

•Mineral Resources Act 1989 .

(2)An instrument may be proved by the production of a document purporting to be a copy of the instrument certified by the chief executive of the issuing department.

(3)In this section—

issuing department, for an instrument of a lease or licence, means the department dealing with matters about the provisions of the Act under which the lease or licence was issued or continued in force and held.

58Proof of letters patent

(1)The chief executive (premiers) or the State archivist may certify a copy of any letters patent issued by the Crown in relation to the State, or in relation to any matter that concerns the State, to be a true copy of the letters patent.

(2)The chief executive (premiers) may delegate the power under subsection (1) to an appropriately qualified officer of that chief executive’s department.

(3)The State archivist may delegate the power under subsection (1) to an appropriately qualified officer of the State archives.

(4)The copy of the letters patent certified by the chief executive (premiers) or the State archivist is, on production in any proceeding in which it is sought to prove the letters patent, evidence of the matters contained in the copy.

(5)In this section—

chief executive (premiers) means the chief executive of the department dealing with matters under the Constitution of Queensland 2001 .

State archives means the Queensland State Archives established under the Public Records Act 2002 , section 21 (2) .

State archivist means the State Archivist under the Public Records Act 2002 , section 21 (1) .

58AProof of document under Royal Sign Manual

Evidence of a document under the signature or royal hand of the Sovereign in relation to the State or in relation to any matter concerning the State (the Royal Sign Manual document) may be given by the production of a document purporting to be a copy of the Royal Sign Manual document certified by the chief executive of the department dealing with matters under the Constitution of Queensland 2001 .

Division 2 Proof of certain miscellaneous documents and matters

59Comparison of disputed writing

(1)Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses and such writings and the evidence of witnesses respecting the same may be submitted as evidence of the genuineness or otherwise of the writing in dispute.

(2)A court may compare a disputed writing with any writing that is genuine and act upon its own conclusions in relation thereto.

60Proof of instrument to validity of which attestation is not necessary

It shall not be necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite, and such instrument may be proved by admission or otherwise as if there had been no attesting witness thereto.

61Proof of instrument to validity of which attestation is necessary

(1)Any instrument to the validity of which attestation is requisite may, instead of being proved by an attesting witness, be proved in the manner in which it might be proved if no attesting witness were alive.

(2)Nothing in this section shall apply to the proof of wills or other testamentary documents.

62Presumption as to documents 20 years old

Where any document is proved or purports to be not less than 20 years old, there shall be made any presumption which immediately before the date of the passing of the Evidence Acts Amendment Act 1962 would have been made in the case of a document of like character proved or purporting to be not less than 30 years old.

63Wills, deeds etc. may be verified by declaration

(1)Any attesting witness to the execution of any will or codicil, deed, or instrument in writing, and any other competent person, may verify and prove the signing, sealing, publication, or delivery of any such will, codicil, deed or instrument in writing by declaration in writing made under the Oaths Act 1867 .

(2)A party who intends to adduce in evidence as proof of the execution of a will, codicil, deed or instrument in writing a declaration made in accordance with subsection (1) shall give such notice of the party’s intention to do so as may be required by rules of court.

(3)The method of proof prescribed by this section shall be in addition to and not in derogation of any other method of proving the due execution of a will or codicil prescribed by rules of court.

64Evidentiary effect of probate etc.

(1)The probate of a will or letters of administration with a will annexed are evidence of the due execution of the will.

(2)The copy of a will annexed to a probate or to letters of administration is evidence of the contents of the will.

(3)The probate of a will is evidence of the death of the testator and, if the probate states the date of death of the testator, of the date of the testator’s death.

(4)Letters of administration of the estate of a deceased person are evidence of the death of the person and, if the letters of administration state the date of death of the person, of the date of the person’s death.

(5)In this section—

(a)a reference to probate shall be read as a reference to probate, and to an exemplification of probate, whether granted within or outside the State; and

(b)a reference to letters of administration shall be read as a reference to letters of administration, to an exemplification of letters of administration, whether granted within or outside the State and to an order to administer the estate of a deceased person granted to the public trustee.

65Maps, charts etc.

(1)Where in a proceeding there is a question as to the territorial limits or situation of an area or place, or the distance between 2 places, a court may admit in evidence—

(a)a published book, map, chart or document that appears to the court to be a reliable source of information in relation to the question; or

(b)a certificate purporting to be given by the chief executive (surveys), or the holder of another office that, in the court’s opinion, qualifies the person to express an opinion about the question.

(2)In any proceeding a map, chart or plan purporting to be issued or published by any department of the Government of the State or of the Commonwealth or by an officer thereof in discharge of the officer’s functions shall, upon its production, be sufficient evidence of the matters stated or delineated thereon until the contrary is proved.

66Astronomical phenomena

(1)Where in a proceeding there is a question as to the time or duration of any astronomical phenomenon that has occurred or shall occur in relation to a place, a court may admit in evidence a certificate about the question given by the chief executive (surveys).

(2)The certificate may include an explanation of the terms used therein, a statement of their recognised practical application, and the basis for calculating the time or duration of the astronomical phenomenon.

(3)In this section—

astronomical phenomenon includes the rising or setting of the sun or moon, the position of the sun or moon, the phase of the moon and the degree of twilight.

Division 3 Proof of certain Australian and overseas documents and matters

67Definitions for div 3

In this division—

overseas country means a country or part of a country outside the Commonwealth and includes any international organisation of which the Commonwealth or an overseas country is a member.

statute includes any instrument of a legislative nature made, granted or issued under a statute.

68Proof of certain Australian and overseas written laws etc.

Evidence of—

(a)a statute, proclamation or act of state of a State or Territory other than Queensland; or

(b)a statute, proclamation, treaty or act of state of an overseas country;

may be given by the production of—

(c)a copy proved to be an examined copy thereof; or

(d)a copy purporting to be sealed with the seal of that State, Territory or country; or

(e)a book or pamphlet purporting to be published by the authority of the government of that State, Territory or country or by the government or official printer of that State, Territory or country containing the statute, proclamation, treaty or act of state; or

(f)a book or publication that appears to the court to be a reliable source of information containing the statute, proclamation, treaty or act of state; or

(g)a book or pamphlet that is proved to the satisfaction of the court to be admissible in the courts in that State, Territory or country as evidence of the statutes, proclamations, treaties or acts of state of that State, Territory or country contained in that book or pamphlet.

69Proof of judicial proceedings of an overseas country

Evidence of—

(a)a judgment, decree, rule, conviction, acquittal, sentence or other order, process, act or decision of any court in an overseas country; or

(b)an affidavit, pleading, will, codicil, indictment or other legal document filed, deposited or presented in any such court;

may be given by the production of a copy thereof—

(c)proved to be an examined copy thereof; or

(d)purporting—

(i)to be sealed with the seal of such court; or

(ii)to be signed by a judge of such court with a statement in writing attached by the judge to the judge’s signature that such court has no seal and without proof of the judge’s judicial character or of the truth of such statement.

70Proof of certain documents admissible elsewhere in Australia

Any document which by a law at any time in force in a State or Territory other than Queensland is admissible in evidence for any purpose in a court of that State or Territory without proof of—

(a)the seal or stamp or signature authenticating the same; or

(b)the judicial or official character of the person appearing to have signed the same, shall be admissible in evidence to the same extent and for the same purpose in all courts in Queensland without such proof.

71Royal proclamations, orders of the Privy Council etc.

(1)Evidence of any royal proclamation, order of Her Majesty’s Privy Council, order, regulation, dispatch, or any other instrument made or issued by Her Majesty or by Her Majesty’s Privy Council, or by or under the authority of any of Her Majesty’s Secretaries of State, or of any department of Her Majesty’s Government in the United Kingdom, may be given—

(a)by the production of a document purporting to be a copy of the London gazette or of the government gazette purporting to contain a reprint of such proclamation, order of the Privy Council, order, regulation, dispatch or other instrument; or

(b)by the production in the case of any such proclamation of a copy purporting to be printed by the government printer.

(2)In this section (but without affecting the generality of the expression when used elsewhere)—

Her Majesty includes any predecessors of Her Majesty.

72Proof of certain Australian and overseas public documents

Where a document of a State or Territory of the Commonwealth other than Queensland or of an overseas country is of such a public nature that it would if it were a Queensland document be admissible in evidence in Queensland on its mere production from proper custody, a copy of or extract from the document shall be admissible in evidence if—

(a)it is proved to be an examined copy or extract; or

(b)it purports to be certified as a true copy or extract under the hand of a person described in the certificate as the person to whose custody the original is entrusted.

73Proof of incorporation or registration of certain Australian and overseas companies

Evidence of the incorporation or registration of a company within the meaning of the Corporations Act that is taken to be registered in a State or Territory of the Commonwealth other than Queensland or in an overseas country may be given by the production of a certificate of the incorporation or registration of that company which purports to be signed or issued by the Australian Securities and Investments Commission or the proper officer or body in that country, and the date of incorporation or registration mentioned in such certificate shall be evidence of the date on which the company was incorporated or registered.

74Proof of birth, adoption, death or marriage

A document purporting to be either the original or a certified copy of a certificate, entry or record of a birth, adoption, death or marriage alleged to have taken place whether in Australia or elsewhere is evidence in a proceeding of the matters contained therein.

Division 4 Proof of telegraphic messages

75Notice of intention to adduce telegraphic message in evidence

(1)In any proceeding (not being a criminal proceeding), any party may at any time after the commencement thereof give notice to any other party that the party proposes to adduce in evidence at the trial or hearing any telegraphic message that has been sent by telegraph from any place in the Commonwealth to any other place in the Commonwealth.

(1A)However—

(a)the time between the giving of such notice and the day on which such evidence shall be tendered shall not in any case be less than 2 days; and

(b)every such notice shall specify the names of the sender and receiver of the message, the subject matter thereof, and the date as nearly as may be.

(2)Any such notice may be served and the service thereof proved in the same manner as notices to produce may now be served and proved.

76Proof of message

Where a notice under section 75 has been given, the production of a telegraphic message described in the notice and purporting to have been sent by any person, together with evidence that the same was duly received from a telegraph office, shall be evidence that such message was sent by the person so purporting to be the sender thereof to the person to whom the same is addressed.

77Proof of sending a message

Where a notice under section 75 has been given, the production of a telegraphic message, or a copy thereof verified on oath, together with evidence that such message was sent to or delivered at a telegraph office and that the fees (if any) for the transmission thereof were duly paid shall be evidence that such message was duly delivered to the person named therein as the person to whom the same was to be transmitted.

Division 5 Admissibility of convictions in civil proceedings

78Definitions for div 5

In this division—

conviction does not include—

(a)a conviction that has been set aside or quashed; or

(b)where the person convicted of an offence has been granted a pardon in respect of that offence, such a conviction;

and the term convicted has a corresponding meaning.

court means any court of Queensland, of the Commonwealth or of any other State or Territory but does not include a court martial.

79Convictions as evidence in civil proceedings

(1)In this section—

civil proceeding does not include an action for defamation.

convicted means a finding of guilt for an offence, on a plea of guilty or otherwise, and whether or not a conviction was recorded.

(2)In any civil proceeding the fact that a person has been convicted by a court of an offence is admissible in evidence for the purpose of proving, where to do so is relevant to any issue in that proceeding, that the person committed that offence.

(3)In any civil proceeding in which by virtue of this section a person is proved to have been convicted by a court of an offence the person shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence.

(4)This section applies—

(a)whether or not a person was convicted upon a plea of guilty; and

(b)whether or not the person convicted is a party to the civil proceeding.

80Convictions as evidence in actions for defamation

In an action for defamation in which the question whether a person did or did not commit a criminal offence is relevant to an issue arising in the action, proof that at the time when the issue falls to be determined that person stands convicted by a court of that offence is conclusive evidence that the person committed that offence.

81Evidence identifying the particulars of a conviction

Without prejudice to the reception of any other evidence for the purpose of identifying the particulars of a conviction—

(a)the contents of any document which is admissible as evidence of the conviction; and

(b)the contents of any document which is admissible as evidence of the complaint, information, indictment or charge on which the person in question was convicted;

shall be admissible for that purpose where by virtue of section 79 or 80 evidence of the conviction may be given.

82Operation of other laws not affected

Nothing in this division derogates from the operation of any other law under which a conviction or finding of fact in a criminal proceeding is, for the purposes of any proceeding, made evidence or conclusive evidence of any fact.

Division 6 Books of account

83Definitions for div 6

In this division—

book of account includes any document used in the ordinary course of any undertaking to record the financial transactions of the undertaking or to record anything acquired or otherwise dealt with by, produced in, held for or on behalf of, or taken or lost from the undertaking and any particulars relating to any such thing.

court means—

(a)in relation to any proceeding in the Supreme Court—the Supreme Court or a judge thereof; and

(b)in relation to any proceeding in the District Court—the District Court or a judge thereof; and

(c)in relation to any proceeding in a Magistrates Court or before justices—the Magistrates Court, a magistrate or a justice; and

(d)in relation to any other proceeding—the Supreme Court or a judge thereof.

84Entries in book of account to be evidence

Subject to this division, in all proceedings—

(a)an entry in a book of account shall be evidence of the matters, transactions and accounts therein recorded; and

(b)a copy of an entry in a book of account shall be evidence of the entry and of the matters, transactions and accounts therein recorded.

85Proof that book is a book of account

(1)An entry or a copy of an entry in a book of account shall not be admissible in evidence under this division unless it is first proved that the book was at the time of the making of the entry 1 of the ordinary books of account of the undertaking to which it purports to relate and that the entry was made in the usual and ordinary course of that undertaking.

(2)Such proof may be given by a responsible person familiar with the books of account of the undertaking and may be given orally or by an affidavit sworn or by a declaration made before a commissioner or person authorised to take affidavits or statutory declarations.

86Verification of copy

(1)A copy of an entry in a book of account shall not be admissible in evidence under this division unless it is further proved that the copy has been examined with the original entry and is correct.

(2)Such proof may be given by some person who has examined the copy with the original entry and may be given either orally or by an affidavit sworn or by a declaration made before a commissioner or person authorised to take affidavits or statutory declarations.

87Matters which may be proved under this division ordinarily to be so proved

A person engaged in any undertaking or an employee of that person shall not in any proceeding to which the person is not a party be compellable to produce any book of account the contents of which can be proved under this division or to appear as a witness to prove the matters, transactions and accounts therein recorded unless by order of a court.

88Court may order books of account or copies to be made available

(1)On the application of any party to a proceeding, a court may order that such party be at liberty to inspect and take copies of or extracts from any entries in a book of account of any undertaking for any of the purposes of such proceeding.

(2)An order under this section may be made either with or without summoning the person engaged in the undertaking or any other party and shall be served on the person engaged in the undertaking 3 clear days before the same is to be obeyed unless the court otherwise directs.

(3)An order under this section may direct that the person engaged in the undertaking shall, on payment of such fee as is specified in the order, prepare and deliver to the party who obtained that order a duly verified copy of such entries as may be required for evidence in the proceeding.

(4)For the purposes of subsection (2), Saturday, Sunday, and any day which is a public holiday throughout the State or in that part of the State in which the order is to be obeyed shall be excluded from the computation of time.

(5)Where a person engaged in any undertaking is a party to a proceeding, the other party or parties thereto shall be at liberty to inspect and make copies of or extracts from the original entries and the accounts of which such entries form a part and the documents in respect of which such entries were made as though this division had not been enacted.

89Proof that a person has no account

(1)Where it is sought to prove for the purposes of a proceeding that a person did not at a given time have an account with an undertaking or with any branch thereof, evidence of the fact may be given by a responsible person familiar with the books of account of the undertaking or, as the case may be, of the branch thereof.

(2)Such evidence may be given by such person orally or by an affidavit sworn or by a declaration made before a commissioner or person authorised to take affidavits or statutory declarations.

90Costs

(1)The costs of any application to a court under or for the purposes of this division and the costs of anything done or to be done under an order of a court made under or for the purposes of this division shall be in the discretion of the court, who may order the same or any part thereof to be paid to any party by the person engaged in the undertaking concerned where the same have been occasioned by any default or delay on the part of that person.

(2)Any such order against a person engaged in an undertaking may be enforced as if the person were a party to the proceeding.

91Application of ss 84 –86 and 89

Sections 84 to 86 and 89 shall apply to and in relation to books of account and persons engaged in undertakings in any State or Territory.

Part 6 Admissibility of statements and representations

92Admissibility of documentary evidence as to facts in issue

(1)In any proceeding (not being a criminal proceeding) where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, subject to this part, be admissible as evidence of that fact if—

(a)the maker of the statement had personal knowledge of the matters dealt with by the statement, and is called as a witness in the proceeding; or

(b)the document is or forms part of a record relating to any undertaking and made in the course of that undertaking from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied, and the person who supplied the information recorded in the statement in question is called as a witness in the proceeding.

(2)The condition in subsection (1) that the maker of the statement or the person who supplied the information, as the case may be, be called as a witness need not be satisfied where—

(a)the maker or supplier is dead, or unfit by reason of bodily or mental condition to attend as a witness; or

(b)the maker or supplier is out of the State and it is not reasonably practicable to secure the attendance of the maker or supplier; or

(c)the maker or supplier can not with reasonable diligence be found or identified; or

(d)it can not reasonably be supposed (having regard to the time which has elapsed since the maker or supplier made the statement, or supplied the information, and to all the circumstances) that the maker or supplier would have any recollection of the matters dealt with by the statement the maker made or in the information the supplier supplied; or

(e)no party to the proceeding who would have the right to cross-examine the maker or supplier requires the maker or supplier being called as a witness; or

(f)at any stage of the proceeding it appears to the court that, having regard to all the circumstances of the case, undue delay or expense would be caused by calling the maker or supplier as a witness.

(3)The court may act on hearsay evidence for the purpose of deciding any of the matters mentioned in subsection (2)(a), (b), (c), (d) or (f).

(4)For the purposes of this part, a statement contained in a document is made by a person if—

(a)it was written, made, dictated or otherwise produced by the person; or

(b)it was recorded with the person’s knowledge; or

(c)it was recorded in the course of and ancillary to a proceeding; or

(d)it was recognised by the person as the person’s statement by signing, initialling or otherwise in writing.

93Admissibility of documentary evidence as to facts in issue in criminal proceedings

(1)In any criminal proceeding where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, subject to this part, be admissible as evidence of that fact if—

(a)the document is or forms part of a record relating to any trade or business and made in the course of that trade or business from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied; and

(b)the person who supplied the information recorded in the statement in question—

(i)is dead, or unfit by reason of the person’s bodily or mental condition to attend as a witness; or

(ii)is out of the State and it is not reasonably practicable to secure the person’s attendance; or

(iii)can not with reasonable diligence be found or identified; or

(iv)can not reasonably be supposed (having regard to the time which has lapsed since the person supplied the information and to all the circumstances) to have any recollection of the matters dealt with in the information the person supplied.

(2)In this section—

business includes any public transport, public utility or similar undertaking carried on in Queensland or elsewhere by the Crown (in right of the State of Queensland or any other right) or a statutory body.

93AStatement made before proceeding by child or person with an impairment of the mind

(1)In any proceeding where direct oral evidence of a fact would be admissible, any statement tending to establish that fact, contained in a document, shall, subject to this part, be admissible as evidence of that fact if—

(a)the maker of the statement was a child or a person with an impairment of the mind at the time of making the statement and had personal knowledge of the matters dealt with by the statement; and

(b)the maker of the statement is available to give evidence in the proceeding.

(2)If a statement mentioned in subsection (1) (the main statement) is admissible, a related statement is also admissible as evidence if the maker of the related statement is available to give evidence in the proceeding.

(2A)A related statement is a statement—

(a)made by someone to the maker of the main statement, in response to which the main statement was made; and

(b)contained in the document containing the main statement.

(2B)Subsection (2) is subject to this part.

(3)Where the statement of a person is admitted as evidence in any proceeding pursuant to subsection (1) or (2), the party tendering the statement shall, if required to do so by any other party to the proceeding, call as a witness the person whose statement is so admitted and the person who recorded the statement.

(3A)For a committal proceeding for a relevant offence, subsections (1)(b) and (3) do not apply to the person who made the statement if the person is an affected child.

Note—

For the taking of an affected child’s evidence for a committal proceeding for a relevant offence, see part 2 , division 4A , subdivision 2 .

(4)In the application of subsection (3) to a criminal proceeding—

party means the prosecution or the person charged in the proceeding.

(5)In this section—

affected child see section 21AC .

child, in relation to a person who made a statement under subsection (1), means—

(a)a person who was under 16 years when the statement was made, whether or not the person is under 16 years at the time of the proceeding; or

(b)a person who was 16 or 17 years when the statement was made and who, at the time of the proceeding, is a special witness.

relevant offence see section 21AC .

93AAUnauthorised possession of, or dealing in, s 93A criminal statements

(1)A person commits an offence who, without authority—

(a)has a section 93A criminal statement in the person’s possession; or

(b)supplies, or offers to supply, a section 93A criminal statement to any person; or

(c)copies, or permits a person to copy, a section 93A criminal statement.

Maximum penalty—

(a)for an individual—100 penalty units or 2 years imprisonment; or

(b)for a corporation—1,000 penalty units.

(2)A person has authority for subsection (1) if the person has the possession or does the thing mentioned in subsection (1) for a legitimate purpose connected with the proceeding for which the section 93A statement was made or another proceeding.

(2A)Also, the commissioner of the police service or the director of public prosecutions has authority for subsection (1) if the commissioner or director has the possession or does the thing mentioned in the subsection for the purpose of—

(a)preparing a transcript of a section 93A criminal statement so that it can be given to the chief executive (employment screening) as mentioned in paragraph (b); or

(b)giving, under the Working with Children Act, a section 93A transcript, or a summary of a section 93A transcript, to the chief executive (employment screening).

(2B)A person does not commit an offence against subsection (1)(a) by possessing a section 93A transcript, or a summary of a section 93A transcript, if the transcript or summary—

(a)was, under the Working with Children Act, given to the former CCYPCG commissioner or the chief executive (employment screening) by the commissioner of the police service or the director of public prosecutions; and

(b)is in the person’s possession, at the relevant time, for the purpose of making an employment-screening decision.

(2C)A person does not commit an offence against subsection (1)(b) if the person supplies, or offers to supply, a written summary of a section 93A transcript that is in the person’s possession under subsection (2B)—

(a)to a WWC applicant; and

(b)for a legitimate purpose directly related to the making of an employment-screening decision.

(2D)A person does not commit an offence against subsection (1)(c) if—

(a)the person copies, or permits a person to copy, a section 93A transcript, or a summary of a section 93A transcript, that is in the person’s possession under subsection (2B); and

(b)the copying is done for the purpose of making an employment-screening decision.

(2E)A WWC applicant—

(a)does not commit an offence against subsection (1)(a) by possessing a written summary of a section 93A transcript, if the summary—

(i)was given to the applicant under subsection (2C); and

(ii)is in the applicant’s possession, at the relevant time, for a legitimate purpose directly related to the making of an employment-screening decision; and

(b)does not commit an offence against subsection (1)(b) if the applicant supplies, or offers to supply, a written summary of a section 93A transcript that is in the applicant’s possession under paragraph (a), or a copy of the summary—

(i)to an Australian lawyer; and

(ii)for the purpose of obtaining legal advice directly related to the making of an employment-screening decision; and

(c)does not commit an offence against subsection (1)(c) if—

(i)the applicant copies, or permits a person to copy, a written summary of a section 93A transcript that is in the applicant’s possession under paragraph (a); and

(ii)the copying is done so that a copy of the summary can be given to an Australian lawyer for the purpose of obtaining legal advice directly related to the making of an employment-screening decision.

(2F)An Australian lawyer does not commit an offence against subsection (1)(a) by possessing a written summary of a section 93A transcript, or a copy of a written summary of a section 93A transcript, if the summary or copy—

(a)was given to the lawyer under subsection (2E) by a WWC applicant; and

(b)is in the lawyer’s possession, at the relevant time, for the purpose of providing legal advice directly related to the making of an employment-screening decision about the applicant.

(3)In this section—

Australian lawyer has the meaning given by the Legal Profession Act 2007 .

chief executive (employment screening) means the chief executive of the department in which the Working with Children Act is administered.

employment-screening decision means an employment-screening decision under the Working with Children Act.

former CCYPCG commissioner means the Commissioner for Children and Young People and Child Guardian before the commencement of this definition.

section 93A criminal statement means a statement—

(a)made to a person investigating an alleged offence; and

(b)given in, or in anticipation of, a criminal proceeding about the alleged offence; and

(c)that is potentially admissible under section 93A .

section 93A transcript means a transcript of a section 93A criminal statement.

Working with Children Act means the Working with Children (Risk Management and Screening) Act 2000 .

WWC applicant, for a section 93A transcript, means a person—

(a)who allegedly committed the alleged offence to which the transcript relates; and

(b)about whom the former CCYPCG commissioner or the chief executive (employment screening) has made, or the chief executive (employment screening) is about to make, an employment-screening decision.

93BAdmissibility of representation in prescribed criminal proceedings if person who made it is unavailable

(1)This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact—

(a)made a representation about the asserted fact; and

(b)is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence.

(2)The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was—

(a)made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or

(b)made in circumstances making it highly probable the representation is reliable; or

(c)at the time it was made, against the interests of the person who made it.

(3)If evidence given by a person of a representation about a matter has been adduced by a party and has been admitted under subsection (2), the hearsay rule does not apply to the following evidence adduced by another party to the proceeding—

(a)evidence of the representation given by another person who saw, heard or otherwise perceived the representation;

(b)evidence of another representation about the matter given by a person who saw, heard or otherwise perceived the other representation.

(4)To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence.

(5)In this section—

prescribed criminal proceeding means a criminal proceeding against a person for an offence defined in the Criminal Code , chapters 28 to 32.

representation includes—

(a)an express or implied representation, whether oral or written; and

(b)a representation to be inferred from conduct; and

(c)a representation not intended by the person making it to be communicated to or seen by another person; and

(d)a representation that for any reason is not communicated.

93CWarning and information for jury about hearsay evidence

(1)This section applies if evidence is admitted under section 93B (hearsay evidence) and there is a jury.

(2)On request by a party, the court must, unless there are good reasons for not doing so—

(a)warn the jury the hearsay evidence may be unreliable; and

(b)inform the jury of matters that may cause the hearsay evidence to be unreliable; and

(c)warn the jury of the need for caution in deciding whether to accept the hearsay evidence and the weight to be given to it.

(3)It is not necessary for a particular form of words to be used in giving the warning or information.

(4)This section does not affect another power of the court to give a warning to, or to inform, the jury.

94Admissibility of evidence concerning credibility of persons responsible for statement

(1)Where in any proceeding a statement is given in evidence by virtue of section 84 , 92 , 93 or 93A and a person who made the statement or supplied the information recorded in it is not called as a witness in the proceeding—

(a)any evidence which, if that person had been so called, would be admissible for the purpose of destroying or supporting the person’s credibility as a witness shall be admissible for that purpose in that proceeding;

(b)any evidence tending to prove that, whether before or after the person made that statement or supplied that information, the person made another statement or supplied other information (whether orally or in a document or otherwise) inconsistent therewith shall be admissible for the purpose of showing that the person has contradicted himself or herself;

but nothing in paragraph (a) or (b) shall enable evidence to be given of any matter of which, if the person in question had been called as a witness and had denied that matter in cross-examination, evidence could not have been adduced by the cross-examining party.

(2)Where in any proceeding a statement is given in evidence by virtue of section 84 , 92 , 93 or 93A and a person who made the statement or supplied the information recorded in it is not called as a witness in the proceeding any evidence proving that that person has been guilty of any indictable or other offence shall, with the leave of the court, be admissible in the proceeding to the same extent as if that person had been so called and on being questioned as to whether the person had been convicted of an indictable or other offence had denied the fact or refused to answer the question.

95Admissibility of statements in documents or things produced by processes or devices

(1)In a proceeding where direct oral evidence of a fact would be admissible, a statement contained in a document or thing produced wholly or partly by a device or process and tending to establish that fact is, subject to this part, admissible as evidence of that fact.

(2)A court may presume the process or device produced the document or thing containing the statement if the court considers an inference can reasonably be made that the process or device, if properly used, produces a document or thing of that kind.

(3)In a proceeding, a certificate purporting to be signed by a responsible person for the process or device and stating any of the following matters is evidence of the matter for the purpose of subsection (2)—

(a)that the document or thing was produced wholly or partly by the process or device;

(b)that the document or thing was produced wholly or partly in a particular way by the process or device;

(c)that, if properly used, the process or device produces documents or things of a particular kind;

(d)any particulars relevant to a matter mentioned in paragraph (a), (b) or (c).

(4)A person who signs a certificate mentioned in subsection (3) commits an offence if—

(a)a matter is stated in the certificate that the person knows is false or ought reasonably to know is false; and

(b)the statement of the matter is material in the proceeding.

Maximum penalty—20 penalty units or 1 year’s imprisonment.

(5)If a party (the relying party) to a proceeding intends to rely on the certificate, the party must give a copy of the certificate to each other party to the proceeding—

(a)at least 10 business days before the hearing day; or

(b)if, in the particular circumstances, the court considers it just to shorten the period mentioned in paragraph (a)—by a later date allowed by the court.

(6)If a party to the proceeding, other than the relying party, intends to challenge a matter stated in the certificate, the party must give the relying party notice in writing of the matter to be challenged—

(a)at least 3 business days before the hearing day; or

(b)if, in the particular circumstances, the court considers it just to shorten the period mentioned in paragraph (a)—by a later date allowed by the court.

(7)In this section—

hearing day means the day fixed for the start of the hearing of the proceeding.

responsible person, for a process or device that produced a document or thing, means a person responsible, at or about the time the process or device produced the document or thing, for—

(a)the operation of the process or device; or

(b)the management of activities for which the document or thing was produced by the process or device.

95ADNA evidentiary certificate

(1)This section applies to a criminal proceeding.

(2)However, subsections (4), (5), (8) and (9) do not apply to a criminal proceeding if the proceeding is an examination of witnesses in relation to an indictable offence.

(3)A certificate, in the approved form, purporting to be signed by a DNA analyst and stating any of the following matters is evidence of the matter—

(a)that a stated thing was received at a stated laboratory on a stated day;

(b)that the thing was tested at the laboratory on a stated day or between stated days;

(c)that a stated DNA profile has been obtained from the thing;

(d)that the DNA analyst—

(i)examined the laboratory’s records relating to the receipt, storage and testing of the thing, including any test process that was done by someone other than the DNA analyst; and

(ii)confirms that the records indicate that all quality assurance procedures for the receipt, storage and testing of the thing that were in place in the laboratory at the time of the test were complied with.

(4)If a party (the relying party) intends to rely on the certificate, the relying party must, at least 10 business days before the hearing day, give a copy of the certificate to each other party.

(5)If, at least 5 business days before the hearing day, a party other than the relying party gives a written notice to each other party that it requires the DNA analyst to give evidence, the relying party must call the DNA analyst to give evidence at the hearing.

(6)If the responsible person for the laboratory receives a written request from a party for a copy of the laboratory’s records relating to the receipt, storage and testing of the thing, the responsible person must give the party a copy of the records within 7 business days after receiving the request.

(7)If a party intends to challenge a matter stated in the certificate, the party must, at least 5 business days before the hearing day, give the responsible person and each other party notice, in the approved form, of the matter to be challenged.

(8)A party challenging a matter stated in the certificate may, with the leave of the court, require the party relying on the certificate to call any person involved in the receipt, storage or testing of the thing to give evidence at the hearing.

(9)The court may give leave only if the court is satisfied that—

(a)an irregularity may exist in relation to the receipt, storage or testing of the thing about which the person to be called is able to give evidence; or

(b)it is in the interests of justice that the person be called to give evidence.

(10)Any equipment used in testing the thing at the laboratory is to be taken to have given accurate results in the absence of evidence to the contrary.

(11)The court may at any time, on application by a party, make an order shortening or extending a period mentioned in this section.

(12)Without limiting subsection (11), the court may waive the requirement for a party other than the relying party to give notice under subsection (5) that it requires the DNA analyst to give evidence.

(13)If the court makes an order under subsection (12), the relying party must call the DNA analyst to give evidence at the hearing.

(14)In this section—

DNA analyst means a person who holds an appointment as a DNA analyst under section 133A .

DNA profile means the result from DNA analysis.

hearing day means the day fixed for the start of the hearing of the proceeding.

party means the prosecution or a person charged in the proceeding.

responsible person, for a laboratory, means—

(a)if the commissioner of the police service has entered into a DNA arrangement with the laboratory under the Police Powers and Responsibilities Act 2000 , section 488B (1) —the chief executive officer, however described, of the laboratory; or

(b)otherwise—the chief executive of the department within which the Hospital and Health Boards Act 2011 is administered.

96Inferences concerning admissibility

(1)For the purpose of deciding whether or not a statement is admissible in evidence by virtue of this part, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances.

(2)For the purpose of deciding whether or not a statement is admissible in evidence by virtue of section 92 or 93 , the court may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be a certificate of a legally qualified medical practitioner.

97Authentication

Where in any proceeding a statement contained in a document is proposed to be given in evidence by virtue of this part, it may be proved by the production of that document or (whether or not that document is still in existence) by the production of a copy of that document, or the material part thereof, authenticated in such manner as the court may approve.

98Rejection of evidence

(1)The court may in its discretion reject any statement or representation notwithstanding that the requirements of this part are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.

(2)This section does not affect the admissibility of any evidence otherwise than by virtue of this part.

99Withholding statement from jury room

Where in a proceeding there is a jury, and a statement in a document is admitted in evidence under this part, and it appears to the court that if the jury were to have the document with them during their deliberations they might give the statement undue weight, the court may direct that the document be withheld from the jury during their deliberations.

100Corroboration

For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by this part shall not be treated as corroboration of evidence given by the maker of the statement or the person who supplied the information from which the record containing the statement was made.

101Witness’s previous statement, if proved, to be evidence of facts stated

(1)Where in any proceeding—

(a)a previous inconsistent or contradictory statement made by a person called as a witness in that proceeding is proved by virtue of section 17 , 18 or 19 ; or

(b)a previous statement made by a person called as aforesaid is proved for the purpose of rebutting a suggestion that the person’s evidence has been fabricated;

that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible.

(2)Subsection (1) shall apply to any statement or information proved by virtue of section 94 (1)(b) as it applies to a previous inconsistent or contradictory statement made by a person called as a witness which is proved as mentioned in subsection (1)(a).

(3)Nothing in this part shall affect any of the rules of law relating to the circumstances in which, where a person called as a witness in any proceeding is cross-examined on a document used by the person to refresh the person’s memory, that document may be made evidence in that proceeding, and where a document or any part of a document is received in evidence in any such proceeding by virtue of any such rule of law, any statement made in that document or part by the person using the document to refresh the person’s memory shall by virtue of this subsection be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible.

102Weight to be attached to evidence

In estimating the weight (if any) to be attached to a statement rendered admissible as evidence by this part, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including—

(a)the question whether or not the statement was made, or the information recorded in it was supplied, contemporaneously with the occurrence or existence of the facts to which the statement or information relates; and

(b)the question whether or not the maker of the statement, or the supplier of the information recorded in it, had any incentive to conceal or misrepresent the facts.

103Provisions of part are alternative

Sections 92 to 95 and 101 shall be construed as in aid of and as alternative to one another, any other provision in any other part, and any other law practice or usage with respect to the admissibility in evidence of statements.

Part 7 Reproductions of documents

Division 1 Preliminary

104Definitions for part

In this part—

affidavit includes statutory declarations.

business includes any undertaking.

machine copy, in relation to a document, means a copy of the document made by a machine performing a process—

(a)involving the production of a latent image of the document (not being a latent image on photosensitive material on a transparent base) and the development of that image by chemical means or otherwise; or

(b)that, without the use of photosensitive material, produces a copy of the document simultaneously with the making of the document.

original document means—

(a)when referred to in connection with the production of a document in answer to legal process issued by a court, the document that would, if this part had not been enacted, be required to be produced in answer to that process; or

(b)when referred to in connection with the admissibility of a document in evidence in a proceeding—

(i)a document that would, if this part had not been enacted, be admissible in evidence in that proceeding in lieu of another document where a party to the proceeding failed to produce that other document in response to notice to do so given to the party by another such party; or

(ii)any other document that would, if this part had not been enacted, be admissible in evidence in that proceeding.

reproduction in relation to a document means a machine copy of the document or a print made from a transparency of the document and reproduce and any derivatives thereof have a corresponding meaning.

transparency, in relation to a document, means—

(a)a developed negative or positive photograph of that document (an original photograph) made on a transparent base by means of light reflected from, or transmitted through, the document; or

(b)a copy of an original photograph made by the use of photosensitive material (being photosensitive material on a transparent base) placed in surface contact with the original photograph; or

(c)any 1 of a series of copies of an original photograph, the first of the series being made by the use of photosensitive material (being photosensitive material on a transparent base) placed in surface contact with a copy referred to in paragraph (b) of this definition, and each succeeding copy in the series being made, in the same manner, from any preceding copy in the series.

Division 2 Reproduction of official documents

105Certified reproductions of certain official documents etc. to be admissible without further proof

(1)In this section—

approved person means—

(a)a person the Minister declares by gazette notice to be an approved person; or

(b)where an original document to which this section relates is a document filed in a court or the official record of a proceeding, the registrar or other proper officer of the court in which the document was filed or before which the proceeding took place.

(2)A person shall not fail or cease to be an approved person by reason only of a misdescription or an abbreviated description of a designated office by virtue of which the person would, but for the misdescription or abbreviated description, be an approved person, where the misdescription or abbreviation does not materially affect identification of that person.

(3)A document that purports to be a copy of an original document shall, without further proof, be admissible in evidence in a proceeding as if it were the original document of which it purports to be a copy, if it bears or is accompanied by a certificate, purporting to have been signed by an approved person, that it is a reproduction of a document that was in the custody or control of that person in the person’s official capacity—

(a)where the reproduction is a machine copy, at the time the machine copy was made; or

(b)where the reproduction is a print made from a transparency, at the time when the transparency was made.

(4)Where an approved person is served with legal process to produce a document to a court it shall be a sufficient answer to such process if the person to whom the process is addressed sends by post, or causes to be delivered, to the registrar or proper officer of the court requiring the production of the document a reproduction, certified as provided by this section, of the document and, where more than 1 document is specified howsoever in the legal process, further certifies, that, to the best of the person’s knowledge and belief, the reproductions so sent or caused to be delivered are reproductions of the whole of the documents in question.

(5)For the purposes of this section and without prejudice to any form of custody or control, an approved person shall be deemed to have custody or control of a document at the time the transparency of the document was made if—

(a)the person has custody or control of the transparency; and

(b)the transparency—

(i)incorporates a transparency of a certificate purporting to have been signed by an approved person to the effect that the transparency was made as a permanent record of a document in the custody or under the control of the person who signed the certificate; or

(ii)is 1 of a series of transparencies that incorporates, as part of the series, a transparency of such a certificate relating to the transparencies in the series.

(6)Division 3 of this part shall not apply to or in respect of a reproduction of a document referred to in this division.

Division 3 Reproduction of business documents

106Admissibility of reproductions of business documents destroyed, lost or unavailable

(1)Subject to this part, a document that purports to be a copy of an original document made or used in the course of a business shall, upon proof that it is a reproduction made in good faith and that the original document has been destroyed or lost, whether wholly or in part, or that it is not reasonably practicable to produce the original document or to secure its production, be admissible in evidence in any proceeding to the extent to which the contents of the original document of which it purports to be a copy would have been admissible and it shall, subject to proof of the same matters, be a sufficient answer to legal process issued by a court, requiring production of a document to the court, for the person required by that process to produce the document to produce such a reproduction of the document.

(2)Without prejudice to any other mode of proof an affidavit purporting to have been made by a person at or about the time the person made a machine copy of or photographed a document—

(a)stating the person’s full name, address and occupation; and

(b)identifying or describing the document and indicating whether the document is itself a reproduction; and

(c)stating the day upon which the person made the machine copy or photograph, the condition of the document at that time with respect to legibility and the extent of any damage thereto; and

(d)describing the machine or process by which the person made the machine copy or photograph; and

(e)stating that the making of the machine copy or photograph was properly carried out by the use of apparatus or materials in good working condition with the object of making a machine copy or, as the case may be, a transparency of the document; and

(f)stating that the machine copy or photograph is a machine copy or photograph made in good faith;

shall be evidence, whether or not such person is available to be called as a witness, that the machine copy or, as the case may be, a transparency of the document referred to in the affidavit is a machine copy or transparency made in good faith and, in the case of a machine copy is, or in the case of a transparency can be used to produce, a reproduction of the document.

107Use of photographing machines

(1)For this part, a regulation may declare a machine to be an approved machine.

(2)Subject to this part, but in addition to and without derogating from the provisions of section 106 (1), a print made from a transparency of an original document (being a document made or used in the course of business) shall be admissible in evidence in a proceeding to the extent to which the contents of the original document would have been admissible, whether the document is still in existence or not, upon proof that the transparency was made in good faith by using a machine that, at the time the transparency was made, was an approved machine and that the print is a print of the image on the transparency.

(3)Without prejudice to any other mode of proof an affidavit purporting to have been made by a person at or about the time the person photographed a document by means of an approved machine—

(a)stating the person’s full name, address and occupation and the person’s functions or duties (if any) in relation to copying documents; and

(b)identifying or describing the document and indicating whether the document is itself a reproduction; and

(c)stating the day upon which the document was photographed, the condition of the document at that time with respect to legibility and the extent of any damage to the document; and

(d)stating the person from whose custody or control the document was produced for photographing or on whose behalf or in the course of whose business the document was photographed; and

(e)identifying the approved machine and stating that the photographing was properly carried out in the ordinary course of business by the use of apparatus and materials in good working order and condition and in accordance with the conditions (if any) attaching to the approval of such machine as so notified; and

(f)stating that the document was photographed in good faith;

shall be evidence, whether such person is available to be called as a witness or not, that a transparency of the document referred to in the affidavit was made in good faith by using an approved machine and bears an image of the document.

108Affidavit of maker of print from transparency to be evidence

Without prejudice to any other mode of proof an affidavit purporting to have been made by a person at or about the time the person made a print from a transparency of a document—

(a)stating the person’s full name, address and occupation; and

(b)identifying the transparency; and

(c)stating the day upon which the print was made, the condition of the transparency and the extent of any damage thereto; and

(d)describing the process by which the person made the print; and

(e)stating that the printing was properly carried out by the use of apparatus and materials in good working order and condition with the object of reproducing the whole of the image on the transparency; and

(f)stating that the print was made in good faith;

shall be evidence, whether such person is available to be called as a witness or not, that the print was made in good faith and reproduces the whole of the image on the transparency.

109Proof where document processed by independent processor

Where a person having the custody or control of a document—

(a)delivers the document, or causes it to be delivered to another person (the processor) whose business is or includes the reproduction or photographing of documents for other persons; and

(b)receives from the processor—

(i)a machine copy or transparency of a document; and

(ii)an affidavit by the processor under section 106 or 107 ;

an affidavit made by the person at or about that time giving particulars of the person’s custody or control of the document, its delivery to the processor and the person’s receipt from the processor, of the document and the machine copy or transparency shall, whether the person who had the custody or control of the document is available to be called as a witness or not, be admissible in a proceeding as evidence of the facts stated therein.

110Reproduction not to be admitted as evidence unless transparency in existence

(1)Save as provided in subsection (2) a reproduction made from a transparency shall not be admitted as evidence pursuant to this division in any proceeding unless the court is satisfied—

(a)that the transparency is in existence at the time of the proceeding; and

(b)that the document reproduced was—

(i)in existence for a period of at least 12 months after the document was made; or

(ii)delivered or sent by the party tendering the reproduction to the other party or 1 of the other parties to the proceeding.

(2)The provisions of subsection (1)(b) do not apply with respect to a print made from a transparency made by using an approved machine where, at the time the print was made, the transparency was in the custody or control of—

(a)a Minister of the Crown in right of the Commonwealth or of the State of Queensland or of any other State or any officer in any government department under the direct control of any such Minister; or

(b)any council, board, commission, trust or other body established or constituted by or under the law of the Commonwealth or of the State of Queensland or of any other State or Territory for any public purpose; or

(c)a financial institution; or

(d)any corporation that is registered under the Life Insurance Act 1995 (Cwlth) where the document reproduced relates to the life insurance business of that corporation.

111Transparency etc. may be preserved in lieu of document

Where any Act passed before or after the commencement of this Act requires a document to which this division applies to be preserved for any purpose for a longer period of time than 3 years it shall be a sufficient compliance with such a requirement to preserve, in lieu of any such document more than 3 years old, a transparency thereof made by using an approved machine together with an affidavit relating to the transparency being a transparency and an affidavit to which section 115 applies.

112Proof of destruction of documents etc.

A statement by any person in an affidavit made for the purposes of this division—

(a)that the person destroyed or caused the destruction of a document; or

(b)that after due search and inquiry a document can not be found; or

(c)that, for the reasons specified therein, it is not reasonably practicable to produce a document or secure its production; or

(d)that a transparency of a document is in the custody or control of a person, corporation or body referred to in section 110 (2); or

(e)that a document was made or was used in the course of the person’s or the person’s employer’s business; or

(f)that the person has made transparencies of a series of documents including the affidavit by photographing them in their proper order;

shall be evidence of the fact or facts stated, whether that person is available to be called as a witness or not.

113One affidavit sufficient in certain circumstances

(1)This section applies to and in respect of transparencies, made by using an approved machine, of a series of documents that—

(a)bear or have been given serial numbers in arithmetical order; or

(b)bear or have been marked with the same distinctive identification mark; or

(c)purport from their contents to relate to the same subject matter, to the same person or persons or to a matter between persons;

where the documents are photographed in their proper order on a continuous length of film or, where the documents are marked in accordance with paragraph (a) or (b), on separate films.

(2)An affidavit made pursuant to this division shall be deemed to be an affidavit in respect of all or any of the transparencies of a series of documents to which this section applies if it is photographed as part of the series and in lieu of identifying or describing each individual document photographed, it states the general nature of the documents in the series and—

(a)the serial numbers of the first and last document in the series; or

(b)the distinctive identification mark; or

(c)the person or persons, or the matter between persons, to which the documents refer;

as the case may require.

(3)Notwithstanding anything contained in this division, a print that purports to be made from a transparency of an affidavit referred to in subsection (2) shall be admissible in evidence in a proceeding as if it were the affidavit from which the transparency was made, if—

(a)it is produced or tendered with a print made from a transparency of a document in the series to which the affidavit relates; and

(b)an affidavit under section 108 relating to both prints is also produced or tendered.

114Certification required when affidavit etc. not contained in length or series of film

Where any affidavit relating to the reproduction of a document is not an affidavit referred to in section 113 (2), a copy thereof duly certified to be a true copy—

(a)in the case of an affidavit in the custody of a body corporate—by the chairperson, secretary or by a director or manager thereof; or

(b)in any other case—by a justice of the peace;

shall, unless the court otherwise orders, be admissible in evidence in a proceeding as if it were the affidavit of which it is certified to be a true copy.

115Discovery, inspection and production where document destroyed or lost

(1)In this section—

affidavit includes—

(a)a transparency, made as provided in section 113 , of an affidavit; and

(b)a copy, certified as provided in section 114 , of an affidavit.

(2)This section applies to—

(a)a transparency of a destroyed or lost document, where a print made from the transparency would, subject to compliance with the conditions prescribed by this part for the purpose, be admissible in evidence in a proceeding; and

(b)an affidavit that would be evidence or, where the affidavit is itself in the form of a transparency, that could be the means of providing evidence, pursuant to this part, of compliance with those conditions in so far as they relate to the making of the transparency and the destruction or loss of the document.

(3)Where any person has the custody or control of a transparency and an affidavit to which this section applies and, but for the destruction or loss of the document from which the transparency was made would be required by any law, order of court, practice or usage—

(a)to give discovery of the document; or

(b)to produce the document for inspection; or

(c)to permit the making of a copy of the document or the taking of extracts therefrom; or

(d)to supply a copy of the document;

the law, order, practice or usage shall, subject to this section, be deemed to extend to the transparency and affidavit.

(4)For the purposes of this section—

(a)the obligation imposed by this section in respect of a requirement referred to in subsection (3)(b) shall be deemed to include an obligation—

(i)to provide proper facilities for reading the image on the transparency and, where the affidavit is itself in the form of a transparency, the image on the transparency of the affidavit; or

(ii)to produce for inspection a print made from the transparency and, where the affidavit is itself in the form of a transparency, a print made from the transparency of the affidavit, together in each case, with an affidavit that would under section 108 , be evidence that the print was made in good faith and reproduces the image on the transparency; and

(b)the obligation imposed by this section in respect of a requirement referred to in subsection (3)(d) shall be deemed not to include an obligation to supply a copy of any transparency but to include, in lieu thereof, an obligation to supply the print and affidavit or, as the case may require, the prints and affidavits, referred to in paragraph (a)(ii).

(5)Where any person has the custody or control of a transparency and an affidavit to which this section applies and is required by legal process issued by a court to produce to the court the document from which the transparency was made, that legal process shall be deemed to require the production by the person of—

(a)a print, made in good faith, that reproduces the image on the transparency; and

(b)the affidavit or, where the affidavit is itself in the form of a transparency, a print, made in good faith, that reproduces the image on the transparency of the affidavit.

Division 4 General

116Copies to be evidence

Notwithstanding any other provision of this part, where a document has been copied by means of a photographic or other machine which produces a facsimile copy of the document, the copy is, upon proof to the satisfaction of the court that the copy was taken or made from the original document by means of the machine, admissible in evidence to the same extent as the original document would be admissible in evidence without—

(a)proof that the copy was compared with the original document; and

(b)notice to produce the original document having been given.

117Further reproduction may be ordered by court

(1)Subject to this section, where a print made from a transparency is, in a proceeding, tendered in evidence pursuant to the provisions of this part and—

(a)the court is not satisfied that the print is a legible copy of the original document; or

(b)a party to the proceeding questions the authenticity of the print and applies for an order under this section;

the court may reject the print tendered and order that a further print be made from a transparency of the original document.

(2)A further print made in compliance with an order made under this section shall be made—

(a)where the order is made under subsection (1)(a), at the cost of the party who tendered the rejected print; or

(b)where the order is made under subsection (1)(b), in the presence of a person appointed by the court for the purpose and at the cost of the party who applied for the order.

(3)Where a print to which division 2 of this part relates is rejected under this section, a print made in compliance with an order under this section shall be made in the same premises as the rejected print or, where this is not practicable, in accordance with directions given by the court.

118Colours and tones of reproductions

(1)For the purposes of this part, the production of a reproduction of a document to a court in answer to a legal process, or the admission of such a reproduction in evidence in a proceeding, shall not be precluded on the ground that it is not a copy of an original document or, where the reproduction is a print made from a transparency, on the ground that the transparency does not bear an image of an original document, if the reproduction is not such a copy, or the transparency does not bear such an image, by reason only of the fact—

(a)that, in the process by which the reproduction or transparency was made, the colours or tones appearing in the original document were altered or reversed in the reproduction or transparency; or

(b)that any number or mark of identification added for the purposes of section 113 appears in the reproduction or transparency.

(2)A document may be certified under division 2 of this part to be a reproduction of an original document notwithstanding that—

(a)any writing or representation describing or identifying colours in the original document appears in the reproduction; or

(b)any colours appearing in the reproduction were added after it was made and before certification.

119Notice to produce not required

Where a reproduction of a document is admissible in evidence pursuant to this part, it shall be so admissible whether or not notice to produce the document of which it is a reproduction has been given.

120Proof of comparisons not required

Where a reproduction of a document is tendered as evidence pursuant to this part, no proof shall be required that the reproduction was compared with the original document.

121Presumptions as to ancient documents

Any presumption that may be made in respect of a document over 20 years old may be made with respect to any reproduction of that document admitted in evidence under this part in all respects as if the reproduction were the document.

122Reproductions made in other States

Where a reproduction is made of a document in another State or in a Territory and would be admissible in evidence in a proceeding in that State or Territory under a law of that State or Territory corresponding with this part, or a law of that State or Territory that a regulation declares to correspond with this part, the reproduction shall be admissible in evidence in a proceeding in Queensland in the same circumstances, to the same extent and for the like purpose as it would be admissible in evidence in a proceeding in that State or Territory under the law of that State or Territory.

123Judicial notice

Where any Act or law requires a court to take judicial notice of the seal or signature of any court, person or body corporate appearing on a document and a reproduction of that document is, pursuant to this part, admitted in evidence in a proceeding, the court shall take judicial notice of the image of the seal or signature on the reproduction to the same extent as it would be required to take judicial notice of the seal or signature on the document.

124A court may reject reproduction

Notwithstanding anything contained in this part, a court may refuse to admit in evidence a reproduction tendered pursuant to this part if it considers it inexpedient in the interests of justice to do so as a result of any reasonable inference drawn by the court from the nature of the reproduction, the machine or process by which it or, in the case of a print from a transparency, by which the transparency was made, and any other circumstances.

125Weight of evidence

In estimating the weight to be attached to a reproduction of a document admitted in evidence pursuant to this part, regard shall be had to the fact that, if the person making an affidavit pursuant to this part is not called as a witness, there has been no opportunity to cross-examine the person, and to all the circumstances from which any inference may reasonably be drawn as to—

(a)the necessity for making the reproduction or, in the case of a print from a transparency, the transparency or for destroying or parting with the document reproduced; or

(b)the accuracy or otherwise of the reproduction; or

(c)any incentive to tamper with the document or to misrepresent the reproduction.

126Provisions of part are alternative

The provisions of this part shall be construed as in aid of and as alternative to any provision of any other part, any other law or any practice or usage with respect to the production to a court or the admissibility in evidence in a proceeding of reproductions of documents.

128Regulation may exclude application of provisions

A regulation may declare that this part, or a provision of this part, does not apply to a document.

129Public Records Act 2002 not affected

This part does not affect the Public Records Act 2002 .

Part 8 Miscellaneous

129AOrder that evidence may be given in a different way

(1)This section applies in a proceeding that is not a criminal proceeding if either—

(a)the fact in issue is any of the following—

(i)the proof of handwriting;

(ii)the proof of documents;

(iii)the proof of the identity of parties;

(iv)the proof of authority; or

(b)a court considers—

(i)a fact in issue is not seriously in dispute; or

(ii)strict proof of a fact in issue might cause unnecessary or unreasonable expense, delay or inconvenience in a proceeding.

(2)The court may order that evidence of the fact may be given at the trial, or any other stage of the proceeding, in any way the court directs.

(3)Without limiting subsection (2), the court may order that evidence of a fact be given by—

(a)a statement on oath of information and belief; or

(b)the production of documents or entries in records; or

(c)the production of copies of documents or copies of entries in records.

(4)The court may at any time vary or revoke an order made under this section.

129BPerson may be examined without subpoena or other process

(1)A court may order a person who is present at the hearing of a proceeding and compellable to give evidence in the proceeding to give evidence or to produce a document or thing even if a subpoena or other process requiring the person to attend for that purpose has not been duly served on the person.

(2)If ordered to give evidence or to produce a document or thing, the person is subject to the same penalties and liabilities as if the person had been duly served with a subpoena or other process.

130Rejection of evidence in criminal proceedings

Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.

131Witnesses for defence to be sworn

(1)In a criminal proceeding, any person who gives evidence on behalf of the defence shall first take an oath in such manner as the person would by law be obliged to do if the person were a witness for the prosecution.

(2)Subsection (1) is subject to part 2 , division 1A .

131ACourt may order interpreter to be provided

In a criminal proceeding, a court may order the State to provide an interpreter for a complainant, defendant or witness, if the court is satisfied that the interests of justice so require.

132Actions for breach of promise of marriage

The plaintiff in an action for breach of promise of marriage shall not recover a verdict unless the plaintiff’s testimony is corroborated by some other material evidence in support of such promise.

132AAdmissibility of similar fact evidence

In a criminal proceeding, similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, must not be ruled inadmissible on the ground that it may be the result of collusion or suggestion, and the weight of that evidence is a question for the jury, if any.

132BEvidence of domestic violence

(1)This section applies to a criminal proceeding against a person for an offence defined in the Criminal Code , chapters 28 to 30.

(2)Relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding.

(3)In this section—

domestic relationship means a relevant relationship under the Domestic and Family Violence Protection Act 2012 , section 13 .

Note—

Under the Domestic and Family Violence Protection Act 2012 , section 13 , a relevant relationship means an intimate personal relationship, a family relationship or an informal care relationship, as defined under that Act.

132CFact finding on sentencing

(1)This section applies to any sentencing procedure in a criminal proceeding.

(2)The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.

(3)If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.

(4)For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.

(5)In this section—

allegation of fact includes the following—

(a)information under the Penalties and Sentences Act 1992 , section 15 or evidence given at a hearing in relation to an order under part 3A of that Act;

(b)information under the Youth Justice Act 1992 , section 150 (3) or in a pre-sentence report under section 151 of that Act;

(c)information given to the court under the Penalties and Sentences Act 1992 , section 179K;

(d)other information or evidence.

133Impounding documents

Where a document has been tendered or produced before a court, the court may, whether or not the document is admitted in evidence, direct that the document shall be impounded and kept in the custody of an officer of the court or of another person for such period and subject to such conditions as the court thinks fit.

133ADNA analysts

(1)The chief executive of the department within which the Hospital and Health Boards Act 2011 is administered, if satisfied the officer has the necessary qualifications and experience to be a DNA analyst, may appoint as a DNA analyst—

(a)a public service officer employed in the department; or

(b)a health service employee employed in the department under the Hospital and Health Boards Act 2011 .

(2)The appointment takes effect on the day it is notified in the gazette.

(3)Subsection (4) applies if the commissioner of the police service has entered into a DNA arrangement with a laboratory under the Police Powers and Responsibilities Act 2000 , section 488B (1) .

(4)The chief executive officer, however described, of the laboratory may, by written notice, appoint an employee of the laboratory as a DNA analyst if satisfied the employee has the necessary qualifications and experience to be a DNA analyst.

(5)The appointment takes effect—

(a)on the day the notice is given to the employee; or

(b)if a later day is stated in the notice, the later day.

134Power to appoint a government printer

The Governor in Council may appoint a government printer for the State.

134AProduction of documents by agencies in relation to civil proceedings

(1)A person who is a party to a civil proceeding may make written application to the principal officer of an agency to produce for inspection a document that—

(a)is in the possession of, or under the power of, the agency; and

(b)is relevant to an issue in the proceeding;

if the agency, the principal officer, or a member, officer or employee of the agency, could be ordered, on the application of the person, to produce the document in the proceeding.

(2)The principal officer may permit the person, on payment of the prescribed fee, to inspect the document, and take a copy of, or an extract from, the document, at a time and place nominated by the principal officer.

(3)If the principal officer permits the person to inspect and take a copy of, or an extract from, the document, the principal officer, and all persons acting on behalf of the principal officer, are entitled to the same protection as they would have had if the acts concerned had been carried out in obedience to a process of the Supreme Court.

(4)The principal officer is not required to notify another party to the proceeding of—

(a)the making of the application; or

(b)any action taken in relation to the application.

(4A)The principal officer may delegate his or her powers under this section to an officer or employee of the principal officer’s agency.

(4B)Also, the principal officer of a public safety entity under the Public Safety Business Agency Act 2014 may delegate the officer’s powers under this section to an appropriately qualified person in the Public Safety Business Agency.

(5)Subject to subsection (6), this section does not affect—

(a)the operation of any law relating to the disclosure or nondisclosure of information; or

(b)the operation of another law that authorises the inspection or copying of a document otherwise than as provided in this section; or

(c)the power of a court to order the inspection or production of a document.

(6)If a document mentioned in subsection (1) is a document that contains information to which the Hospital and Health Boards Act 2011 , section 142 (1) applies, the document is, for the purposes of section 143 of that Act, information that is required or permitted to be given under this Act.

(7)In this section—

agency means—

(a)a department; or

(b)a public authority, other than a prescribed entity, within the meaning of the Right to Information Act 2009 , section 16 ; or

(c)a person or body declared by regulation to be an agency;

but does not include a person or body declared by regulation not to be an agency.

principal officer means—

(a)in relation to a department—the chief executive of the department; or

(b)in relation to an agency for which a regulation declares an officer to be the principal officer—the holder of the office; or

(c)in relation to another agency—

(i)if it is an incorporated body that has no members—the person who manages the body’s affairs; or

(ii)if it is a body (whether or not incorporated) that is constituted by 1 person—the person; or

(iii)if it is a body (whether or not incorporated) that is constituted by 2 or more persons—the person who is entitled to preside at a meeting of the body at which the person is present.

134BApproval of forms

(1)The chief executive may approve forms for—

(a)anything for which this Act requires or permits an approved form to be used; or

(b)another use under this Act.

(2)Subsection (1)(b) does not apply to forms for court proceedings.

135Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)A regulation may be made about—

(a)fees to be charged under this Act; or

(b)the payment of fees and expenses for, or incurred in, taking evidence under part 3 , division 2 .

Part 9 Transitional and declaratory provisions

Division 1 Evidence Amendment Act 2000

136Transitional—Evidence Amendment Act 2000

(1)Section 132C applies to a sentencing procedure regardless of whether the offence or the conviction for the offence giving rise to the sentencing procedure happened before or after the commencement of this section.

(2)In this section—

conviction means a finding of guilt, or the acceptance of a plea of guilty, by a court.

sentencing procedure means a sentencing procedure started after the commencement of this section.

Division 1A Justice and Other Legislation Amendment Act 2003

136ADeclaratory provision for Justice and Other Legislation Amendment Act 2003

To remove any doubt, it is declared that the chief executive (premiers) has always had the powers mentioned in section 58 (1) and (2).

Division 2 Evidence (Protection of Children) Amendment Act 2003

137Definitions for div 2

In this division—

amending Act means the Evidence (Protection of Children) Amendment Act 2003 .

commencement day means—

(a)for section 138 —the day the amending Act, section 56 commences; or

(b)for section 139 —the day the amending Act, section 57 commences; or

(c)for sections 140 , 141 and 142 —the day the amending Act, section 60 commences.

originating step, for a proceeding, means—

(a)the arrest of the defendant in the proceeding; or

(b)the making of a complaint under the Justices Act 1886 , section 42 in relation to the defendant in the proceeding; or

(c)the serving of a notice to appear on the defendant in the proceeding under the Police Powers and Responsibilities Act 2000 , section 382 .

138Communications between a husband and wife

Section 8 (3) applies to communications whether made before or after the commencement day.

139Evidence admitted under repealed s 9

(1)Section 9D applies to evidence admitted before the commencement day under repealed section 9 as if the evidence had been admitted under section 9A .

(2)In this section—

repealed section 9 means section 9 as in force before the commencement day.

140Committal proceeding

Part 2 , division 4A , subdivision 2 applies to a committal proceeding only if an originating step for the proceeding is taken on or after the commencement day.

141Prerecording of evidence for a summary trial

Part 2 , division 4A , subdivision 3 applies to a summary trial for a relevant offence only if an originating step for the proceeding is taken on or after the commencement day.

142Prerecording of evidence for a trial on indictment

Part 2 , division 4A , subdivision 3 applies to a trial on indictment for a relevant offence only if the indictment is presented on or after the commencement day.

Division 3 Cross-Border Law Enforcement Legislation Amendment Act 2005

143Witness anonymity certificates

(1)This section applies to a witness anonymity certificate given under section 21D of the pre-amended Act.

(2)The prescribed sections continue to apply in relation to the witness anonymity certificate as if the Cross-Border Law Enforcement Legislation Amendment Act 2005 , part 3 had not commenced.

(3)In this section—

pre-amended Act means this Act as in force before the commencement of the Cross-Border Law Enforcement Legislation Amendment Act 2005 , part 3.

prescribed sections means sections 21B to 21J of the pre-amended Act.

Division 4 Justice and Other Legislation Amendment Act 2005

144Statement made before proceeding by child or person with an impairment of the mind

(1)To remove any doubt, it is declared that amended section 93A applies to a proceeding that starts after the commencement of this section, regardless of when the conduct giving rise to the proceeding happened.

(2)A statement admitted into evidence in a proceeding before the commencement of this section that would be admissible under the amended section 93A if tendered in a proceeding after the commencement is taken to have always been admissible under section 93A .

(3)In this section—

amended section 93A means section 93A as amended by the Justice and Other Legislation Amendment Act 2005 .

proceeding includes a committal, a preliminary hearing, a trial and any rehearing or retrial arising out of, or any appeal from, an earlier proceeding.

145Definition chief executive (surveys)

It is declared that the amendment of the definition chief executive (surveys) by the Surveyors Act 2003 is, and has always been, as effective as it would have been if the definition had been located in schedule 3 rather than section 3 when the amendment commenced.

Division 5 Criminal Code and Other Acts Amendment Act 2008

146References to particular Criminal Code offences

(1)The definition offence involving violence in section 21AC applies as if it included a reference to the Criminal Code , sections 319A , 331 and 332 as in force at any time before their repeal by the amending Act.

(2)The definition prescribed offence in section 21M (3) applies as if it included a reference to the Criminal Code , section 338 as in force at any time before its repeal by the amending Act.

(3)The definition prescribed offence in section 21M (3) applies as if the reference to the Criminal Code , section 415 included a reference to the Criminal Code , sections 415 , 416 and 417 as in force at any time before their repeal by the amending Act.

(4)The definition prescribed special offence in section 21M (3) applies as if the reference to the Criminal Code , section 208 included a reference to the Criminal Code , section 209 as in force at any time before its repeal by the amending Act.

(5)In this section—

amending Act means the Criminal Code and Other Acts Amendment Act 2008 .

Division 6 Health and Other Legislation Amendment Act 2016

147Prescribed special offence taken to include references to Criminal Code , ss 208 and 209

The definition prescribed special offence in section 21M (3) applies as if it included a reference to—

(a)the Criminal Code , section 208 as in force at any time before its repeal by the Health and Other Legislation Amendment Act 2016 ; and

(b)the Criminal Code , section 209 as in force at any time before its repeal by the Criminal Code and Other Acts Amendment Act 2008 .

Division 7 Serious and Organised Crime Legislation Amendment Act 2016

148Special witnesses

An order or direction made or given under section 21A before the commencement continues to have effect as an order or direction made or given under the section as amended by the Serious and Organised Crime Legislation Amendment Act 2016 .

Division 8 Criminal Law Amendment Act 2017

149Definition for division

In this division—

amendment Act means the Criminal Law Amendment Act 2017 .

150Admissibility of particular copies of videorecordings made before commencement

Sections 21A, 21AM and 21AQ, as amended by the amendment Act, apply, and are taken always to have applied, to a copy of a videorecording on a separate data storage medium that was made before the commencement.

151Destruction of recordings made before commencement

Part 2 , division 4B , subdivision 3 , as inserted by the amendment Act, applies in relation to a recording whether the recording was made before or after the commencement.

152Application of DNA evidentiary certificate provision to proceedings started before commencement

Section 95A , as amended by the amendment Act, applies to a criminal proceeding whether the proceeding was started before or after the commencement.

Division 9 Victims of Crime Assistance and Other Legislation Amendment Act 2017

153Sexual assault counselling privilege

(1)Part 2 , division 2A applies to a proceeding for an offence, or a domestic violence proceeding, only if an originating step for the proceeding is taken on or after the commencement.

(2)Subsection (1) applies—

(a)for an offence—whether the act or omission constituting the offence happened before or after the commencement; or

(b)for a domestic violence proceeding—whether the ground for making the domestic violence order the subject of the proceeding arose before or after the commencement.

(3)In this section—

domestic violence proceeding means a proceeding relating to a domestic violence order under the Domestic and Family Violence Protection Act 2012 .

originating step, for a proceeding for an offence or a domestic violence proceeding, means—

(a)the arrest of the defendant in the proceeding; or

(b)the making of a complaint under the Justices Act 1886 , section 42 in relation to the defendant in the proceeding; or

(c)the serving of a notice to appear on the defendant in the proceeding under the Police Powers and Responsibilities Act 2000 , section 382 ; or

(d)the making of an application for, or the making of a decision by a court to make, the domestic violence order the subject of the proceeding.

Schedule 1 Examples of offices of a public nature established under an Act

section 42

1Auditor-general

2Chairperson of the CCC

3Chief executive of a department

4Chief executive officer of a local government

5Clerk of the Parliament

6Commissioner of the police service

7Director of public prosecutions

8Electoral commissioner

9Information commissioner

10Mayor of a local government

11Parliamentary counsel

12Public trustee

13Ombudsman

14Registrar-general

15Registrar of titles

16Solicitor-general

Schedule 3 Dictionary

section 3

affected child, for part 2 , division 4A , see section 21AC .

affidavit, for part 7 , see section 104 .

approved form see section 134B .

assumed name, for part 2 , division 5 , see section 21C .

audio link, for part 3A , see section 39C .

audio visual link means facilities, including closed-circuit television, that enable reasonably contemporaneous and continuous audio and visual communication between persons at different places.

authorised destruction day, for part 2 , division 4B , see section 21AZF (1).

before, for part 3A , see section 39C .

book of account, for part 5 , division 6 , see section 83 .

business, for part 7 , see section 104 .

CCC, for part 2 , division 5 , see section 21C .

chief executive officer, for part 2 , division 5 , see section 21C .

chief executive (surveys) means the chief executive of the department in which the Surveyors Act 2003 is administered.

child, for part 2 , division 4A , see section 21AD .

civil proceedings, for part 3 , division 3 , see section 35 .

conduct, for part 2 , division 5 , see section 21C .

convicted, for part 2 , division 5 , see section 21C .

conviction, for part 5 , division 5 , see section 78 .

copy, of a document, see section 4 .

corresponding court, for part 3 , division 2 , see section 25 .

corresponding law, for part 2 , division 5 , see section 21C .

corresponding witness identity protection certificate, for part 2 , division 5 , see section 21C .

corruption, for part 2 , division 5 , see section 21C .

counsel, a person for part 2 , division 2A , see section 14B .

counsel, for part 2 , division 4A , see section 21AC .

counselled person, for part 2 , division 2A , see section 14B .

counsellor, for part 2 , division 2A , see section 14B .

court—

(a)for part 5 , division 5 —see section 78 ; or

(b)for part 5 , division 6 —see section 83 ; or

(c)otherwise—means the court, tribunal, judge, justice, arbitrator, body or person before whom or which a proceeding is held or taken.

court location, for part 3A , see section 39C .

court name, for part 2 , division 5 , see section 21C .

criminal activity, for part 2 , division 5 , see section 21C .

criminal proceeding includes a proceeding wherein a person is charged with a simple offence, and an examination of witnesses in relation to an indictable offence.

defendant, for part 2 , division 4A , see section 21AC .

document includes, in addition to a document in writing—

(a)any part of a document in writing or of any other document as defined herein; and

(b)any book, map, plan, graph or drawing; and

(c)any photograph; and

(d)any label, marking or other writing which identifies or describes anything of which it forms part, or to which it is attached by any means whatever; and

(e)any disc, tape, soundtrack or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(f)any film, negative, tape or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(g)any other record of information whatever.

essential person, for a proceeding for part 2 , division 2A , see section 14B .

examiner, for part 3 , division 2 , see section 25 .

external location, for part 3A , see section 39C .

film includes a microfilm.

gazette includes any gazette, or part of a gazette, published by the government printer.

Example—

Queensland Government Gazette

investigation, for part 2 , division 5 , see section 21C .

judge means the member or members of a court.

judicial officer means a judge, magistrate or justices.

law enforcement agency, for part 2 , division 5 , see section 21C .

lawfully edited copy—

(a)of a videorecording of evidence given by a special witness or an affected child—means a copy of the videorecording that has been edited or otherwise changed under an approval given under section 21AZ ; or

(b)of a usable soundtrack of a videorecording containing the evidence of a special witness or an affected child—means a copy of the usable soundtrack of the videorecording that has been edited or otherwise changed under an approval given under section 21AZ .

machine copy, for part 7 , see section 104 .

minimum retention period, for part 2 , division 4B , see section 21AZE (4)(a).

offence involving violence, for part 2 , division 4A , see section 21AC .

offence of a sexual nature, for part 2 , division 4A , see section 21AC .

operative, for part 2 , division 5 , see section 21C .

original document, for part 7 , see section 104 .

overseas country—

(a)for part 3 , division 3 —see section 35 ; or

(b)for part 5 , division 3 —see section 67 .

participating State, for part 3A , see section 39C .

party, for part 2 , division 5 , see section 21C .

person with an impairment of the mind means a person with a disability that—

(a)is attributable to an intellectual, psychiatric, cognitive or neurological impairment or a combination of these; and

(b)results in—

(i)a substantial reduction of the person’s capacity for communication, social interaction or learning; and

(ii)the person needing support.

police service means the Queensland Police Service.

preliminary hearing, for part 2 , division 4A , see section 21AC .

prescribed country, for part 3 , division 2 , see section 25 .

presiding judicial officer, for part 2 , division 4B , see section 21AY .

principal registrar, of a court, means—

(a)for a Magistrates Court—the person holding appointment as the principal registrar of Magistrates Courts mentioned in the Magistrates Courts Act 1921 , section 3A(2); or

(b)for the District Court—the person appointed as the principal registrar under the District Court of Queensland Act 1967 , section 36(1); or

(c)for the Supreme Court—the person appointed as the principal registrar under the Supreme Court of Queensland Act 1991 , section 69(1).

proceeding—

(a)for part 2 , division 4A —see section 21AC ; or

(b)otherwise—means any civil, criminal or other proceeding or inquiry, reference or examination in which by law or by consent of parties evidence is or may be given, and includes an arbitration.

protected counselling communication, for part 2 , division 2A , see section 14A .

protected witness, for part 2 , division 6 , see section 21M .

Queensland court, for part 3A , see section 39C .

recognised court, for part 3A , see section 39C .

recording, for part 2 , division 4B , see section 21AY .

relevant court, for part 2 , division 5 , see section 21C .

relevant offence, for part 2 , division 4A , see section 21AC .

relevant proceeding, for part 2 , division 4A , see section 21AC .

relevant witness, for part 2 , division 4AA , see section 21AXC (1)(a).

religious representative, for part 2 , division 2A , see section 14B .

reproduce, for part 7 , see section 104 .

reproduction, for part 7 , see section 104 .

request, for part 3 , division 3 , see section 35 .

requesting court, for part 3 , division 3 , see section 36 .

sexual assault offence, for part 2 , division 2A , see section 14B .

special witness see section 21A .

statement includes any representation of fact, whether made in words or otherwise and whether made by a person, computer or otherwise.

statute, for part 5 , division 3 , see section 67 .

telegraph means a system of telecommunication operated under Commonwealth law.

telegraphic message means any message or other communication transmitted or intended for transmission or purporting to have been transmitted by telegraph.

telegraph office means an office or place established or used for receiving or transmitting telegraphic messages.

transparency, for part 7 , see section 104 .

tribunal, for part 3A , see section 39C .

undertaking includes public administration and any business, profession, occupation, calling, trade or undertaking whether engaged in or carried on—

(a)by the Crown (in right of the State of Queensland or any other right), or by a statutory body, or by any other person; or

(b)for profit or not; or

(c)in Queensland or elsewhere.

usable soundtrack, of a videorecording, see section 21AXB .

videorecorded means recorded as a videorecording.

videorecording means a recording, including the accompanying soundtrack, on any medium from which a moving image may be produced by any means.

witness identity protection certificate, for part 2 , division 5 , see section 21C .

Criminal

State of Himachal Pradesh Vs. Raj Kumar [SC 2018 JANUARY ]

10 Jan 2018 Advocatetanmoy

KEYWORDS:-CONVICTION RESTORED-

Capture

DATE:-January 8, 2018-

Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and frmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to be truthful in the given circumstances of the case. Once that impression is formed, it is necessary for the court to scrutinize the evidence more particularly keeping in view the drawbacks and infrmities pointed out in the evidence and evaluate them to fnd out whether it is against the general tenor of the prosecution case. Jeewan Lal (PW-1) is the son of the deceased Meena Devi residing with her and the accused in the same house, and a natural witness to speak about the occurrence.

ACTS: -Section 302 IPC –

SUPREME COURT OF INDIA

State of Himachal Pradesh Vs. Raj Kumar

[Criminal Appeal No. 31 of 2018 arising out of SLP (CRL.) No. 1204 of 2015]

R. BANUMATHI, J.

Leave granted.

2. This appeal preferred by the State challenges the judgment of the High Court of Himachal Pradesh in Criminal Appeal No.559 of 2008 acquitting the respondent under Section 302 IPC by setting aside his conviction and the sentence of life imprisonment imposed upon him by the trial court.

3. Husband of deceased Meena Devi passed away about eleven years ago prior to the incident. Meena Devi was residing with her son Jeewan Lal (PW-1), daughter Rekha Devi (PW-2) and accused Raj Kumar (brother-in-law) in the joint family house. On 23.08.2007 at 08.30 p.m., while Meena Devi was taking meal along with her family, respondent-accused came there in drunken condition and started abusing Meena Devi and her children PW-1 and PW-2 without any reason and threatened to kill them. Barf Devi-grandmother of PW-1 who was present in the house took Jeewan Lal (PW-1) to adjoining sleeping room and bolted the room from outside. She asked Rekha Devi (PW-2) daughter of deceased to go to the house of her maternal uncle Anant Ram (PW-3).

While being inside the room, PW-1 heard the cries of his mother Meena Devi and from the window saw the respondent-accused taking her mother towards the house of another accused Om Prakash. After few hours, accused opened the door and told him that his mother had run away from the house and that he should tell the same to his maternal uncle Anant Ram (PW-3). Under such threat from respondent-accused and another accused Ramesh Kumar, PW-1 told his maternal uncle (PW-3) that his mother had run away from the house. On 24.08.2007 at about 02.00 a.m., Anant Ram (PW-3) came to the house of accused. Thereafter, PW-1 and PW-3 went to Dharampur Police Station and informed the police about missing of Meena Devi.

On 25.08.2007, they again went to the police station Dharampur and at about 11.00-11.30 a.m; at the time Anant Ram (PW-3) received a phone call from Nek Ram informing that the dead body of deceased Meena Devi was found hanging from a tree at Ghat Bahu forest. Thereafter, PW-1 and PW-3 along with police party went to the spot and found that the dead body of Meena Devi was hanging from the branch of a pine tree with a plastic rope, tied around her neck. Statement of PW-1 was recorded, based on which, case in FIR No.250 of 2007 was registered under Section 302 IPC and Section 201 read with Section 34 IPC.

4. Initial investigation was conducted by Sub-Inspector of Police Sat Prakash (PW-20) and further investigation was conducted by Inspector of Police LR Thakur (PW-22). PW-22 prepared spot map, inquest and conducted further investigation. Dr. Vivek Banyal (PW-24) conducted autopsy and opined that “….death was because of haemorrhagic shock due to rupture of spleen and anti-mortem injuries suggesting gagging. Hanging was post-mortem”.

Accused Raj Kumar was taken to custody on 25.08.2007 and he was interrogated. Confession statement of accused was recorded on 27.08.2007 which led to the recovery of a lady shirt from the room of the house of accused Ramesh Kumar which was under construction. Upon completion of investigation, chargesheet was fled against accused Raj Kumar, Ramesh Kumar, Om Prakash and Barf Devi under Section 302 IPC and Section 201 read with Section 34 IPC.

5. To bring home the guilt of the accused, in the Sessions Court, prosecution has examined as many as twenty four witnesses and marked number of exhibits and material objects. In the questioning under Section 313 Cr.P.C., the accused denied all the incriminating circumstances and evidence and pleaded that he is innocent. The accused has not offered any explanation on the death of deceased Meena Devi.

6. Based upon the evidence of Anant Ram (PW-3) and Bhindra Devi (PW-15), the trial court held that Meena Devi suffered harassment at the hands of her brother-in-law (respondent-accused). The trial court held that Jeewan Lal (PW-1) son of the deceased had spoken about the overt act of the accused in beating the deceased and that the accused taking away Meena Devi from the house. The trial court held that no reasonable explanation was forth coming from the accused for the death of the deceased Meena Devi who was living jointly with the respondent-accused. On those fndings, the trial court convicted the respondent-accused under Section 302 IPC and Section 201 IPC read with Section 34 IPC and sentenced him to undergo imprisonment for life. Other accused Ramesh Kumar and Om Prakash were acquitted. Accused Barf Devi remained absconding.

7. In the appeal preferred by the accused, the High Court observed that Jeewan Lal (PW-1) son of the deceased, while deposing as witness before the court in narrating the whole incident, had made improvements and hence, PW-1 is not a reliable witness. The High Court further held that there were bald assertions regarding dispute, but no specifc motive was attributed to the accused for committing murder of the deceased Meena Devi. Observing that the case of prosecution suffers from serious infrmities, the High Court allowed the criminal appeal fled by the respondent-accused thereby setting aside the conviction and the sentence of life imprisonment imposed upon him. Being aggrieved, the State is before us.

8. We have heard the learned counsel for the parties and perused the impugned judgment and materials on record.

9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and frmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:-

“12. ………..The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and frmly established; that those circumstances should be of a defnite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.”

The same principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v. Rajendran (1999) 8 SCC 679.

11. After death of her husband, Meena Devi was living with her children viz. Jeewan Lal (PW-1) and Rekha Devi (PW-2) along with the accused Raj Kumar in the joint family. In their evidence, PW-1 and PW-2 clearly stated that on 23.08.2007, respondent came in drunkard condition and threatened to kill them. Jeewan Lal (PW-1) who is the son of deceased Meena Devi clearly stated that he had heard the cries of his mother and also seen accused taking his mother towards the house of accused Om Parkash.

On 25.08.2007, body of Meena Devi was found hanging from a pine tree in the nearby forest. PW-24-Dr. Vivek Banyal who conducted the autopsy has clearly said that “anti-mortem injuries were caused due to gagging and hanging process of dead body was post-mortem”.

12. In his evidence, Jeewan Lal (PW-1) stated that he was threatened by the accused Om Parkash to make telephonic call to his maternal uncle Anant Ram (PW-3) that Meena Devi had run away from the house and under such threat Jeewan Lal (PW-1) informed Anant Ram (PW-3) accordingly. After Anant Ram (PW-3) came to the village at 02.00 a.m. on 24.08.2007, PW-1 and PW-3 went to P.P. Dharampur and informed them about missing of Meena Devi. Meena Devi was living with her brother-in-law/accused along with her children. If Meena Devi was so missing, the natural conduct of the accused was to inform the police and also Anant Ram (PW-3). But that was not done.

In view of Section 106 of the Evidence Act, burden is cast upon the accused, being the inmate of the house to give a cogent explanation as to how Meena Devi died. No reasonable explanation is forthcoming from the accused as to why he had neither lodged the complaint nor informed the police about the missing of Meena Devi. The respondent-accused being inmate of the house cannot get away by simply keeping quiet and offering no explanation. This is a strong militating circumstance against the respondent indicating that he might be responsible for the commission of the offence.

13. The motive attributed to the accused is that he had frequently quarrelled with the deceased and also assaulted her. A dispute is also suggested pertaining to the land of one Swami who wanted to give his property solely to the deceased Meena Devi which was not acceptable to the accused. Yet another motive attributed to the accused was his greed for the fxed deposit of Rs.1,20,000/- which had become due payable to the deceased on 13.08.2007. PW-15 Bhindra Devi, sister-in-law of the deceased in her evidence had clearly stated that as and when Meena Devi visited her house, Meena Devi used to tell her about the suffering meted out to her by the accused Raj Kumar.

Further, Bhindra Devi (PW-15) had clearly spoken about the motive attributed to the accused. From the evidence of PW-15, it is brought out that the accused Raj Kumar is a chronic drunkard. On previous occasion, respondent-accused had beaten Meena Devi and he had entered into compromise with Meena Devi by assuring her that he would not beat her in future. Evidence of PW-15 as to the motive attributed to the accused was not properly appreciated by the High Court.

14. Jeewan Lal (PW-1) has clearly spoken as to the attack on Meena Devi by the accused on the night of 23.08.2007 and the subsequent threat to PW-1 by the accused and one Om Prakash. The trial court which had the opportunity of seeing and observing demeanour of the witnesses held that Jeewan Lal (PW-1) is a trustworthy witness. While so, the High Court was not right in doubting the version of Jeewan Lal (PW-1) on the ground that PW-1 made improvements in his version. In his statement (Ex.P/A) dated 25.08.2007, Jeewan Lal (PW-1) did not disclose the participation qua accused Nos. 2 and 3 namely Ramesh Kumar and Om Parkash in the commission of the offence. Evidence of Jeewan Lal (PW-1) cannot be doubted simply because names of Ramesh Kumar and Om Prakash were not mentioned in his statement recorded on 25.08.2007 immediately after bringing down the hanging body of Meena Devi from the tree.

The circumstances in which PW-1 was placed at that time, is to be kept in view. PW-1 was only aged nineteen years. On the night of 23.08.2007, he had heard the cries of his mother at the time when she was beaten. PW-1 and PW-3 had been searching for Meena Devi for more than twenty four hours that is from 24.08.2007 to 25.08.2007, only to fnd her dead. PW-1 was already threatened by accused Om Parkash to inform Anant Ram (PW-3) that Meena Devi had run away. On 25.08.2007, when PW-1’s statement was recorded, he must have been in trauma and fear psychosis. In such circumstances, omission to mention the names of Om Parkash and Ramesh Kumar in his statement (Ex.P/A) does not render PW-1’s evidence untrustworthy. Upon proper appreciation of the evidence, the trial court observed that evidence of PW-1 inspires confdence of the court. While so, in our view, the High Court ought not to have doubted the version of PW-1 and his credibility.

15. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to be truthful in the given circumstances of the case. Once that impression is formed, it is necessary for the court to scrutinize the evidence more particularly keeping in view the drawbacks and infrmities pointed out in the evidence and evaluate them to fnd out whether it is against the general tenor of the prosecution case. Jeewan Lal (PW-1) is the son of the deceased Meena Devi residing with her and the accused in the same house, and a natural witness to speak about the occurrence. Evidence of PW-1 is cogent and natural and is consistent with the prosecution case. The High Court was not right in doubting the evidence of PW-1 on the ground of alleged improvements made by Jeewan Lal (PW-1) and rejecting his evidence on the premise that there were certain improvements.

16. As pointed out by the Sessions Judge, deceased Meena Devi was last seen alive in the company of accused Raj Kumar and the accused did not satisfactorily explain the missing of deceased Meena Devi and the same is a strong militating circumstance against the accused. Meena Devi who was residing in the same house with the accused and was last seen alive with the accused, it is for him to explain how the deceased died. The accused has no reasonable explanation as to how the body of Meena Devi was found hanging from the tree. As held in Kashi Ram case, it is for the accused to explain as to what happened to the deceased. If the accused does not throw light on the fact which is within his knowledge, his failure to offer any explanation would be a strong militating circumstance against him.

17. As pointed out earlier, in his questioning under Section 313 Cr.P.C., the accused simply denied the evidence of incriminating circumstance put to him and pleaded that he is innocent. A feeble attempt was made by the defence to suggest that the deceased consumed poison and committed suicide. Viscera of deceased Meena Devi was sent to FSL Tungand. As per FSL report, no poison was detected in the viscera of the deceased. In our considered view, the trial court rightly rejected the plea suggested by the defence.

18. As pointed out earlier, in a catena of judgments, this Court held that when conviction is based on circumstantial evidence, there should not be any gap in the chain of circumstances; the accused is entitled to the beneft of doubt. In the present case, by cogent and convincing evidence, prosecution has established the circumstances:-

(i) Motive (evidence of PW-15);

(ii) accused beating the deceased and taking her away (Evidence of PW-1);

(iii) Death of Meena Devi is homicidal (evidence of PW-24);

(iv) Conduct of accused in not reporting to the police about missing of the deceased Meena Devi; and

(v) Absence of explanation from the accused as to the death of the deceased.

The circumstances relied upon by the prosecution are proved by cogent and reliable evidence. The circumstances cumulatively taken form a complete chain pointing out that the murder was committed by the accused and none-else.

19. In the appeal, the High Court has not properly appreciated the evidence and intrinsic worth of testimony of prosecution witnesses and the formidable circumstances established by the prosecution against the accused. The High Court entertained fanciful doubts and rejected the credible evidence of Jeewan Lal (PW-1) on slender grounds. Due to mis-appreciation of evidence, the High Court set aside the conviction and caused a miscarriage of justice. Reasonings of the High Court for acquitting the accused are unsustainable and the impugned judgment cannot be sustained.

20. In the result, the impugned judgment is set aside and the appeal is allowed. The conviction of the respondent under Section 302 IPC and the sentence of life imprisonment imposed on him by the trial court are affirmed. The respondent shall be taken into custody to serve the remaining sentence.

(R. BANUMATHI)

(UDAY UMESH LALIT)

New Delhi;

January 8, 2018

CIVIL, Criminal

Kuna @ Sanjaya Behera Vs. State of Odisha[SC 2017 NOVEMBER]

23 Nov 2017 Advocatetanmoy

KEYWORDS: MURDER

Conviction can be based on a testimony of a single eye witness if he or she passes the test of reliability and that it is not the number of witnesses but the quality of evidence that is importan.
The ‘reasonable doubt’ is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words “proved”, “disproved” and “not proved” lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, “believe it to exist” and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence.

ACT: Sections 433 and 433-A of the Code of Criminal Procedure, 1973

DATE: NOVEMBER 17, 2017

BENCH: [N.V. RAMANA] [AMITAVA ROY]

SUPREME COURT OF INDIA

Kuna @ Sanjaya Behera Vs. State of Odisha

[Criminal Appeal No. 677 of 2010]

AMITAVA ROY, J.

1. The appellant, successively convicted by both the courts below along with one Pravati Behera under Section 302 of the Indian Penal Code, 1860 (for Short, hereinafter to be referred to as “IPC/Code”) along with Section 34 of the Code is in appeal seeking remedial intervention.

2. Whereas the Trial Court by the judgment and order dated 26.1.2001, as stated hereinbefore, convicted the appellant and the co-accused Pravati Behera, the High Court by the verdict impugned, though has affirmed the conviction of both, had left the co-accused at liberty to move an application for premature release from the jail and for appropriate orders under Sections 433 and 433-A of the Code of Criminal Procedure, 1973 (for short, hereinafter to be referred to as “Cr.P.C.”). Noticeably, the appellant and co-accused had been charged along with Section 302 IPC for the offence under Section 203 as well but were acquitted thereof by the Trial Court. Though an appeal was preferred by the State against such acquittal, the High Court has affirmed their exoneration as well.

3. We have heard Mr. Krishnan Venugopal, learned senior counsel for the appellant and Mr. Shibashish Misra for the respondent.

4. The prosecution case unfolds with a written information lodged by Premananda Behra (PW12) with the police on 20.2.2000, whereby the unnatural death of his brother Santosh Behera by hanging from the roof of a shed adjacent to his (deceased) house, was reported. In the course of the investigation, following the registration of said information, Niranjan Behera (PW1) disclosed to Daitari Behera (PW5) that the appellant along with the co-accused Pravati Behera had in the intervening night of 19/20.2.2000 murdered the deceased in his 3 house and thereafter had suspended his dead body from the roof of the nearby shed. PW1 claimed to have witnessed the incident of murder. Following this information, the investigation took a different turn. The appellant and the co-accused were arrested and eventually, charge-sheet was laid against them.

5. Notably, on 26.2.2000, Gunahari Behera (PW6) and Makhan Behera (PW8) also came to the police station and reported that PW1 had disclosed to them as well to have witnessed the appellant and the co-accused committing murder of Santosh Behera (deceased) in his house and thereafter, hanging the dead body from the roof of the nearby shed. The investigating officer in the process of investigation, amongst others caused the inquest of the dead body to be made, prepared a spot map Ex. P-11, effected seizure, amongst others inter alia of a rope and also got the post-mortem of the dead body done before submitting the charge-sheet as mentioned hereinabove. The formal FIR was registered on 26.2.2000 under Sections 302/203 read with Section 34 IPC.

6. At the trial, the accused persons were charged under Sections 302/203/34 IPC. They having denied the allegations, were made to stand trial. The prosecution examined as many as 16 witnesses, and after recording the statements of the accused persons under Section 313 Cr.P.C. and on a consideration of the materials on record, the Trial Court convicted the appellant and co-accused under Section 302 IPC read with Section 34 of the Code and sentenced them to undergo imprisonment for life and to pay fine of Rs. 100/-, in default to suffer R.I. for 30 days.

7. In recording the conviction, the Trial Court laid utmost emphasis on the testimony of PW1, who apart from narrating the incident of murder, also deposed about the extra-marital relationship between the accused persons, though they were related as nephew and aunt. Reliance was also placed on the evidence of Musimani Behera (PW3), the mother of the deceased, who, perceived to have hinted at well to this unacceptable liaison. The Trial Court noted the opinion of Dr. Rupabhanu Mishra (PW11), who conducted the post-mortem examination that the cause of death of Santosh Behera was asphyxia as a result of constriction of the neck and not due to hanging by rope. The Trial Court, however discarded the prosecution case of illicit relationship between the accused persons and the motive of murder stemming therefrom. It was however of the view that lack of motive notwithstanding, the testimony of PW1, PW5, PW6 and PW8 taken together proved the charge against the accused persons and, therefore, returned the finding of guilt against them, qua the offences for which they had been charged.

8. Both the appellant and co-accused preferred separate appeals before the High Court and as hereinbefore stated, by the decision assailed, their conviction under Section 302/34 IPC and the sentence awarded thereupon was affirmed. The High Court, in determining so, sustained the prosecution’s plea of motive of murder founded on extra-marital relationship between the accused persons and arrived at the conclusion drawing sustenance from the evidence of PW1 as well as PW3, the mother of the deceased, who testified to have rebuked both of them for their deplorable conduct. The High Court, as well believed the version of the incident, as narrated by PW1 and disclosed to PW5, PW6 and PW8 albeit after a lapse of three days. The High 6 Court accepted the explanation of PW1 for the delay in such disclosure that the appellant had threatened him with dire consequences, if he did so.

9. Mr. Krishnan Venugopal, learned senior counsel for the appellant has emphatically urged that as the testimony of PW1, the sole eye witness, as claimed by the prosecution, is wholly unbelievable, the conviction of the appellant is palpably illegal and is liable to set-aside. Apart from contending that the FIR filed after six days of the incident was inexplicably delayed rendering the prosecution case unworthy of any credit, the learned senior counsel maintained that the High Court has grossly erred in accepting that the motive behind the murder was the illicit relationship between the accused persons, necessitating the elimination of the deceased.

The learned senior counsel was particularly critical of the unnatural conduct of PW1, who incomprehensibly remained indifferent and silent though his uncle was murdered in his view and that the incident, according to him, ranged for about an hour. Further, his unexplained silence about the gruesome murder by the accused persons for about three days also rendered him wholly untrustworthy, he urged. Mr. Krishnan argued as well that not only PW1 at the relevant time was admittedly in an intoxicated state, his presence at the place of occurrence was not free from doubt.

The learned senior counsel underlined that it being in the evidence that there were several houses of the close relatives of the deceased and PW1 in the locality, the claim of PW1 to be a silent eye witness to the incident, is wholly unbelievable. The learned senior counsel insisted as well that in absence of any material on record that the area was sufficiently lighted, it was wholly unacceptable that PW1 could see the incident from his house at a distance of 15 cubits. In the attendant facts and circumstances, Mr. Venugopal maintained that the conviction of the appellant on the testimony of a solitary witness, whose version was laden with inconsistencies, absurdities, and improbabilities, is patently illegal and cannot, in any view of the matter, be sustained in law.

He discarded the evidence of PW5, PW6 and PW8, relied upon by the two courts below, on the ground that their testimonies were wholly inconsequential being in the nature of “hearsay”, they having derived the knowledge of the incident from PW1, as reported to them by him. Mr. Venugopal has urged that if the version of PW1 is disbelieved, as it ought to be, in view of the inherent incongruities, the other materials on record do not unerringly evince the complicity of the accused persons in the offence and thus, the appellant is liable to be acquitted.

He argued as well that the injuries enumerated in the inquest report and the medical evidence/post-mortem report, also are inconsistent and contradictory in description, thus rendering the prosecution version highly improbable. The learned counsel emphasised that the evidence on record by no means convincingly establish the illicit relationship between the accused persons and that the High Court did fall in error in accepting the same. The following decisions were cited in endorsement of the arguments advanced.

1. Anil Phukhan vs. State of Assam1

2. Ramji Surya Padvi and Another vs. State of Maharashtra2

3 Chuhar Singh vs. State of Haryana3 1 (1993) 3 SCC 282 2 (1983) 3 SCC 629 3 (1976) 1 SCC 879 9

4. State of A.P. vs. Patnam Anandam4

5. Mahamadkhan Nathekhan vs. State of Gujarat5

6. Budha Satya Venkata S. Rao and Others vs. State of A.P.6

7. Niranjan Panja vs. State of West Bengal7

8. Nagraj vs. State represented by Inspector of Police, Salem Town, Tamil Nadu8

10. In refutation, the learned counsel for the respondent-state has asserted that the evidence of the sole eye witness PW1 is coherent, consistent and cogent and is fully complemented by medical evidence and thus the prosecution having been able to prove the charge beyond all reasonable doubt, the conviction and sentence of the appellant and his co-accused does not merit interference.

Having regard to the vivid narration of the incident in minute details, as provided by PW1, the courts below were perfectly justified in relying on his sole testimony, he urged. As the medical evidence, mentioning 4 (2005) 9 SCC 237 5 (2014) 14 SCC 589 6 1994 Supp(3) SCC 639 7 (2010) 6 SCC 525 8 (2015) 4 SCC 739 10 the cause of death, is wholly corroborative of the version of PW1, there is no scope to doubt the culpability of the accused persons, he argued.

The learned counsel dismissed the demur of the defence that the evidence of PW1 was vitiated by contradictions, embellishments and inconsistencies.

According to Mr. Misra, the statement on oath of PW1 is amply supported by that of Kumari Nomita Behera (PW2), the daughter of the deceased and PW12, who, in the next morning, did detect the dead body of the deceased in a hanging posture from the roof of the adjacent shed, as deposed by PW1. As the testimony of PW1 together with that of PW3, the mother of the deceased persuasively prove the illicit relationship between the accused persons, the High Court was justified in accepting the same to be the motive for the offence, in the attendant facts and circumstances of the case, he insisted. The learned counsel for the respondent urged that as PW1 had been threatened with death by the appellant, if he dared to disclose the commission of offence, the delay on the part of the witness (PW1) to confide about the same in PW5, PW6 and PW8 after three days and the filing of the FIR after six days per se, is not fatal for the prosecution. The decision of this Court in Gulam Sarbar vs. State of Bihar9 was cited to reinforce the contention that when ocular evidence is in conformity with the medical evidence, conviction based thereon is legal and valid.

11. To appropriately appreciate the competing assertions, it is expedient to evaluate the evidence having a direct bearing on the offence allegedly committed for the offence involved. PW1, who is the cousin brother of the appellant and incidentally the nephew of the co-accused Pravati Behera, deposed on oath that there was a lingering love affair between the accused persons from before the occurrence and that he had seen them in a compromising position in the house of the deceased, six months’ prior to the incident. The witness stated that he informed about this to the mother of the deceased, who rebuked the accused persons.

He stated that in the night of occurrence at 9.30 p.m., he had gone to witness a video show in the village, where the children of Parvati Behra, the co-accused were also present. According to him, in the course of the show, the appellant asked him to accompany him for liquor and though 9 (2014) 3 SCC 401 12 the witness initially resisted, he eventually left the video show with the appellant. He stated further that they then went to the house of Baisakhu Behera, where the appellant purchased liquor and consumed the same and forced the witness as well to drink.

The witness stated that they then proceeded towards their respective homes and when they were nearing their houses, the appellant concealed himself in a lane near the house of the witness. PW1 stated that at that time, he saw the deceased and Pravati Behera coming out of their house to ease themselves. On their way back to the house, Pravati Behera entered first and when the deceased was about to enter, the appellant struck him twice from the back, as a result of which, he (deceased) fell down.

According to the witness, the appellant sat on the chest of the deceased and pressed his neck by his hands and Pravati Behera covered his mouth with her hands, as a result of which the deceased soon became suffocated and died. The witness stated that thereafter the accused persons brought a rope, tied it around the neck of the deceased and suspended the dead body from the roof of the adjacent shed. Thereafter, the appellant locked Pravati Behera in the house from outside and threatened to kill him, if he disclosed the offence to anyone, whereafter the witness returned home. PW1 stated that it was three days thereafter that he narrated the incident to PW5, PW6 and PW8.

12. In cross-examination, the witness in substance stated that his house, that of the deceased, PW12 and other relatives were located nearby and that the courtyard in between his house and that of the deceased measured about 15 cubits . The witness conceded that there were about 150 to 200 houses adjacent to his house, situated at a distance of 20 to 25 cubits. He further stated that at that point of time, he was little intoxicated, and he was then inside his compound. PW1 deposed as well that though the occurrence took place for about an hour, he did not raise any alarm asking for help.

He admitted that on the next day, though about 5000 people had gathered, he did not disclose the incident either to them or to the police. He however sought to explain his conduct by stating that he did not do so as he had been threatened by the appellant but after three days, he gathered courage and informed PW5, PW6 and PW8 of the incident.

13. PW3, the mother of the deceased deposed that she had rebuked the accused persons on several occasions on noticing “secret talks’ between them. The testimony of PW5 and PW6 in essence is that on 20.2.2000, PW1 disclosed to them the incident and the fact that he had witnessed the same. PW8 stated that about 5/6 days after the incident, when he asked PW1 about the same, he disclosed to him stating that the appellant and Pravati Behera had committed murder of Santosh Behera. To all these three witnesses, as stated by them, PW1 disclosed in sequence the facts, as narrated by him on oath.

14. Dr. Rupabhanu Mishra (PW11), who performed the post-mortem examination on the dead body of the deceased had apart from mentioning the external injuries by way of abrasions etc. opined that death was due to asphyxia by pressing of neck and was not due to hanging by rope. PW12, as already alluded to hereinabove, stated on oath that on 20.2.2000, he had gone to the house of the deceased to hand over the keys of his Sweet Meat Shop, where the deceased was employed, but was told by his wife from inside the house that he (deceased) had gone out by locking the door from outside.

The witness stated that it was 15 then 5/5.30 a.m. and when he returned with his torch light, he detected the dead body of Santosh Behera hanging from the roof of adjacent shed by a rope. He then requested PW5 to write a report which he thereafter lodged with the police. S.I. Narendra Kumar Sarangi (PW16) is the Investigating Officer, who enumerated the steps taken by him during the investigation and proved amongst others Ex P-11, the spot map.

15. The accused persons in response to the questions, laying the incriminating evidence against them denied the correctness thereof and stood by their plea of innocence.

16. Before recording the final conclusions on the basis of the evidence on record, beneficial it would be to briefly note the legal propositions enunciated in the authorities cited at the Bar.

17. That conviction can be based on a testimony of a single eye witness if he or she passes the test of reliability and that it is not the number of witnesses but the quality of evidence that is important, have been propounded consistently in Anil Phukhan1, Ramji Surya2, Patnam Anandam4 and Gulam Sarbar9 with the apparent emphasis that evidence must be weighed and not counted, decisive test being whether it has a 16 ring of truth and it is cogent, credible, trustworthy or otherwise.

18. That in a case where the charge is sought to be proved only on circumstantial evidence, motive plays an important part in order to tilt the scale was, amongst others underscored in Mohmadkhan Nathekhan.

19. With reference to Section 3 of the Evidence Act, which defines “proved”, “disproved” and “not proved”, this Court in Lokeman Shah and another vs. State of West Bengalrecalled its observations in M. Narsinga Rao vs. State of A.P., 2001 Crl.L.J. 515 as hereinbelow: “A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of a particular case, to act upon the supposition that it exists, (vide Section 3 of the Evidence Act). What is required is materials on which the court can reasonably act for reaching the supposition that a certain fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting on any important matter concerning him.”

20. Prior thereto, in Vijayee Singh and others vs. State of 10 AIR 2001 SC 1760 17 U.P.11, this Court dwelling on the same theme, had recorded the following exposition: “28. It can be argued that the concept of ‘reasonable doubt’ is vague in nature and the standard of ‘burden of proof’ contemplated under Section 105 should be somewhat specific, therefore, it is difficult to reconcile both. But the general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind.

The ‘reasonable doubt’ is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words “proved”, “disproved” and “not proved” lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, “believe it to exist” and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence.

The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to 11 (1990) 3 SCC 190 18 be disproved when the court believes that it does not exist or considers its non-existence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by ‘a prudent man’.”

21. The quintessence of the enunciation is that the expression “proved”, “disproved” and “not proved”, lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man, so much so that while adopting the said requirement, as an appropriate concrete standard to measure “proof”, full effect has to be given to the circumstances or conditions of probability or improbability. It has been expounded that it is this degree of certainty, existence of which should be arrived at from the attendant circumstances, before a fact can be said to be proved.

22. It is on the touchstone of this legal exposition that the evidence in the case in hand, has to be appreciated. Admittedly, PW1 is the solitary eye witness to the incident. He is related both 19 to the deceased and the accused-appellant. Whereas the deceased is his uncle, the appellant is his cousin brother. He claims to have accompanied the appellant from the video show till the place of occurrence. At the relevant time, he was admittedly intoxicated. The incident, as per the prosecution version, occurred between 1 a.m. to 2 a.m. in the intervening night of 19/20.2.2000 in the house of the deceased which was located about 15 cubits from the compound where the house of PW1 was situated .

The spot map Ex. P-11 prepared by the I.O. (PW16) noticeably does not mention about any source of light in the locality. It does not even indicate as to whether the area was lighted at the time of incident so as to make the viewing of the incident possible by PW1 from the place, where he was located. It is intriguing that though PW1 claimed that the duration of the the incident was about one hour and that the appellant first did assault the deceased from behind twice on which he (deceased) fell down, whereafter he (appellant) sat on his chest and throttled him and that co-accused Pravati Behera covered the mouth of deceased to facilitate his suffocation to death, he did not utter a sound or make a shriek or raise any alarm either to prevent the occurrence or to muster assistance from the inhabitants in the locality.

This is more so as he admitted that there were about 150 to 200 inhabitants, lodging nearby apart from the fact that the houses of his relatives as well of the deceased were almost in the same campus. His plea that he did not disclose the incident to others immediately as he had been threatened by the appellant does not explain or justify in any manner whatsoever his inexplicable silence or indifference during the time of commission of occurrence.

In the overall scenario, the plea of the defence that the evidence of PW1 is highly improbable, absurd and doubtful, cannot be lightly brush aside more particularly in view of the test of essentiality of the degree of certainty, necessary to accept that the facts narrated by this witness as proved. To recall, the incident at the first place had been registered as a case of unnatural death and was after six days of the occurrence converted into one under Sections 302/203/34 IPC against the appellant and the co-accused on the disclosures made by PW1, PW5, PW6 and PW8. Apart from the fact that testimony of PW5, PW6 and PW8 can by no means be construed to be substantive in nature, these witnesses having derived the knowledge from 21 PW1, we are inclined to accept the analysis of the materials on record on the aspect of motive as made by the Trial Court.

23. The testimony of PW1 with regard to the illicit relationship between the accused persons, his revelation to the mother of the deceased that he and the co-accused were seen in a compromising position in their house with the door open and the reprimand of the mother (PW3) for the “secret talks” between them (accused persons) lack in persuasion to conclude that the prosecution had been able to prove such relationship and therefore, the motive for the murder by them.

The medical evidence to the effect that death had occurred by asphyxia as a result of constriction of the neck and not due to hanging by rope, though conforms to the manner of execution of the offence, as narrated by PW1, in view of inherent improbabilities and incongruities in his evidence, we do not consider it safe to base the conviction of the appellant and the co-accused thereon. Dehors testimony of PW1, and the motive as alleged by the prosecution, there is no other tangible and clinching material on record in support of the charge against the appellant and the co-accused. The inference of motive by the High Court drawn from the evidence of PW1 and PW3, in the overall perspective as discussed hereinabove, is apparently flawed.

24. On a totality of the consideration of all relevant facts and circumstances, we are of the unhesitant opinion that the evidence of PW1, as a witness of incident of murder, as projected by him is wholly unacceptable being fraught with improbabilities, doubts and oddities inconceivable with normal human conduct or behaviour and, thus cannot be acted upon as the basis of conviction. The testimonies of PW3, PW5, PW6, PW8 and PW11, even if taken on their face value, fall short of the requirement of proof of the charge beyond all reasonable doubt. The appellant and the co-accused are thus entitled to the benefit of doubt in the singular facts and circumstances of the case. The contrary view taken by the courts below is against the weight of the evidence on record and the exposition of law attested by the decisions cited at the Bar and traversed as hereinabove.

25. In the result, the appeal succeeds and is allowed. As a consequence, the appellant is acquitted and is ordered to be set at liberty if not required in connection with any other case.

Criminal

Identification of the accused

19 Nov 2017 Advocatetanmoy

Dock identification.

To add some material to the subject, I would like to refer to decisions of the Supreme Court in two relatively recent cases, they being Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284 and Prakash v. State of Karnataka, (2014) 12 SCC 133. In Prakash v. State of Karnataka (supra), the discourse on the said issue has been summarised thus :

“15. An identification parade is not mandatory [Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284 : (2012) 4 SCC (Civ) 660 : (2012) 3 SCC (Cri) 1107] nor can it be claimed by the suspect as a matter of right. [R. Shaji v. State of Kerala, (2013) 14 SCC 266 : (2014) 4 SCC (Cri) 185]. The purpose of pre-trial identification evidence is to assure the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim later in court at the trial. [Rameshwar Singh v. State of J&K, (1971) 2 SCC 715 : 1971 SCC (Cri) 638]. If the suspect is a complete stranger to the witness or victim, then an identification parade is desirable [Mulla v. State of U.P., (2010) 3 SCC 508 : (2010) 2 SCC (Cri) 1150; Kishore Chand v. State of H.P., (1991) 1 SCC 286 : 1991 SCC (Cri) 172] unless the suspect has been seen by the witness or victim for some length of time. [State of U.P. v. Boota Singh, (1979) 1 SCC 31 : 1979 SCC (Cri) 115] In Malkhansingh v. State of M.P. [(2003) 5 SCC 746 : 2003 SCC (Cri) 1247] it was held: (SCC pp. 751-52, para 7) “7. … The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade.They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact.”
16. However, if the suspect is known to the witness or victim [Jadunath Singh v. State of U.P., (1970) 3 SCC 518 : 1971 SCC (Cri) 124] or they have been shown a photograph of the suspect or the suspect has been exposed to the public by the media [R. Shaji v. State of Kerala, (2013) 14 SCC 266 : (2014) 4 SCC (Cri) 185] no identification evidence is necessary. Even so, the failure of a victim or a witness to identify a suspect is not always fatal to the case of the prosecution. In Visveswaran v. State [(2003) 6 SCC 73 : 2003 SCC (Cri) 1270] it was held: (SCC p. 78, para 11) “11. … The identification of the accused either in a test identification parade or in court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence.”
(emphasis supplied)

CONCLUSION “23. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.”
[State of U.P. v. Awdhesh, (2008) 16 SCC 238 : (2010) 4 SCC (Cri) 257]

CIVIL, EVIDENCE

Admissibility of the evidence concerning discovery of fact due to disclosure made by an accused in custody

19 Nov 2017 Advocatetanmoy

Judgment updates

Admissibility of the evidence concerning discovery of fact pursuant disclosure made by an accused in custody, reliance Could be placed on Jafar Hussain Dastagir Vs. State of Maharashtra, (1969) 2 SCC 872 and State of UP vs. Jageshwar and Ors, (1983) 2 SCC 305 to argue that since the police was already in possession of the pistol, it having been seized from the possession of Sanjay @ Sanju @ Khatta, the facts concerning the said evidence could not be treated as one discovered pursuant to disclosure by the appellant Sonveer @ Pinku (A-3). In this context, reference was also made to the view taken by this court in Chandrakant Jha Vs. State (GNCT) of Delhi, Crl. Appeal No.655/2013 and death reference no.3/2013, decided on 27.01.2016.

Section 25 of the Evidence Act prohibits evidence to be led as to confession made by an accused to a police officer, its object being to ensure that no one is induced by any threat, coercion or force to make a confessional statement about complicity in crime in as much as to do so would be in breach of the fundamental right against self-incrimination as guaranteed by Article 20(3) of the Constitution of India. Section 26 of the Evidence Act expands the said prohibition by stipulating that a confession made in the custody of police shall not be proved against the marker unless it is made in the immediate presence of a Magistrate.

Section 27 of the Evidence Act, however, carves out an exception to the general rule and partially lifts the inhibition contained in Section 25 and 26, the provision reading thus :-

“27. How much of information received from accused may be proved:

Provided that when any fact is deposed to as discovered in consequences of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether if amounts to a confessions or not, as relates distinctly to the fact thereby discovered, may be proved.”

Since the expression “fact” is crucial to Section 27 of Evidence Act, its meaning as given in Section 3 also needs to be noted as under :-

“Fact” – “Fact” means and includes-

(1) any thing, state of things, or relation of things, capable of being perceived by the sense;

(2) any mental condition of which any person is conscious.

165. In Rakesh Vs. State, GNCT of Delhi, (2016) 227 DLT 92 (DB), a division bench of this court of which one of us (R.K. Gauba, J.) was a party had the occasion to take note of the development of law concerning interpretation of Section 27 of Evidence Act. The following paragraphs from the judgment in the said case may be extracted :-

“40. The provision contained in Section 27 of the Evidence Act has been the subject-matter of a series of authoritative and illuminating pronouncements, the earliest landmark decision being one reported as Pulukuri Kotayya vs. EmperorAIR 1947 PC 67, the exposition of law therein in the following words having ever since been treated as locus classicus:-

“It is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to his discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of the knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”

41. In Mohd. Inayatullah vs. The State of Maharashtra, (1976) 1 SCC 828, it was held that the expression ‘fact discovered’ includes not only the physical object produced but also the place from which it is produced and the knowledge of the accused as to the same. Interpreting the words “so much of such information …. as relates distinctly to the fact thereby discovered “, the court held that the word “distinctly” means “directly”, “indubitably”, “strictly” or “unmistakably”. The word has been advisedly used to limit and define the scope of provable information. The phrase “distinctly” relates “to the fact thereby discovered”. The phrase refers to that part of the information supplied by the accused which is the direct cause of discovery of a fact. The rest of the information has to be excluded.

42. In State of Maharashtra vs. Damu Gopinath Shinde and others, (2000) 6 SCC 269, the law was summarised thus:-

“35. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 74 IA 65] is the most quoted authority for supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.

36. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which “distinctly relates to the fact thereby discovered”. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability…”

43. In State vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600 while examining the issue as to whether discovery of fact referred to in Section 27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto or the discovery should be in respect of his mental state or knowledge in relation to certain things – concrete or non-concrete, the Supreme Court traced the jurisprudential development on the subject and observed that:-

“125. We are of the view that Kottaya case [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is an authority for the proposition that “discovery of fact” cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place”.

44. Pertinently, this decision also refers to ambit and scope of Section 8 of the Evidence Act and quotes with approval the following passage from Prakash Chand vs. State (Delhi Administration) AIR 1979 Sc 400, in two paragraphs extracted as under :

“190. ……It would be admissible under Section 8 of the Evidence Act as a piece of evidence relating to the conduct of the accused person in identifying the dead bodies of the terrorists. As pointed out by Chinnappa Reddy, J. in Prakash Chand v. State (Delhi Admn.): (SCC p. 95, para 8) “There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by Section 162, Criminal Procedure Code. What is excluded by Section 162, Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act (vide H.P. Admn. v. Om Prakash).”

206. We have already noticed the distinction highlighted in Prakash Chand case between the conduct of an accused which is admissible under Section 8 and the statement made to a police officer in the course of an investigation which is hit bySection 162 CrPC. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where stolen articles or weapons used in the commission of the offence were hidden, would be admissible as “conduct” under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct, falls within the purview of Section 27, as pointed out in Prakash Chand case. In Om Prakash case this Court held that: (SCC p. 262, para 14) “[E]ven apart from the admissibility of the information under Section 27, the evidence of the investigating officer and the panchas that the accused had taken them to PW 11 (from whom he purchased the weapon) and pointed him out and as corroborated by PW 11 himself would be admissible under Section 8 of the Evidence Act as conduct of the accused…”

166. Taking note of certain other cases – (Ranjeet Kumar Ram @ Ranjeet Kumar Das vs. State of Bihar, 2015 SCC Online SC 500; AIR 2015 SC (suppl) 1374 and Mehboob Ali vs. State of Rajasthan, 2015 SCC Online SC 1043; 2015 AIR SCW 6123; and Anuj Kumar Gupta vs. State of Bihar, (2013) 12 SCC 383 – this court summarised the legal position in Rakesh Vs. State (supra) as under :-

51. It is well settled that the bar against admissibility of what is prohibited by Sections 25 and 26 of the Evidence Act is partially lifted by Section 27 in respect of such information given by accused to the police as relates distinctly to the discovery of a “fact” thus far unknown; this, subject to the riders of the information being immediate and proximate cause of discovery and the discovered fact being relevant to prove his complicity through confirmation by subsequent events. We have also quoted observations of the Supreme Court in Navjot Sandhu (supra) referring to Section 8 of the Evidence Act. The contours of the said provision are wider. It is sufficient if the information given by the accused provides the lead to the Investigating Officer to unravel facts and material which were not known to him and which could not have been known but for such information coming from the accused. Further, in a given case when established the relevant facts discovered consequent to the information given by the accused may not lead to recovery directly from the person or the place towards which the information given by the accused pointed. The fact that there was an intermediate person respecting whom the accused made the disclosure and who, in turn, leads to the discovery and recovery does not disrupt the elements of immediacy and proximity; this, so long as the special knowledge of the accused with regard to the fact eventually discovered can be gathered from the circumstances, since that is what provides the requisite confirmation of what was initially disclosed…”

BANKING

The Bankers Books Evidence Act, 1891

15 Nov 2017 Advocatetanmoy

Law Library

Note
(18 of 1891)

[1st October, 1891]

An Act to amend the Law of Evidence with respect to Bankers Books.
Whereas it is expedient to amend the Law of Evidence with respect to Bankers Books; It is hereby enacted as follows:

1. Title and extent .(1) This Act may be called The Bankers Books Evidence Act, 1891.
[(2)] It extends to the [whole of India] except the State of Jammu and Kashmir.]

2. Definitions .In this Act, unless there is something repugnant in the subject or context,
[(1) company means any company as defined in section 3 of the Companies Act, 1956 (1 of 1956) and includes a foreign company within the meaning of section 591 of that Act;

(1-A) corporation means any body corporate established by any law for the time being in force in India and includes the Reserve Bank of India, the State Bank of India and any subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959;]
(2) bank and banker mean
[(a) any company or corporation carrying on the business of banking],
(b) any partnership or individual to whose books the provisions of this Act shall have been extended as hereinafter provided,
[(c) any post office savings bank or money order office;]

(3) bankers books include ledgers, day-books, cash-books, account-books and all other records used in the ordinary business of a bank, whether these records are kept in written form or stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism, either onsite or at any offsite location including a back-up or disaster recovery site of both;]

(4) legal proceeding means,
(i) any proceeding or inquiry in whichevidence is or may be given;
(ii) an arbitration; and
(iii) any investigation or inquiry under the Code of Criminal Procedure, 1973 (2 of 1974), or under any other law for the time being in force for the collection of evidence, conducted by a police officer or by any other person (not being a magistrate) authorised in this behalf by a magistrate or by any law for the time being in force;]
(5) the Court means the person or persons before whom a legal proceeding is held or taken;
(6) Judge means a Judge of a High Court;
(7) trial means any hearing before the Court at which evidence is taken; and
[(8) certified copy means when the books of a bank,

(a) are maintained in written form, a copy of any entry in such books together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book is still in the custody of the bank, and where the copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect, but where the book from which such copy was prepared has been destroyed in the usual course of the banks business after the date on which the copy had been so prepared, a further certificate to that effect, each such certificate being dated and subscribed by the principal accountant or manager of the bank with his name and official title; and

(b) consist of printouts of data stored in a floppy, disc, tape or any other electro-magnetic data storage device, a printout of such entry or a copy of such printout together with such statements certified in accordance with the provisions of section 2-A;]

(c) a printout of any entry in the books of a bank stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism obtained by a mechanical or other process which in itself ensures the accuracy of such printout as a copy of such entry and such printout contains the certificate in accordance with the provisions of section 2-A.]

2-A. Conditions in the printout .

A printout of entry or a copy of printout referred to in sub-section (8) of section 2 shall be accompanied by the following, namely:
(a) a certificate to the effect that it is a printout of such entry or a copy of such printout by the principal accountant or branch manager; and
(b) a certificate by a person in-charge of computer system containing a brief description of the computer system and the particulars of
(A) the safeguards adopted by the system to ensure that data is entered or any other operation performed only by authorised persons;
(B) the safeguards adopted to prevent and detect unauthorised change of data;
(C) the safeguards available to retrieve data that is lost due to systemic failure or any other reasons;
(D) the manner in which data is transferred from the system to removable media like floppies, discs, tapes or other electro-magnetic data storage devices;
(E) the mode of verification in order to ensure that data has been accurately transferred to such removable media;
(F) the mode of identification of such data storage devices;
(G) the arrangements for the storage and custody of such storage devices;
(H) the safeguards to prevent and detect any tampering with the system; and
(I) any other factor which will vouch for the integrity and accuracy of the system.
(c) a further certificate from the person in-charge of the computer system to the effect that to the best of his knowledge and belief, such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question represents correctly, or is appropriately derived from, the relevant data. ]

3. Power to extend provisions of Act .

The [State] Government may, from time to time, [by notification ]in the Official Gazette, extend the provisions of this Act to the books of any partnership or individual carrying on business of bankers within the territories under its administration, and keeping a set of not less than three ordinary account-books, namely, a cash-book, a day-book or journal, and a ledger, and may in like manner rescind any such notification.

4. Mode of proof of entries in bankers books .

Subject to the provisions of this Act, a certified copy of any entry in a bankers book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise.

5. Case in which officer of bank not compellable to produce books .

No officer of a bank shall in any legal proceeding to which the bank is not a party be compellable to produce any bankers book the contents of which can be proved under this Act, or to appear as a witness to prove the matters, transactions and accounts therein recorded, unless by order of the Court or a Judge made for special cause.

6. Inspection of books by order of Court or Judge .

(1)On the application of any party to a legal proceeding, the Court or a Judge may order that such party be at liberty to inspect and take copies of any entries in a bankers book for any of the purposes of such proceeding, or may order the bank to prepare and produce, within a time to be specified in the order, certified copies of all such entries, accompanied by a further certificate that no other entries are to be found in the books of the bank relevant to the matters in issue in such proceeding, and such further certificate shall be dated and subscribed in manner hereinbefore directed in reference to certified copies.
(2) An order under this or the preceding section may be made either with or without summoning the bank and shall be served on the bank three clear days (exclusive of bank holidays) before the same is to be obeyed, unless the Court or Judge shall otherwise direct.
(3) The bank may at any time before the time limited for obedience to any such order as aforesaid either offer to produce their books at the trial or give notice of their intention to show cause against such order, and thereupon the same shall not be enforced without further order.

7. Costs .

(1) The costs of any application to the Court or a Judge under or for the purposes of this Act and the costs of anything done or to be done under an order of the Court or a Judge made under or for the purposes of this Act shall be in the discretion of the Court or Judge, who may further order such costs or any part thereof to be paid to any party by the bank if they have been incurred in consequence of any fault or improper delay on the part of the bank.
(2) Any order made under this section for the payment of costs to or by a bank may be enforced as if the bank were a party to the proceeding.
(3) Any order under this section awarding costs may, on application to any Court of Civil Judicature designated in the order, be executed by such Court as if the order were a decree for money passed by itself:
Provided that nothing in this sub-section shall be construed to derogate from any power which the Court or Judge making the order may possess for the enforcement of its or his directions with respect to the payment of costs.

8. Order of Court to be construed to be order made by specified officer .

In the application of sections 5, 6 and 7 to any investigation or inquiry referred to in sub-clause (iii) of clause (4) of section 2, the order of a Court or a Judge referred to in the said sections shall be construed as referring to an order made by an officer of a rank not lower than the rank of a Superintendent of Police as may be specified in this behalf by the appropriate Government.
Explanation. In this section, appropriate Government means the Government by which the police officer or any other person conducting the investigation or inquiry is employed.]

CIVIL, Criminal

Kishan Tripathi @ Kishan Painter vs The State[Delhi HC 2016 February ]

11 Nov 2017 Advocatetanmoy

KEYWORDS:-Electronic Evidence CCTV-

delhi high court

DATE :12th February, 2016

Electronic Evidence CCTV footage was used as direct evidence though there was no eyewitness -Section 65-B of the Evidence Act

ACT : Section 302 of the Indian Penal Code, 1860

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRIMINAL APPEAL NO. 108/2013

Date of Decision: 12th February, 2016

CORAM:
HON’BLE MR. JUSTICE SANJIV KHANNA
HON’BLE MR. JUSTICE R.K. GAUBA

SANJIV KHANNA, J.
1. Kishan Tripathi, also known as Kishan painter because of his profession, by the present appeal, questions judgment dated 4th October, 2012, convicting him for murder of Sachidanand Jha in the intervening night between 22nd and 23rd February, 2009. By order on sentence dated 17th October, 2012, Kishan Tripathi has been sentenced to imprisonment for life, fine of Rs.75,000/- and in default of payment of fine, to undergo Simple Imprisonment for a period of two years for the offence under Section 302 of the Indian Penal Code, 1860 (IPC, for short).

2. Conviction of Kishan Tripathi is primarily predicated on the electronic evidence in form of CCTV footage, and therefore we had played the original footage captured and recorded on the hard disk in the court. Before, we elucidate and refer to this percipient and definitive evidence, we would like to refer to the facts in brief.

3. It has been proved beyond doubt and debate from the testimony of Rakesh Bhargava (PW-4), owner of the factory, located at C-59, Okhla Industrial Area-I, New Delhi that Sachidanand Jha was posted as a night duty guard from 8 P.M. to 8 A.M. in the intervening night between 22nd and 23rd February, 2009. 22nd February, 2009, being a Sunday was weekly off day for the workers. 23rd February, 2009 was Maha Shivaratri and therefore, the factory was again closed. In the morning hours of 23rd February, 2009 at about 9 or 9.30 A.M., Rakesh Bhargava (PW-4) had received a call from the workers in his factory that a dead body of a security guard was lying in the factory. PW-4 immediately informed the police on No. 100 from his residence. Dead body of Sachidanand Jha, whom he identified, was lying in the basement. The body had been covered with a compressor. Blood would be seen near the gate leading to the office. Office glass was broken and someone had entered the office and opened the locker. Rs.7,500/- and some documents had been stolen from the locker.

4. Discovery of the dead body of Sachidanand Jha in the early morning hours at about 9.30-10 A.M. on 23rd February, 2009 is also proved and established from the testimonies of Jawahar Singh (PW-3), who was the duty officer at Police Station Okhla Industrial Area and had received a message from the wireless operator regarding murder in the factory at C-59, Okhla Industrial Area-I at about 9.50 A.M. and had recorded DD No. 4A (Exhibit PW-3/C), which was marked to ASI Sakhi Ram (PW-20) through Constable Pawan Kumar. Jawahar Singh (PW-3) had subsequently registered FIR No. 71/2009, under Sections 302/201/460 IPC and made an endorsement Exhibit PW- 3/A on the rukka. The original rukka and the computerized copy was marked Exhibit PW-3/B. Head Constable Rajpal Singh (PW-7) had joined investigation by visiting C-59, Okhla Industrial Area-I, where ASI Sakhi Ram (PW-20) and Rakesh Bhargava (PW-4) were already present. He affirms having noticed blood on the stairs leading towards the basement and on the first floor. In the basement, dead body of a male with papers and an air compressor machine on top, was lying. PW-7 has deposed that the locker (tijori) had been broken. Head Constable Ram Chander (PW-16) testified that on DD No. 4A being marked, he along with ASI Sakhi Ram (PW-20) had reached C-59, Okhla Industrial Area-I and had met Rakesh Bhargava (PW-4). He had seen blood in substantial quantity on the stairs going from ground floor towards the basement giving an impression that the body had been dragged. Loose papers were found lying near the narrow passage in the basement. The deceased was a security guard named Sachidanand Jha and a compressor machine had been put on him. A small chest (tijori) in the premises was found to be damaged. The FIR was registered. Inspector B.S. Rana (PW-18)‟s testimony is almost identical on aspects like, noticing a dead body in a pool of blood in the basement with a compressor on the top. They had called the crime team with the photographer, who then took pictures from different angles. PW-18 had collected blood samples from the floor in the basement in the form of blood stained earth, and earth control samples etc, which were seized vide memo Exhibit PW-17/B. They had lifted black colour blood stained shoes from the basement, which were seized vide seizure memo Exhibit PW-7/D and the compressor, which had been kept on the dead body was taken into custody vide seizure memo Exhibit PW-7/C. One woolen blood stained cap was taken into possession vide seizure memo Exhibit PW-7/E. On the first floor, window pane of the back door of the office had been removed and was kept on the table. A small chest (tijori) had been broken. They took into possession the glass removed from the door vide seizure memo Exhibit PW-7/F and the small chest vide seizure memo Exhibit PW-7/G. ASI Sakhi Ram (PW-20) has in seriatim affirmed the aforesaid facts. The dead body was first shifted to the mortuary and after it was identified by the relatives of the deceased, namely, Manoj Kumar Jha (PW-6) and Krishan Kant Jha (PW-10), PW-20 had got the post-mortem conducted.

5. Dr. Susheel Sharma (PW-1) had conducted the post-mortem on the dead body of Sachidanand Jha on 24th February, 2009 vide report marked Exhibit PW-1/A. In the post-mortem report and the oral testimony, Dr. Susheel Sharma (PW-1) has referred to the following ante mortem injuries:-

” 1. A stab wound size 2x.4 cm cavity deep was present over right middle aspect of back situated 21 cm below to right shoulder tip, 123 cm above to right heel and 6 cm right ward to midline. Stab would was obliquely placed inner margin downward. Both angle sharp, spindle shape and associated with oozing of blood. On dissection a track is established directed forward, outward and downward passing through wound muscle of back and passing through posterior chest wall at 7 intercostal muscles and pleura and terminate in 3 cm depth of lower lobe of right lung associated with haematoma and haemothorex about 1.5 liter of blood.
2. Abrasion 10×10 cm area at right lower back.
3. Abrasion 15×10 cm area at middle of upper back.
4. Abrasion 5×4 cm area at right shoulder tip area.
5. A stab wound 4×1.5 cm muscle deep, irregular in shape was present at right aspect of neck, situated 2 cm rightward and inward to right mastoid tip, associated with haematoma. On dissection track is muscle deep, passing through wound through muscle of neck perforate right juglar vein. Trachea oesophagus and common carotid artery found intact. Direction of track is forward, downward and inward.
6. A stab wound 2×4 cm muscle deep was present at posterior triangle of right side of neck situated 10 cm rightward from midline, 8 cm above from right middle of clavicle, 10 cm downward to right mastoid tip associated with haematoma. On dissection track is directed downward and inward and associated with haematoma.
7. Abrasion 10×6 cm area at right cheek, infront of right tragus.
8. Incised wound .2x.5 cm at right angle of mouth.
9. Laceration 3×1.5cmx.5 cm at right eyebrow 4.5 cm leftward to midline.
10. Laceration 6x.5x.5 cm irregular in shape was present at left frontal aspect of scalp 2.5 cm leftward from midline associated with haemotoma.
11. Laceration 5x.5cmx.5 cm was present at frontal aspect of scalp of midline.
12. Abrasion 4×5 cm area at lower aspect of right axilla.
The time since death was about one to two days.”
The cause of death, it was opined, was a result of haemorregic shock consequent upon multiple ante-mortem injuries. Injury No. 1 caused by a pointed sharp edged weapon was individually sufficient to cause death in the ordinary course of nature. Injury Nos. 5, 6 and 8 were caused by a sharp weapon, whereas injury Nos. 2, 3, 4, 7, 9, 10, 11 and 12 were caused by a blunt force object impact. These injuries were also collectively sufficient to cause death in the ordinary course of nature. PW-1 had subsequently on 25th June, 2009 examined a knife and had opined that injury Nos. 1, 5, 6 and 8 mentioned in the post-mortem report Exhibit PW-1/A were possibly through this exhibit. He identified the knife without handle as Exhibit P-1 and his second opinion in respect of the knife was marked Exhibit PW- 1/B.

6. In addition to the aforesaid evidence, we have the testimony of Constable Anand (PW-11), who has deposed that on 23rd February, 2009, he was posted with the crime team as a photographer and had visited C-59, Okhla Industrial Area-I where he had seen a dead body of a male smeared with blood. Blood could be seen lying there and on the stairs. He had taken 47 photographs, which were marked Exhibit PW-11/A-1 to A-47 and negatives Exhibit PW-11/B-1 to B-

32. The other 15 negatives could not be produced as they were not traceable.

7. This brings us to the core of the prosecution case, i.e., the CCTV footage, which was the basis to identify the culprit, i.e., Kishan Tripathi.

8. Rakesh Bhargava (PW-4) has testified about the two cameras installed in his factory; camera 1 (channel 1) near the main gate and camera 2 (channel 2) in the basement. He along with the police had examined and thereupon PW-4 had identified the culprit, who could be seen in the footage inflicting injuries on the guard Sachidanand Jha, as Kishan Tripathi. At about 4.45 P.M. on 22nd February, 2009, the day time guard Mahesh Kumar had allowed Kishan Tripathi to enter the factory. Kishan Tripathi was wearing a sleeveless whiter colour sweater. At about 4:30 A.M. (sic. should be 4:20 A.M.) in the intervening night of 22/23.02.2009, the CCTV footage showed that Kishan Tripathi had dragged Sachidanand Jha to the basement. Appellant had given kick blows and had put the heavy air compressor on the dead body of the guard at about 4:20 A.M (sic. should be 4:22 A.M.). At about 4.23 A.M. on 23.02.2009, the appellant returned to give kick blows and had inflicted injuries with the knife which he had taken out from his pocket. After about one minute at 4.24 A.M., the appellant came back and had put printing paper on Sachidanand Jha. The appellant was also seen cleaning his spectacles. At 4.26 A.M., the appellant could be seen picking up a T-iron rod and giving blows to Sachidanand Jha. Between 4.30 A.M. and 6 A.M., Kishan Tripathi had checked and ascertained whether Sachidanand Jha was still alive or breathing. The appellant had changed his wearing apparel in the factory and had put on clothes of the workers, which were kept in the factory. The appellant left the factory at about 6-6.04 A.M. after opening the main gate. The appellant had taken out the keys of the main gate from the pocket of Sachidanand Jha.

9. The original CCTV footage, recorded on the hard disc which was taken into the custody and seized, was played in the trial court when Rakesh Bhargava (PW-4) was under examination. At that time, one Ram Milan private operator, who had subsequently deposed as PW- 15 had operated the hard disc and played the same. In his cross- examination, PW-4 testified that he had arranged for an operator, who had come after an hour and thereafter the CCTV footage was played in the factory on 23rd February, 2009 in the computer room in his presence and in the presence of two-three policemen. Others, including his brother and two-three workers were also present. It took about 2 ½ hours to watch the CCTV footage. PW-4 after seeing the CCTV footage was categorical, that Kishan Tripathi could be seen entering the factory, then dragging Sachidanand Jha and hitting and assaulting him. Lastly, the appellant was seen leaving the factory. Head Constable Rajpal Singh (PW-7) affirms that they had seen the CCTV footage and one person who was wearing spectacles had committed the offence. PW-7 then identified Kishan Tripathi, who was present in the court, as the said person. In his cross-examination, PW-7 affirmed that two CCTV cameras; one at the main gate and the other in the basement, were installed in the factory and that the factory owner had identified the culprit in the CCTV footage. PW-7 confirmed that the accused was seen dragging the deceased to the basement, repeatedly giving him kick blows and inflicting injuries with some instrument. Inspector B.S. Rana (PW-

18) similarly proves this version narrated by HC Rajpal Singh (PW-

7) and Rakesh Bhargava (PW-4) that the CCTV cameras were installed in the factory, an operator was called and the CCTV recording was played, whereupon Rakesh Bhargava (PW-4) had identified the perpetrator as Kishan Tripathi. This person was visible and could be seen hitting Sachidanand Jha. PW-18 had then removed the hard disc from the computer system with the help of Ram Milan (PW-15) and sealed the same and they took the hard disc into possession vide seizure memo Exhibit PW7/H.

10. This brings us to the important testimony of Ram Milan (PW-15), who has equally affirmatively deposed that on 23rd February, 2009, on request, he had visited factory No. C-59, Okhla Industrial Area-I and had played a CCTV footage. In the said CCTV footage, they could see one person dragging and killing another person. PW-15 identified the appellant who was seen dragging Sachidanand Jha, and whose name he came to know after watching the CCTV footage. PW-15 had taken out the hard disc out from the assembled computer and the IO had seized the same vide seizure memo Exhibit PW-7/H. PW-15 affirmed that he had earlier come to the court and had played the CCTV footage in the court on 2-3 days. In his cross- examination, PW-15 confirmed that two cameras were installed in the factory.

11. Kishan Tripathi was known to Rakesh Bhargava (PW-4) as he used to work as a painter in his house, nearby houses and his factory. PW-4 has deposed that a month prior to the incident, Kishan Tripathi had worked in his factory. Two days prior, he had seen Kishan Tripathi standing outside the factory at 8.30 P.M., when PW-4 was going home. Sushila (PW-13), a tea vendor has also deposed that she knew the appellant, who was a painter and used to do white washing and painting work.

12. Pertinently, in order to re-assure and verify, we had called for the original hard disc from the malkhana. The same was produced in a sealed cover with court seals. The said seals were inspected by the counsel for the appellant-Kishan Tripathi. This hard disc was attached to a computer by one Neeraj and CCTV footage was played in the Court for our examination and visual viewing. Counsels were also allowed to watch and see the relevant portions of the video files. Files from the said hard disc were copied in two pen drives of 8 GB each marked Exhibits HC-1 and HC-2. Thereafter, the original hard disc was detached and re-sealed in the presence of the Court Master and returned to the Additional Public Prosecutor to be deposited in the malkhana. We had also played the two CDs available on the trial court record on the laptop.

13. The CCTV footage, which was directly and immediately stored in the hard drive of the computer is the original media, that was self generated and created without any human intervention. This CCTV footage is not secondary evidence and does not require certification under Section 65B of the Evidence Act. This issue is no longer res integra and is settled in the decision of the Supreme Court in Anwar P.V. (S) versus P.K. Basir, (2014) 10 SCC 473, which hold:-

“24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made there from which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act.”
The aforesaid paragraph elucidates difference between primary and secondary evidence. When primary or direct evidence in form of original data be it a CD, hard drive or any other electronic record is produced, the same is admissible and taken on record. This takes care of the contention of the appellant that the CCTV footage should be discarded and not read in evidence in the absence of a certificate under Section 65B of the Evidence Act.

14. The CCTV footage is captured by the cameras and can be stored in the computer where files are created with serial numbers, date, time and identification marks. These identification marks/ details are self generated and recorded, as a result of pre-existing software commands. The capture of visual images on the hard disc is automatic in the sense that the video images get stored and recorded suo-moto when the CCTV camera is on and is properly connected with the hard disc installed in the computer. It is apparent in the present case from the evidence led that no one was watching the CCTV footage when it was being stored and recorded. The recording was as a result of commands or instructions, which had already been given and programmed. The original hard disc, therefore, could be the primary and the direct evidence. Such primary or direct evidence would enjoy a unique position for anyone who watches the said evidence would be directly viewing the primary evidence. Section 60 of the Evidence Act states that oral evidence must be direct, i.e., with reference to the fact which can be seen, it must be the evidence of the witness, who had seen it, with reference to the fact, which could be heard, it must be evidence of the witness, who had heard it and if it relates to the fact, which could be perceived by any other sense or any other manner, then it must be the evidence of the witness, who says who had perceived it by that sense or by that manner. Read in this light, when we see the CCTV footage, we are in the same position as that of a witness, who had seen the occurrence, though crime had not occurred at that time when the recording was played, but earlier.

15. HG wells in his book “The Time Machine” had said “Now I want you clearly to understand that this lever, being pressed over, sends the machine gliding into the future, and this other reverses the motion. This saddle represents the seat of a time traveler. Presently I am going to press the lever, and off the machine will go. It will vanish, pass into future Time, and disappear. Have a good look at the thing. Look at the table too, and satisfy yourselves there is no trickery.” Time machine is friction, albeit seeing the CCTV footage with your own eyes as a judge gives you an insight into the real world in the past. In the present case, the court has itself seen the CCTV footage, and has travelled back in time to the time when the occurrence took place and thereby has seen the occurrence in the same position as that of a witness, who would have seen the occurrence, if he was present. There cannot be a more direct evidence. This video recording which captures the occurrence, would be per se and mostly discerningly reliable and compellingly conclusive evidence, unless its authenticity and genuineness is in question.

16. Per force, we must rule out any possibility of manipulation, fabrication or tampering. The hard-disk CCTV footage must pass the integrity test. It is a two fold test, system integrity and record integrity. It is with this over cautious and pensive approach, that we have proceeded and have bestowed our consideration. We would accept the genuineness and authenticity of the CCTV footage played before us, for good and sound reasons. System integrity test is satisfied by ocular testimonies of Rakesh Bhargawa (PW-4), Ram Milan (PW-15) and police officers H.C. Rajpal Singh (PW-7) and Inspt. B.S. Rana (PW-18). System was working and contemporaneously storing data. They had viewed the data. On record integrity, i.e., contents of the record have remained unchanged, we were anxious as it was noticed that the list of documents at Sr. No. 27, filed with the charge-sheet, mentions compact disc (CD) indicative that the hard drive had been examined and secondary evidence was created. Examination of the police case file had revealed that the CD was created at the behest of the public prosecutor, before the charge-sheet was filed. This was certainly a lapse and the hard disc sealed and deposited in the malkhana should not have been opened, even for the purpose of making copies of the video files. However, in the facts of the present case, this transgression and deviation would not unsettle and nullify the authenticity of the CCTV footage for there is no evidence or even a suggestion that the appellant Kishan Tripathi was at any time under compulsion or force, was asked to enact the crime at the place of occurrence. Moreover, the CCTV footage was seen on 23rd February, 2009 by Rakesh Bhargava (PW-4) and the police officers HC Rajpal Singh (PW-7), Insp. B.S. Rana (PW-18) and Ram Milan (PW-15) who had operated and played the CCTV footage. We are satisfied that the recorded CCTV footage has not been interpolated or tampered in the light of the original hard drive, which has been played before us. The footage recorded consists of 405 files starting from 2:06 P.M. on 21.02.2009 till 2:14 P.M. on 23.02.2009, with self generated numbers. Time and date are mentioned on the files and the video. These are not one, two or three files, but more than 400 files, created over a span of several hours. This “internal evidence” establishes its genuineness. Hard disk in the present case is not only a physical object, but a document within the meaning of section 3 of the Evidence Act [See Shamsher Singh Verma Vs. State of Haryana, 2015 (12) Scale 597]. The Supreme Court in Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857, has held that execution of a document can also be proved by the “internal evidence” contained in the contents of the document. The circumstantial evidence enforces our belief that the original document, i.e. hard drive, is original and authentic.

17. In these circumstances, we would like to reproduce the snap shots from HC-1 and HC-2 in this judgment, which would foreclose all arguments as to the identity of the perpetrator, i.e., Kishan Tripathi. Thus, there cannot be any doubt at all as to the identity of the appellant Kishan Triapthi, who is guilty for murder of Sachidanand Jha in the intervening night between 22nd and 23rd February, 2009 at C-59, Okhla Industrial Area-I, New Delhi.

Entry in the factory at 4:45 PM on 22.02.2009 At the basement from 4:20 AM to 4:30 AM in the intervening night of 22/23.2.2009 Leaving the factory at 6-6:04 AM on 23/02/2009
18. The snap shots re-produced do not include the close-ups of the appellant Kishan Tripathi, who was present in person in the court during the course of hearing of his appeal. We accept that the pixels of the CCTV footage were not very high, albeit, the presence of the appellant and that he was the perpetrator can be established and ascertained from the CCTV footage.

19. Prosecution has also relied upon the statement of Sub Inspector Avdesh Kumar (PW-8), finger print expert, who had stated that the chance print marked Q2 lifted from the spot was identical to the left thumb impression of the appellant and accordingly he had given his report Exhibit PW-8/A. We would, however, not rely upon the said report as the person who had lifted the chance print from the spot did not testify and depose as a witness.

20. As per the police version, Kishan Tripathi was arrested on 27.02.2009 at 3:30 P.M. by the police near an orphanage at Sarita Vihar, New Delhi vide arrest memo Exhibit PW-14/A. Rakesh Bhargava (PW-4) has deposed that he came to know about Kishan Tripathi‟s arrest on 27.02.2009. He has also deposed that a knife was recovered at the behest of the appellant from the basement. The knife was hidden in the bundle of papers wrapped in a jute tat. A T- iron rod was also recovered at the behest of the appellant-Kishan Tripathi. The knife was identified as P-1 and T-iron rod as P-6. The two objects were seized vide Exhibit PW-14/I and 14/J. Recovery is also deposed to and affirmed by Constable Harender (PW-12/14). The latter has testified about the disclosure statement made by Kishan Tripathi marked Exhibit PW-14/C. The said statement was recorded by SI Girjesh Singh (PW-19). Constable Harender (PW- 12/14) has deposed about the recovery of blood stained pant (Ex. P-

3) from bushes behiend Anaath Ashram, which was seized vide seizure memo Exhibit PW-14/E and recovery of black shoes and one pair of blood stained socks (Ex. P-4, collectively) from the bedding lying on the floor, which were seized and taken into possession vide seizure memo Exhibit PW-14/F. A shirt with stripes, which the appellant was wearing at the time of offence and had been washed was also seized along with the cream colour sweater (Ex. P-5, collectively) and taken into possession vide seizure memo Exhibit PW-14/G. The said recoveries of the pant, shirt, socks and shoes was also deposed by and affirmed by SI Girjesh Singh (PW-19).

21. The trial court has taken on record the forensic science laboratory report dated 12th June, 2009, which shows presence of human blood of group „B‟ on the knife and the pant. Human blood could also be detected on the T-rod, but the blood group could not be ascertained. The impugned judgment refers and rejects the argument that the knife and the T-rod could have been recovered earlier or were planted. We observe that the said recoveries and report is only a corroborative or supplementary evidence. The primary and core evidence in the present case would be the CCTV footage.

22. Appellant Kishan Triapthi in his statement under Section 313 of the Code of Criminal Procedure, 1973 has accepted that he knew Rakesh Bhargava (PW-4) and had undertaken painting work in his house and factory about 10-15 days prior to the occurrence. However, appellant claimed that he was not shown the CCTV footage and has denied several suggestions given as incorrect/I do not know, and claimed he had visited the house of Rakesh Bhargava (PW-4) on Saturday where pooja was going on. Wife of Rakesh Bhargava (PW-4) had asked him to reach the factory. He had accordingly proceeded to the factory and reached there at about 4-4.30 P.M. At that time, Rakesh Bhargava (PW-4) had threatened and warned the appellant not to demand money or otherwise he would be implicated in a false case. On Sunday at 10 A.M., the appellant had visited the house of Rakesh Bhargava (PW-4) and had demanded money. Rakesh Bhargava (PW-4) had asked him to come to the factory about 4-5 P.M. on Sunday as he would also be reaching there. Appellant had reached the factory as asked, but Rakesh Bhargava did not come. Appellant was not allowed to enter the factory by the guard, even though his goods were lying outside. The guard had asked him to procure/ bring some goods for him and had given him money. Appellant had bought the goods for the guard and had proceeded to Noida where he was doing painting work. Thereafter, the appellant had gone to Jahangirpuri, where he came to know that police was searching for him. He was arrested at 8/9 P.M. at Jahangir Puri. He was then taken to the factory and was made to put his palm on various articles and then brought to the chowki and kept there for the entire night. Next day he was taken to his room at Madanpur Khadar and thereafter sent to jail.

23. The appellant had led defence evidence. Ravinder Pandey (DW-1) has testified that on 26th February, 2009 at about 8 P.M. police officers had come to his house and had taken Kishan Triapthi into custody. They had left DW-1 at about 10-11 A.M. on 27th February, 2009. In his cross-examination DW-1 has accepted that he had not apprised the local police or higher police officers that Kishan Tripathi was arrested or detained by the police in his presence. DW- 1 expressed ignorance whether information regarding arrest of Kishan Tripathi was given to Satish Singh son of Ram Sharan Triapthi on 27th February, 2009. Head Constable Om Prakash (DW-

2) has testified that DD No. 3B was recorded on 27 th February, 2009 at 00.30 hours (Exhibit DW-2/A). Thereafter, another DD No. 34B was recorded at 9.25 A.M. (Exhibit DW-2/B). These, DD entries mention the name of Ravinder Pandey, which indicates reference to DW-1. At best, these witnesses would show that Kishan Triapthi was possibly detained in the intervening night between 26th and 27th February, 2009. However, this would not make any difference. Dr. Kamlesh (DW-3), the third defence witness is a Director (Professor) at the Gurunanak Eye Hospital. The appellant was diagnosed with alternate convergent squint and was admitted for treatment on 9th February, 2010. The appellant was using myopic glasses and had aided vision of 6/18 in both eyes. He had undergone surgery on 11 th February, 2010 and the squint was fully corrected and the patient was discharged on 12th February, 2010. In his cross-examination, DW-3 clarified that the appellant did not have any problem in seeing at night and was not diagnosed to be suffering from night blindness. These depositions, do not show that the appellant is innocent or the prosecution evidence in the form of CCTV footage is of doubtful integrity and fabricated. The core evidence i.e. CCTV footage nails the appellant, Kishan Tripathi.

24. In view of the aforesaid findings, we do not find any merit in the present appeal. We uphold the conviction of the appellant Kishan Tripathi for having committed murder of Sachidanand Jha. We also do not see any reason to interfere with the order of sentence. The appeal is accordingly dismissed.

(SANJIV KHANNA) JUDGE

(R.K. GAUBA) JUDGE

CIVIL, Criminal

Dharambir Vs. Central Bureau of Investigation [Delhi HC 2008 MARCH]

11 Nov 2017 Advocatetanmoy

Keywords: Electronic evidence-computer systems

delhi high court

DATE : 11 March 2008

ACTS : Sections 173(5) and 207 Cr.p.c Sections 3 and 65B of the Indian Evidence Act 1872 Sections 2(o) r/w section 2(t) IT Act

Hard Disk is storage device is as well as document
Electronic Evidence : Hard Disc is storage devise if written then electronic record:

HELD : Criminal Electronic evidence Sections 173(5) and 207 Cr.p.c Sections 3 and 65B of the Indian Evidence Act 1872 Sections 2(o) r/w section 2(t) IT Act Prosecution intercepted the telephonic conversation between the accused persons and forwarded the relevant hard disks to Forensic lab and after certification same were submitted to Trial Judge Trial Court took cognizance of the offence and issued process in four separate cases relating to corruption Question before the court was Whether the hard disks can be considered as relevant document under Evidence Act.?

(ii) Does the denial of the same will amount to violation of fundament right to fair trial ?

(iii) Whether prosecution complied with section 207 Cr.pc.?

HDs themselves would be electronic records and therefore documents for the purposes of Section 173(5)(a) read with Section 207(v) CrPC During the precharge stage the trial court is not expected to insist that copy of each and every document gathered by the prosecution must be furnished to the accused irrespective of what the prosecution proposes to rely upon Prosecution cannot obviate the statutory requirement under Section 207(v) of Cr.p.c for providing to the accused access to the original recording At the present precharge stage, the accused has to be given access to the HDs as a relied upon document to the limited extent As long as the said provisions of the CrPC are strictly complied with, and they should be insisted upon being strictly followed, there can be no violation of principles of fair Trial Petitioners are permitted to listen to the original recordings of the relevant intercepted telephonic conversations relied upon by the prosecution Petition allowed accordingly.

Delhi High Court
Dharambir vs Central Bureau Of Investigation … on 11 March, 2008
Equivalent citations: 148 (2008) DLT 289

Bench: S Muralidhar

JUDGMENT S. Muralidhar, J.

Introduction 1.1 Questions of law concerning supply of copies of documents, gathered by the prosecution during investigation, to an accused person at the pre-charge stage arise for consideration in these petitions. It involves the interpretation of Sections 173(5) and 207 of the Code of Criminal Procedure 1973 (CrPC), Sections 3 and 65B of the Indian Evidence Act 1872 (‘EA’) and Sections 2(o) read with Section 2(t) of the Information Technology Act, 2000 (IT Act).

1.2 In order to appreciate the issues that arise a brief background is being set out. The petitioners here are persons accused of offences under Section 120B IPC and under Sections 7 to 12, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (‘PC Act’) in four different cases. In the charge sheets filed in the four cases, the prosecution has stated that as part of the investigation, intercepted telephonic conversations between the accused persons were recorded on four hard discs (HDs) in the computer systems kept at the office of the Special Unit (SU) of the Central Bureau of Investigation (CBI) in New Delhi. The charge sheets further state that these conversations took place on fifteen mobile phones and land lines (hereafter ‘tapped phones’), belonging to one of the accused, which were placed under electronic surveillance between December 2002 and March 2003 pursuant to statutory permissions obtained from time to time from the competent authority. After listening to and analyzing the intercepted conversations recorded on the HDs, the CBI transferred to separate Compact Discs (CDs) such of those conversations which CBI considered to be relevant for each of the four cases.

1.3 The four computer systems containing the HDs and the CDs were then sent to the Andhra Pradesh Forensic Sciences Laboratory (APFSL) for certification for two purposes. First, that the HDs were in working condition as required by Section 65B(2)(c) EA and secondly, that the conversations transferred to the CDs were true copies of their original recording on the HDs. The CDs certified by the APFSL were thereafter forwarded to the learned Special Judge, New Delhi along with the charge sheets. The four HDs have been retained at the APFSL, Hyderabad.

1.4 The Special Judge took cognizance of the offences and issued process to the accused. Copies of the respective charge sheet and its annexures, along with a transcript of the intercepted telephone conversations relevant to the case were furnished to each of the accused. Later, the CDs containing the said relevant telephone conversations were also supplied to the accused.

1.5 During the course of arguments on charge, some of the accused in the four cases filed applications before the Special Judge asking for a direction to the CBI to supply to each of them mirror-image copies of the HDs. This was declined by the Special Judge by separate orders. Aggrieved, the accused have approached this Court with the present petitions, one of which is under Article 226 of the Constitution and the others under Section 482 CrPC.

1.6 On 16th May 2007 this Court directed that arguments on charge could be proceeded with before the Special Judge but ‘formal order be kept in reserve.’ This order was challenged before the Supreme Court and the Special Leave Petition was disposed of on 29th February 2008 requesting this Court to take up the case on 4th March 2008 and ‘dispose of the matter latest by 11.03.2008.’ 1.7 In compliance of an order dated 29th February 2008 passed by the Supreme Court, these petitions were heard on March 4th, 6th, 8th and 9th 2008 and judgment is delivered today, 11th March 2008. Despite the last three dates being holidays, counsel for the parties addressed arguments on each of them. The Court expresses its appreciation of the cooperation extended by counsel.

The four cases 2.1 There are four cases in each of which a charge sheet has been filed and where some or all of the Petitioners here have been arrayed as accused. The FIR in the earliest of the four cases, bearing No. RC 0025(A)/2003-DLI was registered on 3rd April 2003 under Sections 7, 13(2) read with 13(1)(d) PC Act. This concerns the unauthorised construction of a lift at the property at Mahavira Towers, IIIrd Floor, Paschim Vihar. In this case (hereinafter the ‘Lift Case’) Shri Subhash Sharma (‘Sharma’), the former Vice-Chairman of the Delhi Development Authority (DDA) is accused No. 1, Shri Dharambir Khattar (‘Khattar’) who allegedly worked as a middleman between public servants and private individuals is accused No. 2, Shri Ved Prakash Kaushik an individual and coconspirator who helped in liaising with the DDA is accused No. 3, Shri Pradeep Kapoor husband of Smt. Kavita Kapoor, a partner of a firm M/s APY Hoteliers and Developers is Accused No. 4 and Shri Anil Wadhwa and Shri Yashpal Manocha, the other two partners of the said firm are accused Nos. 5 and 6 respectively. The charge sheet in the Lift Case was filed on 15th July 2004 The prosecution concluded its arguments on charge almost two years ago on 2nd June 2006. Arguments on behalf of accused No. 1 Sharma have been completed. The arguments on behalf of accused No. 2 Khattar are in progress and arguments are yet to be addressed on behalf of the four other accused.

2.2 The second case is RC-1(A)/2003-ACU-1 which was registered on 26th March 2003 for the offences under Section 120B IPC read with Section 13(2), 13(1)(d) PC Act. It concerns the Modern Public School Education Society, Shalimar Bagh, Delhi (‘Society’). The chargesheet was filed in this case [hereafter ‘the School case’] on 30th July 2004 It states that the Society was allotted 3.977 acres of land by the DDA on 11th July 1985 for the construction of a higher secondary school and playground. Despite approval of the building plan on 2nd August 1991, the Society did not construct the school building within a stipulated time of two years. A show cause notice was therefore issued to it by the DDA on 18th November 2002 for cancellation of the lease. The case of the prosecution is that the Accused No. 1 Sharma, accused No. 2 Shri Jagdish Chandra, the then Director (Lands) DDA, Accused No. 4 Shri Ashok Kapoor, the then Private Secretary to Sharma, and Accused No. 5, Shri Amrit Lal Kapoor, Director of the Society, in conspiracy with Accused No. 3 Khattar ensured that the lease was not cancelled and the composition fee not imposed leading to a pecuniary loss of Rs. 62,06,594 to the Government. Arguments on charge have been completed by the prosecution on 7th November 2005. The arguments of only accused Nos. 4 and 5 remain to be addressed and are expected to be completed on 19th March 2008.

2.3 The third case is RC.2(A)/2003-ACUIII registered on 26th March 2003 under Sections 120B IPC read with Sections 7, 8, 13(2) read with 13(1)(d) PC Act. Accused No. 1 is Sharma, the former Vice-Chairman DDA, Accused No. 2 is Shri Anand Mohan Sharan (‘Sharan’), the former Commissioner (Land Disposal) DDA, Accused No. 3 is Shri Vijay Risbud, Commissioner (Planning) DDA, Accused No. 4 is Shri Jagdish Chandra Director (Lands) DDA, Accused No. 5 is Khattar, Accused No. 6 is Shri Ajay Khanna of DLF Universal Ltd. Shri Ravinder Taneja, Shri G.R. Gogia and Shri Mukesh Saini, accused Nos.7,8 and 9 respectively, have been named as co-conspirators. The charge sheet in this case (hereinafter known as ‘DLF case’) was filed on 31st March 2005. The case of the prosecution is that the accused entered into a criminal conspiracy with private parties in order to show undue benefit to DLF in the matter of allowing Floor Area Ratio of 300 in place of 139 and by charging rates much below the prevailing market rates in lieu of obtaining illegal gratification from DLF. The bribe amount agreed was Rs. 1.1 Crores of which Sharma then Vice Chairman of DDA was to get Rs. 50 lakhs and the rest of the amount was to be shared amongst Sharan, Chandra and Khattar. Risbud was to be gratified separately by DLF. It is stated that Taneja and Gogia were involved in the delivery of amount of the bribe. In this case the prosecution is expected to complete its arguments on 13th March 2008 after which arguments would be addressed on behalf of each of the other accused.

2.4. The fourth case is RC.3(A)/2003-ACU.X in which the FIR was registered on 29th April, 2003 under Sections 120B read with 7, 8, 9, 12, 13(2) read with 13(1)(d) PC Act. Accused No. 1 is Shri Shameet Mukherjee (‘Mukherjee’) a former Judge of this Court, Accused No. 2 is Sharma, the former Vice-Chairman DDA, Accused No. 3 is Shri Vinod Khatri (‘Khatri’) and Accused No. 4 is Shri Ashok Kapoor (‘Kapoor’), a former Private Secretary to Sharma. In this case (hereafter the ‘Shameet Mukherjee Case’), the charge sheet was filed on 5th April 2005. The prosecution’s case is that Khattar enjoyed a close relationship with Sharma and Mukherjee. Even after he became a Judge of this Court, Mukherjee used to visit premises of Khattar at 431, Mathura Road, Jangpura Extension, New Delhi and 2 K. G. Road and frequently enjoy the hospitality of Khattar. It is stated that Khattar acted as a conduit between Mukherjee and various private parties who wanted their pending cases to be decided favorably. The allegation is that the official files and records of cases in the Court of Mukherjee used to be taken to the premises of Khattar at Mathura Road in which Mukherjee used a room for his work. It is stated that CBI recovered files of cases pending in the Court of Mukherjee while they were being taken out from the aforementioned premises belonging to Khattar by Ashok Kapoor in his Maruti Van on 26th March, 2003. This included a six-page draft, unsigned order of the Court in a Suit titled Azad Singh v. DDA. It is alleged that the conspiracy was entered into between the accused aforementioned to cause undue benefit to Khatri who was interested in two suits pending in the Court of Mukherjee which pertained to two properties. Khatri, a dismissed Constable of the Delhi Police, had illegally occupied Gram Sabha land vested with the DDA for running the Sahara Restaurant. He was interested in the continuation of the interim order passed in Azad Singh v. DDA which effectively prevented the widening of the Aruna Asaf Ali Road. If the stay was lifted, it would cause Khatri a huge loss because he would have had to lose possession of two plots adjacent to the plot which was being claimed by Azad Singh. Also the commercial interests of the Sahara Restaurant which was about 1900 feet away from the Azad Singh plot would be affected by the road widening. The charge sheet details the manner in which the conspiracy between the accused ensured a interim order being passed to protect the interests of Khatri. The arguments on charge on behalf of the CBI and Mukherjee have concluded. The arguments on behalf of Sharma are in progress. The arguments on behalf of other three accused are yet to take place.

The interception of calls and their recording 3.1 What is common to all the chargesheets is that apart from the statements of witnesses, and certain documents details of which have been set out in the Anexures to the chargesheets, the prosecution seeks to rely on intercepted conversations involving the accused made on 15 mobile and landline telephones belonging to Khattar, his family members and other accused which were placed under electronic surveillance between December 2002 and March 2003 pursuant to permissions being obtained from the competent authority from time to time under the Indian Telegraph Act 1885 and the Rules there under.

3.2 After listening to the various conversations between the accused, the CBI prepared call information records of identified calls of conversations between accused persons relevant to each of these cases. In the Shameet Mukherjee case, according to the charge sheet, the relevant calls between the accused persons were copied on to 19 CDs and taken on record for investigation. These 19 CDs contained conversations pertaining to 768 calls. From these 19 CDs, 100 short-listed telephone conversations relevant to Shameet Mukherjee case were prepared and transferred to 4 CDs. According to the chargesheets filed in the other three cases, the postion regarding the relevant calls according to the CBI are as under:

(i) The Lift Case: 25 calls, transferred to 3 CDs.

(ii) The School case: 14 calls transferred to 2 CDs.

(iii) The DLF case: 62 calls transferred to 3 CDs.

3.3 As noticed earlier, the four hard discs and the CDs containing the relevant conversations were sent to the Andhra Pradesh Forensic Science Laboratory (‘APFSL’) for comparison with the originals and certification that the conversations recorded in the CDs were true copies of the original recording in the hard discs and further for certifying that the HDs were in a working condition. The APFSL was asked to certify that the time, date and duration of the calls in the CDs tallied with the data files in the four hard discs. The APFSL sent to the CBI the results of the examination in a report dated 22nd July 2003 which confirmed that the recorded conversations were true copies of the originals and that the HDs were in a working condition.

3.4 It is not disputed that the CDs containing the copies of all the aforementioned relevant conversations were forwarded to the court of the Special Judge by the CBI along with the charge sheets. Initially along with the copies of the respective charge sheets, each of the accused was given a transcript of the relevant intercepted telephone conversations recorded in the CDs. Thereafter, pursuant to the orders passed by the Special Judge, the copies of the CDs containing the relevant intercepted telephone conversations themselves were furnished to each of the accused.

Proceedings before the Special judge

4. After the charge sheets were filed the learned Special judge took cognizance of the offences and issued process. Over a period of two years thereafter, the accused filed applications before the learned Special Judge under Section 207 seeking copies of documents and in particular the mirror image copies of the hard discs. The learned Special Judge by separate orders dated 17th September 2005 and 8th March 2006 in the School case, 24th March 2006 in the Lift case, 5th September 2006 in the Shameet Mukherjee case, 19th September 2007 in the DLF case, rejected each of the applications. The significant findings in the order dated 19th September 2007 passed by the Special Judge in the DLF case, were as under:

a. The certificate dated 22nd July, 2003 issued by the APFSL on examination of the 3 hard discs, i.e. A, D and E and 3 CDs containing the 62 calls in the DLF case, was to the effect that the data in 62 telephone calls tallied with the respective files in the hard discs. The certificate was therefore in compliance with Section 65B(4) EA and had to be treated as evidence within the meaning of Section 3 EA. Therefore the 3 CDs fell within the definition ‘computer output’ being an electronic record within the meaning of Section 65B(1) EA and had to be treated as an original document.

b. There was force in the contention of the learned Counsel for the CBI that the four hard discs recorded telephone calls between persons not connected with the present cases and handing over a copy of these hard discs to the accused persons would prejudice the case of the other co-accused and persons unconnected with these cases. In any event, since the CDs of the relevant telephone conversations which were computer output within the meaning of Section 65B EA had been handed over to the accused, the mandate of Section 207(v) read with 173(5) CrPC had been complied with.

c. Since the prosecution was not relying upon telephone calls other than those copied on the CDs and therefore did not include the other calls in the list of documents appended with the charge sheet with 3 CDs, nothing more needed to be handed over to the accused. The request for supply of mirror image copies of the hard disc was rejected.

d. As regards non-compliance with the requirement of Rule 419 of the Indian Telegraph Rules, those were matters of evidence which could not be gone into at the stage of framing of charge.

d. The question whether the prosecution was, in the garb of indicating what evidence they proposed to rely upon, indulging in arbitrary picking and choosing of telephone calls, did not arise since the prosecution was not relying upon the four hard discs, copies of which were sought by the accused. There would be ample opportunity for the defense to cross-examine the expert witnesses of the APFSL on their analysis of the call duration, time date and so on.

The present petitions 5.1 Aggrieved by the aforementioned orders, some of the accused have filed these petitions under Section 482 CrPC. As regards AM Sharan, he has filed Writ Petition (Crl) 1393 of 2007, in which the prayer is for a direction that the ‘entire recorded and intercepted messages be destroyed’ on the ground that they have been illegally obtained in contravention of Section 5(2) of Indian Telegraph Act, 1885 and Rule 419A of the Indian Telegraph Rules, 1951. He has further prayed for quashing the order dated 19th September 2007 passed by learned Special Judge, declining the request for the mirror images of the hard disc in the DLF case. Jagdish Chandra, an accused in the DLF case has filed Crl. Misc. (C) No. 203 of 2007 for a direction to the trial court to hear arguments on charge on a day-to-day basis.

5.2 Initially, when these petitions were filed notices were directed to issue but no interim order was passed. On 16th May 2007, since the position of the board did not permit a hearing of the cases, it was directed that they should be listed on 28th May, 2007 and that ‘in the meanwhile, the trial court may continue with hearing on charge but formal order be kept in reserve.’ Thereafter the interim orders were kept continued from time to time.

5.3 Aggrieved by the order dated 16th May, 2007 the CBI filed SLP (Crl) No. [Crl. MP No. 3060] of 2008 in which the following order was passed by the Supreme Court on 29th February 2008:

Delay condoned.

Since the parties are present, we request the High Court to take up the matter on 04.03.2008. Without further notice, the parties shall appear before the learned Chief Justice of the High Court with a copy of our order so that an appropriate Bench can be fixed for hearing of the petition, i.e. Criminal Misc. Application No. 2845 of 2007 in Criminal M.C. No. 203 of 2007. The High Court is requested to dispose of the matter latest by 11.03.2008. The special leave petition is disposed of accordingly.

5.4 This order was communicated to this Court on 4th March, 2008 during the lunch recess. Since the decision in Crl.M.A. No. 2845 of 2007 in Crl.M.C. 203 of 2007 would affect all the connected cases, counsel for the parties in all the cases insisted that they should all be heard as well. On 4th March 2008 the hearing commenced and orders were reserved on 9th March, 2008.

Submissions of counsel 6.1 Arguments have been heard at length of Shri R.N. Mittal, Dr. A.M. Singhvi and Shri Siddharth Luthra, learned Senior counsel, appearing for the Petitioners. Shri Dayan Krishnan, learned Counsel addressed arguments on behalf of the CBI.

6.2 The submissions on behalf of the petitioners were:

(i) In each of the charge sheets, the CBI has detailed the process of arriving at the list of calls ‘relevant’ to each of the cases. This process shows that telephone conversations on the tapped phones were recorded into a hard disc and from the hard disc the so-called relevant calls were culled out and transferred into CDs which have been handed over to the accused. Since there is a reference to the hard discs in the charge sheet, the conversations recorded in those hard discs were certainly ‘documents’ within the meaning of Section 3 EA read with Section 173(5)(a) and 207(v) CrPC. Such documents as had been relied upon had necessarily to be supplied to the accused.

(ii) Section 65(B)(1) EA states that copies of an electronic record transferred to another medium would be deemed to be a document admissible in evidence subject to the conditions in Section 65(2) EA being complied with. This would render the HDs as relied upon documents and this would therefore also require the accused to be given copies of the HDs.

(iii) The CDs furnished to each of the accused is only partial information and the prosecution is bound to furnish to each of them at the pre-charge stage the entire material gathered by it during the course of investigation. The CBI Manual specifically mandates the procedure to be followed by the CBI while investigating the case when it involves electronic records. A clone of the hard disc is expected to be prepared and sent for analysis since the removal of a hard disc from a Computer Processing Unit (‘CPU’) can itself alter the structure of the content of the hard disc. Unless each of the accused was given a mirror image copy of the hard disc it would not be possible to ascertain whether even in relation to these so-called relevant calls whether they have been altered in any manner by writing over, removal and reinsertion and so on. It is stated that this is absolutely essential since the test report of the APFSL when compared with the information provided by the telephone companies shows that there is a discrepancy in call duration and time and this cannot be verified except by obtaining a copy of the hard disc.

(iv) Admittedly, the number of intercepted telephone conversations that took place between the accused and recorded in the HDs was in excess of 50,000. It is entirely the whim of the CBI as to how it has chosen certain telephone calls which are considered to be ‘relevant’. It is sought to be demonstrated from the printout of the details of the telephone calls as furnished by the service provider that between the same two persons all the conversations on a particular date have not been picked up as being relevant. Even between 4 or 5 calls made in succession, alternate calls have been picked up and rest left out. Unless the entire set of calls recorded on the hard disc is provided to the accused persons, they would not be able to demonstrate if any material contained in the left out calls, is of advantage to the accused, or exculpates the accused.

(v) Each of the accused has a fundamental right to a fair trial under Articles 20,21, and 22 of the Constitution of India, which fundamental right has been given effect to in the various provisions of the CrPC. Denial of any material gathered during investigation by the prosecution, and referred to or produced with a charge sheet, would be a violation of that right.

(vi) It is submitted that for the purposes of Section 173(5)(a) CrPC what can be said to be ‘relevant’ by the prosecution cannot be left to be decided by the prosecution itself. In any event the Court is not powerless, if it feels that the document or a portion of the document that has been referred to by the prosecution is necessary to be given to the accused, it can direct that the prosecution should furnish such a copy to ensure that the accused is not denied the fair right of defense at the trial.

(vii) It makes no difference if the prosecution were to say that the hard discs are either not relied upon or are being referred to only for the purposes of compliance with Section 65(B) of the EA. By conveniently not producing the hard discs at this stage before the Court, which in any event the prosecution was bound to do in terms of Section 165 CrPC and by conveniently stating that they were not relying upon the hard discs, the prosecution has denied accused the material that is vital to the accused for a proper defense.

(viii) It is submitted that the learned Special Judge was in error in holding that the CDs supplied to the accused had to be treated as the original documents themselves. This was belied by what the CBI has explained in the charge sheet to the effect that these CDs have been copied from the hard disc. Even if these copies have been certified by the APFSL, that was of rebuttable authenticity and the accused could not be expected to rebut it without access to the original recordings of those conversations as contained in the hard discs.

(ix) It is submitted that mere playing all the relevant calls relied upon by the CBI from the hard disc would not suffice as the accused would still not have access to the other conversations involving them contained in the hard disc.

(x) Illegally collected evidence, in the form of telephonic conversations intercepted without following the mandatory requirement of the Indian Telegraph Act and the Rules made there under ought not to be permitted to be relied upon by the prosecution

(xi) Finally, it was urged that even where the prosecution withholds a certain document from the accused at the pre-charge stage on the ground that it does not propose to rely upon such document, the trial court or even this Court in exercise of its inherent powers can direct the prosecution to provide to the accused a copy thereof in recognition of the right of the accused to a proper and effective opportunity of being heard even at the stage of charge.

6.3 The submissions on behalf of the CBI were as follows:

(a) There is a distinction between a device and an electronic record. The had is only an electronic device for storing information and is not a document and hence it is shown in the list of articles and not in the list of documents accompanying the chargesheet.

(b) The provision of Section 65(B) EA has been followed by the CBI in letter and spirit in this case. Therefore, once the conditions in Section 65B(2) have been satisfied then the CDs containing the relevant telephone conversations, duly certified by the APFSL, would be deemed to be a document under Section 65B(1) EA. It is admissible evidence without requirement of proof of production of the original computer output.

(c) It is not open, to the accused to ask for the production of the original computer output or the hard disc at the stage of the trial, and therefore, even less can they do so at the pre-charge stage of furnishing copies of documents.

(d) The reference to hard discs in the chargesheet was only to explain the process of making copies of the relevant calls and it was shown in the list of materials only for the purposes of proving to the court during the trial that the conditions contemplated under Section 65B(1) EA were duly complied with.

(e) The prosecution is therefore not obliged, in terms of Section 207(v) CrPC read with Section 173(5)(a) thereof, to supply the mirror image of the HDs as demanded by the accused. In any event a mirror image of the hard disc which contains calls pertaining to other cases as well is not only not contemplated under Section 207(v) CrPC but would also prejudice the right to privacy of other persons not connected with the cases.

(f) The accused would have the right to cross-examine the witnesses of the APFSL regarding the discrepancies concerning the relevant calls including call duration and time and therefore would not be prejudiced if the hard disc is not produced at this stage.

(g) The prosecution can validly determine what is relevant for the case amidst the large number of documents gathered during investigation and choose to rely upon only such documents for proving its case. In fact, the prosecution risks not relying upon any other documents for bringing home the charge. It is not as if the telephone calls are the only piece of evidence relied upon by the prosecution. The court will have to go only by what the prosecution says it relies upon at the stage of framing charges. This Court cannot itself determine what the prosecution ought to rely upon. Referring to State of Orissa v. Debendra Nath Padhi it is submitted that the accused has no right to obtain copies of documents not relied upon by the prosecution.

(h) Even if the prosecution was to bring on record any other document which it proposes to rely upon at a subsequent stage, it can only be done in accordance with the procedure contemplated in the CrPC. At that stage the accused will have full opportunity of knowing in advance what is proposed to be relied upon and can ask for access to those documents as well.

(i) Relying upon the DPP v. Mckewon [1997] All.E.R. 737 and State v. Navjot Sandhu it is submitted that the stage for explaining the discrepancies concerning the call information as provided by the telephone companies and that certified by the APFSL is at the trial and not at the pre- charge stage. The question of legality and illegality of the evidence gathered can be examined also only at the trial and the stage of framing of charges is not appropriate for that purpose.

(j) The scope of the power of the High Court under Section 482 CrPC does not cover the examination of the admissibility of the evidence relied upon by the prosecution at the pre-charge stage.

Questions for determination

7. In the above background, and in light of submissions of counsel for the parties, the questions that arise for determination in these petitions are:

(i) Are the HDs on which the intercepted telephone conversations have been recorded, ‘documents’ within the meaning of Section 173(5)(a) read with Section 207(v) CrPC

(ii) Can the prosecution decide which of the documents gathered by it during investigation are ‘relevant’ and therefore choose to ‘rely upon’ and furnish to the accused only copies of such documents under Section 207(v) CrPC or is the prosecution obliged to furnish copies of all documents gathered by it during investigation’

(iii) Even where the prosecution states that it is relying upon only some of the documents gathered by it during investigation, can the trial Court or this Court direct that a copy of (or inspection of) a certain document should nevertheless be given to an accused in recognition of the right of the accused to a proper and effective opportunity of being heard even at the stage of charge’

(iv) Does the denial to the accused at the pre-charge stage of copies of all documents gathered by the prosecution during investigation tantamount to a violation of the fundamental right to a fair trial under Article 21 of the Constitution’

(v) Is it sufficient compliance with Section 207(v) CrPC for the prosecution in the instant case to furnish copies of the CDs containing the relevant conversations or must it give to the accused copies of or at least an inspection of the original of those conversations as recorded in the HDs’ In other words, if the answer to question (i) is in the affirmative, relevant to the cases on hand, to what extent can the accused demand to be furnished with copies of or inspection of the HDs and in what form Issue (i): Are the Hard Discs documents 8.1 In order to appreciate why the question whether, in the instant cases, four hard discs are documents and of which copies can be demanded by the accused it is necessary to recapitulate the statutory provisions that mandate supply to the accused by the prosecution of the copies of those documents forwarded to the court along with the charge sheet which it proposes to rely upon as well as of those documents already sent to the court during investigation. The relevant provisions are Section 173(5)(a) and Section 207 CrPC, which read thus:

173. Report of police officer on completion of investigation.

(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-

(a) The names of the parties;

(b) The nature of the information;

(d) Whether any offence appears to have been committed and, if so, by whom;

(e) Whether the accused has been arrested;

(f) Whether he has been released on his bond and, if so, whether with or without sureties;

(g) Whether he has been forwarded in custody under Section 170.

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

(3) Where a superior officer of police has been appointed under Section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report-

(a) All documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) The statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in Sub-section (5).

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of’ Sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2)

207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following.

(i) the police report;

(ii) the first information report recorded under Section 154:

(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 part in regard to which a request for such exclusion has been made by the police officer under Sub-section (6) of Section 173.

(iv) The confessions and statements, if any, recorded under Section 164;

(v) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173:

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in Clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof’, direct that he will only be allowed to inspect it either personally or through pleader in Court.

8.2 The scheme of the above two Sections indicates that the Legislature has intended to differentiate between documents forwarded to a court by the police along with the charge sheet or sent to it earlier during the course of investigation on the one hand and the statements of prospective witnesses recorded by the police during investigation under Section 161 CrPC, copies of which are also forwarded to the Court along with the charge sheet, on the other. This is plain from the language of Section 173(5)(a) when compared with that of Section 173(5)(b) read with Section 173(6) and the first and second provisos to Section 207(v) CrPC. For instance, the reference in Section 173(6) to ‘any such statement’ is to the statement of witnesses referred to in Section 173(5)(b) CrPC, i.e statements recorded of prospective witnesses under Section 161 CrPC. In relation to these statements the police office has a discretion under Section 173(6) CrPC to withhold a part thereof if he forms an opinion that it is inexpedient in public interest to do so and inform the Magistrate accordingly. Further, the first proviso to Section 207(v) gives a discretion to the Magistrate to provide to the accused even those statements which ‘the Magistrate thinks appropriate’ shall be furnished.

8.3 This is in contrast to the position regarding documents. Section 173(5)(a) CrPC refers to documents ‘on which the prosecution proposes to rely’ other than ‘those already sent to the Magistrate during the investigation’. These documents are to be forwarded to the Magistrate along with report. Therefore at the stage when the supply of documents has to be made in terms of Section 207(v) CrPC what the Magistrate has with him are those documents which have already been sent to the Magistrate during the course of investigation and those documents that are forwarded by the police officer along with the charge sheet. Under Section 207(v), the Magistrate has no discretion in the matter of not supplying such documents. The only limited discretion that the Magistrate has in terms of the second proviso to Section 207(v) CrPC is if the documents are so voluminous he can direct that the accused will be permitted only an inspection of the documents.

8.4. Since considerable importance is attached, on a reading of the aforementioned two provisions of the CrPC, to the supply to the accused of all the ‘documents’ proposed to be relied upon by the prosecution, the question that arises is whether the HDs are documents of which copies can be asked for by the accused. If the HDs are not documents at all and only storage devices as contended by the CBI, then the further question whether they are being relied upon by the CBI and whether copies thereof therefore need to be supplied to the accused will not arise.

8.5 The meaning of the word ‘document’ used in Section 173(5)(a) as well as Section 207(v) has to be appreciated in the present case in the context of the nature of document the copy of which is being sought. Here we are concerned with digital copies, in the form of voice executable. WAV (sound format) files, of the intercepted telephone conversations which were directly recorded on to an electronic device viz., the hard disc.

8.6 This can be better understood by referring to the meaning of the words ‘document’ and ‘evidence’ occurring in Section 3 of the EA. The said definitions read as under:

3 – Interpretation clause. In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:

“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.

“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) [all documents including electronic records produced for the inspection of the Court];

such documents are called documentary evidence.

Section 3 EA states that the expression ‘electronic record’ has the same meaning as attributed to it in the IT Act. Section 2(t) of the IT Act defines ‘electronic record’ to mean:

(t) “electronic record’` means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.

The word ‘data’ has been defined in Section 2(o) IT Act to mean:

(o) “data” means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer 8.7 A collective reading of the above definitions shows that an electronic record is not confined to data alone but it also means the record or data generated received or sent in an electronic form. The word ‘data’ includes ‘a representation of information, knowledge and facts’ which is either intended to be processed, is being processed ‘or has been processed in a computer system or computer network” or stored initially in the memory of computer.’ 8.8 The word ‘data’ therefore includes not only the active memory of the computer, in this case the hard disc, but even the subcutaneous memory. Indeed it was submitted by learned Counsel for CBI that there are six levels of memory in the hard discs and therefore an information which was written and then rewritten upon more than 5 times could still be retrieved from the subcutaneous memory of the hard disc. Even if there is a doubt whether that entire information can be reconstructed, certainly the information to the effect that the memory in the hard disc has been written and rewritten upon for over six times would be available. It is possible to analyze a hard disc with the help of a software programme, to find out on what date the information was first written with the exact time of such change. It is possible to retrieve such information in respect of each of the occasions when such information is removed and reinserted or changed on the hard disc.

8.9 While there can be no doubt that a hard disc is an electronic device used for storing information, once a blank hard disc is written upon it is subject to a change and to that extent it becomes an electronic record. Even if the hard disc is restored to its original position of a blank hard disc by erasing what was recorded on it, it would still retain information which indicates that some text or file in any form was recorded on it at one time and subsequently removed. By use of software programmes it is possible to find out the precise time when such changes occurred in the hard disc. To that extent even a blank hard disc which has once been used in any manner, for any purpose will contain some information and will therefore be an electronic record. This is of course peculiar to electronic devices like hard discs.

8.10 Therefore, when Section 65B EA talks of an electronic record produced by a computer (referred to as the computer output) it would also include a hard disc in which information was stored or was earlier stored or continues to be stored. There are two levels of an electronic record. One is the hard disc which once used itself becomes an electronic record in relation to the information regarding the changes the hard disc has been subject to and which information is retrievable from the hard disc by using a software programme. The other level of electronic record is the active accessible information recorded in the hard disc in the form of a text file, or sound file or a video file etc. Such information that is accessible can be converted or copied as such to another magnetic or electronic device like a CD, pen drive etc. Even a blank hard disc which contains no information but was once used for recording information can also be copied by producing a cloned had or a mirror image.

8.11. The conclusions that can be drawn from the above discussion are:

(a) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be a mere electronic storage device like any other hardware of the computer;

(b) Once the hard disc is subject to any change, then even if it restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous memory of the hard disc and can be retrieved by using software designed for that purpose;

(c) Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not at present contain any accessible information

(d) In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electronic record.

(e) Given the wide definition of the words ‘document’ and ‘evidence’ in the amended Section 3 the EA, read with Sections 2(o) and (t) IT Act, there can be no doubt that an electronic record is a document.

(f) The further conclusion is that the hard disc in the instant cases are themselves documents because admittedly they have been subject to changes with their having been used for recording telephonic conversations and then again subject to a change by certain of those files being copied on to CDs. They are electronic records for both their latent and patent characteristics.

(g) In the instant cases, for the purposes of Section 173(5)(a) read with Section 207(v) CrPC, not only would the CDs containing the relevant intercepted telephone conversations as copied from the HDs be considered to be electronic record and therefore documents but the HDs themselves would be electronic records and therefore documents.

Question (i) is answered accordingly.

Questions (ii) and (iii): Discretion of the prosecution to decide what document it proposes to rely upon and powers of the Court 9.1 We are in present cases at a stage prior to the stage of framing of charges. At this pre-charge stage the accused are demanding to be supplied copies of documents in the form of four hard discs. According to them these are documents that have been gathered by the prosecution during investigation and sine they have been referred to extensively in the charge sheet they cannot be stated to be not relied upon by the prosecution for the purposes of Section 207(v) CrPC read with Section 173(5)(a) thereof.

9.2. The phrase ‘proposes to rely upon’ in Section 173(5)(a) CrPC indicates something that has to be done in the future i.e. at the stage of pressing the charges and thereafter. Therefore ideally in the charge sheet the prosecution would normally indicate the documents which it proposes to rely upon. The controversy in the present cases stems from the difference in the statements made or omitted to be made by the CBI in the charge sheets filed concerning the documents it proposes to rely upon.

9.3 In the charge sheet filed in the School case it is stated in para 44 as under:

List of witnesses and documents/ articles relied upon by the prosecution are enclosed herewith. Additional list of witnesses and documents will be furnished, if required in due course.

Annexure A to this charge sheet is the entire sequence of movement of the Model School file linking it to the relevant telephonic conversations. Annexure B is the transcript of the relevant telephonic conversations. Following this is the list of documents which lists out 59 documents with the note at the end which states ‘further list of documents will be submitted, if required.’ Following this is a list of witnesses which contains 70 names with a note at the end which states ‘further list of witnesses will be submitted, if required.’ 9.4 In the DLF case para 38 of the charge sheet reads as follows:

38. That the lists of witnesses, documents and material objects relied upon by the prosecution are enclosed herewith as per Annexures-I, II and III. Additional lists of witnesses, documents and material objects will be furnished, if required, in due course.

Enclosed with the charge sheet are the transcriptions of telephonic conversations as Annexure A, the sanctions for prosecution of the public servants, A1 to A3, the list of witnesses as per Annexure I, the list of documents in Annexure II which contains description of 126 documents and the list of material objects in Annexure III which lists 11 items. It is significant that these material objects do not include the HDs or the CDs whereas the list of documents includes the call information reports and call details of the relevant telephone numbers relevant to the case.

9.5 In the Lift Case the charge sheet encloses a list of witnesses which lists 91 witnesses, a list of documents which lists 104 documents, a list of articles which list so 5 articles. The charge sheet does not specifically state that the CBI is relying upon is the list of documents appended but since this has been forwarded as such with the charge sheet, it must be presumed that it is proposed to be relied upon by the prosecution. In any event the charge sheet extensively refers to the conversations and the documents.

9.6 In each of the above three charge sheets, the CBI has not stated that it is proposing to rely upon the hard discs. However, it has also not said that it is not relying on them. The situation gets more complicated in the chargesheet filed in the Shamit Mukherjee case. There, unlike in the DLF case, there is no specific statement by the CBI as to what it is relying upon. Enclosed with the charge sheet is a list of witnesses containing names of 90 witnesses, with a note in the end stating ‘additional list of witnesses if any will be submitted in due course of time.’ Then we have a list of documents which lists out 105 documents with a similar note in the end stating ‘additional list of documents, if any, will be submitted in due course of time. Then we have a list of articles which sets out 15 articles and contains a note in the end stating ‘additional list of articles if any, will be submitted in due course of time. In this list of articles serial No. 1 to 7 detail the 19 CDs referred to earlier. Serial No. 8 to 11 mentions the 4 hard discs. Sl Nos. 12 to 15 refer to the phones used in the conversations. Following this is Annexure 1 which lists out details of 100 short-listed calls from various CDs.

9.7 Learned Counsel appearing for the accused in the Shameet Mukherjee case urged that the prosecution having itself appended to the charge sheet a list of materials including the 4 hard discs and not having stated in the charge sheet that it was not relying on those materials, cannot now be heard to say that it will not supply to the accused all that is mentioned in the charge sheet. On the contrary, it is submitted by learned Counsel for the CBI that it has annexed to the chargesheet a list of 100 relevant calls and obviously the CBI proposes to rely upon only those 100 relevant calls.

9.8 The question that arises is whether the prosecution can itself decide what it wants to rely upon among the documents it has gathered during investigation and leave out documents which may or may not help the accused in the defense of their case’ 9.9 A reading of Sections 173(5)(a) and Section 207(v) CrPC indicates that there is very little discretion left with the court to substitute its opinion as to what the prosecution should be relying upon for proving its case. Where the prosecution categorically sates in the charge sheet that it is relying on only certain documents and not others, it is not possible for the court to overlook that and insist that the prosecution should also rely upon some other document that it has gathered and therefore should provide the accused with a copy thereof. It does appear that in the matter of documents, the Court does not have the discretion of the type urged by the counsel for the petitioners.

9.10 There are also other good reasons why the trial courts should not be asked to undertake the task of requiring copies all documents gathered by the during investigation to be provided to the accused notwithstanding the fact that the prosecution says that it is relying only upon some of them for the purposes of the case. There are limited powers of the criminal courts circumscribed by the CrPC. To expect a judge to sit in judgment over what the prosecution considers to be documents worth relying upon even at the pre-charge stage of is to require the trial court to perform a task it is plainly not expected to perform upon a reading of the various provisions of the CrPC. The CrPC also envisages that at different stages of the progress of the criminal proceedings, the trial court is expected to get increasingly involved. For instance, the degree of scrutiny of materials at the stage of cognizance will of course not be as strict as at the stage of pre-charge and charge and would increase at the stage of framing of charge. There are provisions to take care of contingencies when in his defense the accused wants to summon documents or witnesses. There is also Section 91 CrPC. However, for the purposes of the present case, it is sufficient to observe that at the pre-charge stage the trial court is not expected to insist that copy of each and every document gathered by the prosecution must be furnished to the accused irrespective of what the prosecution proposes to rely upon.

9.11 Where of course the prosecution is silent in the chargesheet about what it is relying upon, then two courses are available to the court to follow. One is to proceed on the basis that whatever document is forwarded with the chargesheet is in fact proposed to be relied upon by the prosecution. For instance, in the Lift Case, a list of documents is attached; the court at the pre-charge stage has to proceed on the basis that those are the documents that are proposed to be relied upon by the prosecution. Where the accused insists that some other document apart from what is stated in the list of documents is being relied upon by the prosecution as is evident from a reading of the charge sheet, the court can examine such submission and if it is satisfied that the charge sheet does in fact indicate that some other document is also being relied upon, then it can require the prosecution to furnish the accused a copy of such document as well. As will be seen hereafter, in the Shameet Mukherjee case, in view of what is stated in the chargesheet, it appears to this Court that the prosecution is relying upon conversations other than the 100 relevant conversations it has mentioned in the list appended to it.

9.12 The position may be different when it comes to statement of witnesses as already noticed hereinbefore. There Section 173(5)(b) read with Section 173(6) CrPC and the first proviso to Section 207(v) CrPC indicates that the court has some element of discretion on what it wants the accused to be furnished even at the pre-charge stage. That is why the number of decisions relied upon by the petitioners do not have much relevance for the purposes of the present case.

9.13 In reply filed in one of these petitions i.e. Crl.M.C. 6476 of 2005 the stand taken by the CBI in relation to its reliance upon the hard discs is two- fold. In para 7 it is stated that ‘the hard discs are relied upon document in the sense that they will be proved in terms of Section 65A and 65B of the EA and, therefore, what is tendered in the trial court would be documents in the nature of compact disc and other related media/printout which would be deemed as original in terms of those Sections’. It is stated that the original system have already been certified for the purity and there is no legal requirement for their production in the trial. It is then stated that in para 12 ‘the said hard discs would be produced by the relevant witnesses at the time of cross- examination for the limited purpose of satisfying the Court in respect of duration of relied upon phone calls in terms of the judgment of the Supreme Court in State v. Navjot Sandhu . This much is therefore clear. Even for a limited purpose the CBI says that it is relying on the HDs. The question is to what extent it is.

9.14 There are two issues that arise in this context. In the first place whether the CDs which have recorded the relevant telephone conversations in each case has to be considered to be the original documents and therefore does not require to be proved in terms of Section 65B(1) by producing the original recording made in the HDs as long as the CBI satisfies the Court that the requirement of Section 65B(2) have been complied with. The second is whether it is open to the CBI to contend that only certain calls of the total intercepted ones are ‘relevant’ are therefore being relied upon; and that since CDs containing those calls have been provided to the accused, there is no obligation to provide mirror copies of the entire hard disc or even provide an inspection thereof either to the accused or to the Court.

9.15 In order to test this submission of the CBI a reference has necessarily to be made to Section 65B EA which reads thus:

65B Admissibility of electronic records. (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in Sub-section (1) in respect of a computer output shall be the following, namely:

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in Clause (a) of Sub-section (2) was regularly performed by computers, whether’

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in the section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,–

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in Sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,-

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.-For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived there from by calculation, comparison or any other process.] 9.16 A perusal of the title to Section 65B EA which has been introduced by an Amendment made in 2000 simultaneous with the enactment of the IT Act with effect from 17th October, 2000 indicates that it concerns ‘admissibility of the electronic records’ at the stage of the trial when the question arises whether a certain electronic record is admissible in evidence or not. Section 65B(1) states that if any information contained in an electronic record produced from a computer (known as computer output) has been copied on to a optical or magnetic media, then such electronic record that has been copied ‘shall be deemed to be also a document’ subject to conditions set out in Section 65B(2) being satisfied. Both in relation to the information as well as the computer in question such document ‘shall be admissible in any proceedings when further proof or production of the original as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.’ 9.17 The conditions specified in Section 65(B)(2) are that the computer output containing the information should have been produced by the computer during the period over which the computer was used regularly to store or process information for the purpose of any activities regularly carried on over that period by the person having lawful control over the use of the computer. It must also be shown that during the said period the information of the kind contained in electronic record or of the kind from which the information contained is derived was ‘regularly fed into the computer in the ordinary course of the said activity’. A third requirement is that during the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time that break did not affect either the record or the accuracy of its contents. The fourth requirement is that the information contained in the record should be a reproduction or derived from the information fed into the computer in the ordinary course of the said activity.

9.18 Under Section 65B(4) the certificate which identifies the electronic record containing the statement and describes the manner in which it was produced giving the particulars of the device involved in the production of that record and deals with the conditions mentioned in Section 65(B)(2) and is signed by a person occupying a responsible official position in relation to the operation of the relevant device ‘shall be evidence of any matter stated in the certificate.’ 9.19 Turning to the case on hand, it will be useful to recall the modus operandi adopted by the CBI, which is common to the four cases as explained in the chargesheets themselves. For instance, it is stated in the chargesheet filed in the DLF case in para 5 that:

as per the procedure of electronic computerised recording of telephone calls, the orders of the competent authority were conveyed to the concerned telephone company/companies who in turn provided parallel connectivity or leased lines to the CBI. These leased lines did not have any numbers, but were identified by pairs and colours of wires. These leased lines were connected directly with the identified hard disc of a computer through a voice logger. Every incoming and outgoing call of the monitored telephone numbers were automatically recorded on a WAV (sound format) file in the hard discs of the computers giving complete details viz., call time, call duration, calling party’s telephone number and called party telephone number through window operating system, voice logger drivers and voice executable WAV (sound format) files. The conversations recorded in these computer files were heard and two Call Information Reports containing 49 and 13 identified calls of conversations between accused persons relevant to this case were prepared and transferred into three compact discs and the same have been taken on record for investigation in this case. The compact discs so prepared are true replicas of recording done in the hard discs of the computer system through electro magnetic media. The purity of the process of recording has been certified by the Andhra Pradhesh Forensic Science Laboratory (APFSL), Hyderabad after examining the hard discs and compact discs vide their expert opinion NO.COM/12/2003 dated 22.07.2003. Shri N.S. Virk, Superintendent of Police, Special Unit, CBI has given a certificate as required under Section 65B of the Indian Evidence Act, 1872 for use of electronically generated information as admissible evidence.

9.20 In other words, the intercepted telephone conversations on the tapped telephones which were under electronic surveillance were being directly recorded through parallel leased lines in four hard discs (HDs) kept at the conference room of the SU of CBI. Each call had a separate file and was identifiable as such since it was in a voice executable WAV (sound format) format file. For convenience, the four computer systems in which the HDs were placed marked A, B, D and E for identification. The certificate issued by Shri Navdeep Singh Virk, Superintendent of Police, SU, CBI dated 7th June 2003 sets out the description of the four computer systems in which the HDs were located and explains further how the calls were recorded, copies made and of the relevant calls on audio CDs and the HDs then being taken over by the investigation unit of the CBI. The relevant portion of the said certificate reads as under:

1. That the information contained in the hard disks of the above mentioned 4 computer systems was regularly recorded into them in the ordinary course of the activities of my unit.

2. That during the period in question the above mentioned 4 computer systems were operating properly and there have been no such operational problems so as to affect the accuracy of the electronic record.

3. That the computer hardware and software used in the above said computer systems have built in security mechanisms.

4. The call content and call related information of the various telephone numbers monitored by this unit was recorded on the hard disks of the said four systems. Contents of the recorded telephone calls, which were given to the Investigating Officers from time to time, in the form of audio compact discs, are an output of the said computer systems.

5. That these above said computer systems are in working condition, till today, i.e. 7th June, 2003 when they are taken over by Sh M K Bhatt, Additional SP ACU (IX), Investigating Officer of RC 3A 2003-ACU X, AC-III, CBI Delhi for the purpose of investigation.

9.21 In the Shameet Mukherjee case, the letter dated 8th June 2003 sent by the CBI at the time of forwarding the 4 HDs and the 19 CDs to the APFSL for certification, indicates that the opinion of the APFSL was sought on two aspects. The first was for an ‘examination of the above hard discs of CPUs marked A,B,D and E in order to ascertain the continuity of recordings of the telephone numbers under surveillance in each of them, and to check for any kind of overwriting, interpolation or any other kind of editing/tampering and issuing of certification to this effect for each of the hard discs in the above CPUs.’ The second was to opine whether the copies of the calls transferred on the CDs were true copies of their original recordings on the hard discs. It was stated in para 4 (A) of the letter that:

4. Your expert opinion is solicited on the following:

A) Hard Disc of CPU marked A purported to contain the original recording of the following numbers for the 9810258734 from 14.1.2003 to 20.3.2003 20050871 from 14.1.2003 to 05.02.2003 24311053 from 01.02.2003 to 25.02.2003 9.22 The letter then sought the opinion of the APFSL with reference to the particular intercepted conversations on identified telephone numbers, between specified dates, the original recording of which was purportedly contained in the hard disc.

9.23 The reply dated 22nd July 2003 of the APFSL indicates that the hardware had been physically examined and that there was ‘examination of storage media using DIBS forensic work station, which is a computer forensic tool, comprises of both hardware and analyzer software an unauthorized tool for Scotland yard Police Federal Bureau of Investigation and other premier investigation agencies.’ The opinion in regard to the 5 CPUs, one IDE hard disc and the 19 CDs was as under: ‘Item nos. 1 to 7 are analyzed and found that all are in working condition. Item No. 1 to 4 are I.D.E. hard disks containing windows operating system, voice Item No. 1 and 2 have logger drivers, media player programme, voice logging executable files, WAV file conversation executable file which can be used for logging/recording the telephonic conversation.’ 9.24 Thereafter opinion is given on the particular audio files of conversations were verified and a report given thereon. For instance, with regard to ‘audio files recorded with extension VTM from 21.12.2002 to 24.05.2003 in different partitions’, the opinion was as follows:

Each audio file is verified using forensic work station with respect to creation date/time, update/time corresponding to the details provided in the above reference letter in the form of the hard copy under recorded calls information report containing the date and time, duration of the calls from different telephones logged on to the computer through different voice logging cannels and found that the time and dates and duration the calls are tallying with the audio files contained in the hard disk.

9.25 A perusal of the entire procedure outlined hereinabove indicates that the purpose of sending the hard discs to the APFSL was two fold. The prosecution has sent to the APFSL the hard discs not for the purposes of certifying all that was contained in the hard disc. The APFSL was to certify on a physical examination that the hard discs were in a proper working condition in terms of Section 65B(2)(c) EA read with Section 65B(4) thereof. Secondly APFSL was to certify whether the relevant intercepted telephone calls copied on the CDs are in fact tallying with the original recordings of those calls in the hard disc. The scope of the examination by the APFSL was therefore to find out whether the hard disc was properly functioning and whether in respect of the calls copied on to the CDs the corresponding files in the HDs pertaining to those calls have been overwritten modified interpolated in any manner. Only to this extent can it be said that the HDs are being relied upon by the prosecution.

9.26 While the certification by the APFSL may enable the CBI to avoid producing the original recordings of the conversations in the HDs for the purposes of proof it cannot obviate the statutory requirement under Section 207(v) of providing to the accused access to the original recording of the relevant intercepted telephone conversation as a relied upon document. The stage of proof would be at the trial. At the present pre-charge stage, the accused has to be given access to the HDs as a relied upon document to the limited extent as explained hereinbefore.

9.27 It was then argued that in a statement recorded under Section 161 CrPC, Inspector M.C. Kashyap adverts to the fact that he listened to all the conversations before deciding on the relevant calls. It is submitted that this statement has in turn referred to all the calls in the hard discs. This Court is unable to agree. One thing is to say is that the evidence was collected of a large number of calls but that does not mean that the prosecution would be relying upon all those calls. A mere reference to these calls which were listened to in the course of the investigation would not make them automatically relied upon. The prosecution has to therefore indicate to the court what it proposes to rely upon. It cannot be said that in determining what it proposes to rely upon the prosecution is indulging in pick and choose. The very scheme of the Section 173(5) requires the prosecution to tell the court that it has relied upon this or that document. It is not possible to imagine that the learned trial court has itself to perform the exercise of examining the entire document collected by the prosecution and then determine what the prosecution shall rely upon. It is inconceivable and impractical to proceed on the basis that all the material gathered during investigation is to be relied upon by the prosecution. It is not possible to accede to the contention of the petitioners that each and every document that the prosecution gathers should be deemed to be relied upon. That is contrary to the scheme of the CrPC.

9.28 There is yet another aspect in the Shameet Mukherjee case concerning the relied upon calls that requires to be dealt with. The case of the prosecution is that it is relying upon only 100 relevant calls and therefore it is sufficient if the accused are furnished the CDs of those 100 calls at the stage of pre- charge. The explanation for the said 100 short-listed calls is contained in para 21 of the charge sheet which reads as under:

21. That as per the procedure followed by the Special Unit of CBI in computerized telephonic surveillance, the orders of the competent authority are conveyed to the concerned telephone company who in turn provide a parallel connectivity to CBI. Every incoming and outgoing call of each monitored telephone number is automatically recorded in the hard disc of the computer giving the complete details of the monitored number, the call time and duration.

The conversations so recorded were heard and the relevant calls between accused persons, were copied onto 19 Compact Discs and taken on record for investigation. The Compact Discs so prepared are a true copy of the recordings in the hard discs of the relevant computer system. The integrity of the process of recording has been certified by the Andhra Pradesh Forensic Science Laboratory (APFSL), Hyderabad after examining the hard discs and the 19 Compact Discs vide their Expert Opinion No. COM/10/2003 dated 7.7.2003. The APFSL opined that each audio file in each hard disc was verified by their experts by using a standardized forensic work station with the parameters of creation date/time and the date/time corresponding to the details provided to them in the form the hard copy and found that the time, date and duration were tallying with the audio files contained in the four hard discs. The experts of APFSL have also opined that the 100 shortlisted telephonic conversations relevant to this case as listed vide Annexure-I and other calls, recorded electronically on computer, were on the relevant hard discs of the relevant computers of the Special Unit of CBI. Shri N.S. Virk, Superintendent of Police, Special Unit, CBI, New Delhi has given a Certificate under Section 65B of the Indian Evidence Act, 1892 for use of electronically generated records as admissible evidence.

9.29 It is clear from the reading of the above paragraph that the CBI itself contends that 768 calls contained in 19 CDs are ‘relevant’ for the case. The CBI states that these 768 calls were further screened to arrive at the further 100 relevant calls. On a reading of the above paragraph of the charge sheet it is not possible to conclude that the CBI was not proposing to rely upon the 768 calls contained in the 19 CDs. In fact it sent these 19 CDs for certification to the APFSL. This Court, therefore, comes to the conclusion that as far as the charge sheet in Shameet Mukherjee case is concerned, notwithstanding the fact that the CBI has not included the 768 calls in the 19 CDs in the list of documents appended to the charge sheet, the court must proceed on the basis that the CBI proposes to rely upon these 19 CDs containing 768 calls as well. The consequence is that in terms of Section 207(v) read with Section 173(5)(a) CrPC each of the accused in the Shameet Mukherjee case is entitled to be provided with copies of the 19 CDs containing the 768 calls.

9.30 To summarise the conclusions on questions (ii) and (iii):

(a) In terms of Sections 207(v) read with Section 173(5)(a) CrPC, the prosecution is obliged to furnish to the accused copies of only such documents that it proposes to rely upon as indicated in the charge sheet or of those already sent to the court during investigation;

(b) The trial court or this Court cannot, at the pre-charge stage, direct the prosecution to furnish copies of documents other than that which it proposes to rely upon or which have already been sent to the court during investigation;

(c) At the pre-charge stage the trial court is not expected to insist that copy of each and every document gathered by the prosecution must be furnished to the accused irrespective of what the prosecution proposes to rely upon.

(d) The prosecution is bound to indicate in the charge sheet submitted to the Court the documents it is proposing to rely upon for persuading the court to frame a charge against the accused. If it fails to do so, the court will proceed on the basis that whatever document is forwarded with the chargesheet is in fact proposed to be relied upon by the prosecution. Where the accused insists that some other document apart from what is stated in the list of documents should be taken as being relied upon by the prosecution, as is evident from a reading of the charge sheet, the court can examine such submission and if it is satisfied that the charge sheet does in fact indicate that some other document is also proposed to be relied upon by the prosecution, then it can require the prosecution to furnish the accused a copy of such document as well.

(e) In the instant case, the scope of the examination by the APFSL was to find out whether the hard discs were properly functioning and whether in the calls copied on to the CDs are true copies when compared with the corresponding files in the HDs pertaining to those calls. Only to this extent can it be said that the HDs are being relied upon by the prosecution.

(f) The certification in terms of Section 65B(4) EA Act does not obviate the statutory requirement under Section 207(v) of providing to the accused access to the original recording of the relevant intercepted telephone conversation as a relied upon document.

(g) As far as the Shameet Mukherjee case is concerned, in view of what is stated in para 21 of the charge sheet in that case, the court has to proceed on the basis that the CBI proposes to rely upon the 19 CDs containing 768 calls in addition to the document listed by it in the annexure to the charge sheet. Therefore each of the accused in the Shameet Mukherjee case is entitled to be provided with copies of the 19 CDs containing the 768 calls.

Question (iv): Is the right to a fair trial violated’ 10.1 Extensive arguments were addressed on the basis of Article 21 of the Constitution. It was contended that the denial of a copy of each and every document gathered by the prosecution during the investigation to the accused at the pre-charge stage would violate the fundamental right of the accused to a fair trial as enshrined in Articles 20, 21 and 22 of the Constitution. It was also contended that short of a challenge to the constitutional validity of the provisions, the words ‘all documents’on which the prosecution proposes to rely’.’ occurring in Section 173(5)(a) CrPC should be read down to mean ‘all documents’.which have been gathered by the prosecution during investigation’.’ It was urged that the principle of purposive construction must be adopted to advance the right to a fair trial which is the running thread through the entire CrPC.

10.2 There is no challenge in these petitions to the constitutional validity of either Section 173(5)(a) or Section 207(v) CrPC which are exhaustive of what can be provided to an accused as documents at the pre-charge stage. As long as the said provisions of the CrPC are strictly complied with, and they should be insisted upon being strictly followed, there can be no quarrel that they encapsulate and operationalise the procedural due process requirements of the provisions of the Constitution. Therefore, if the prosecution is able to show that it has complied with the said provisions at the pre-charge stage then the accused cannot be heard to say that the denial of a document that falls outside the scope of those provisions would still constitute a violation of the fundamental right to a fair trial.

10.3 Reliance was placed on the judgment of the Supreme Court in Hindustan Construction Company Ltd. v. Union of India in support of the proposition that the copy of a document must be full and accurate reproduction of the original. This was in an arbitration case and really does not advance the case of the petitioners. Reliance was placed on the judgment in Union of India v. Purnanda Biswas where it was said that the document favoring the accused not annexed to the charge sheet would vitiate the trial. It requires to be noticed that the said decision was not dealing with the right of the accused at the pre-charge stage and therefore the question of scope of Section 207(v) Cr PC did not arise for consideration. For the same reason the decisions under the law of preventive detention, viz. Khudi Ram v. State of West Bengal and M. Ahmed Kutty v. Union of India can have no application in the instant case. The question involved in the decision in Ashok Kumar Aggarwal v. CBI 2007 (4) JCC 2429 concerns the statements of witnesses under Section 161 and whether that was relevant for the purposes of grant of sanction. Likewise the decision in Ashok Kumar Aggarwal v. CBI 2007 (4) JCC 2557 concerning the relevance of a statement made under Section 164 CrPC for the grant of pardon to the approver is also of no relevance here.

10.4 In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Satyen Bhowmick AIR 1981 SCC 917 the Supreme Court was considering the scope of Section 14 of the Official Secrets Act, 1923 and held that the said provision cannot take away the right of the accused to get copies of statement recorded of witnesses or documents obtained by the police during investigation. The question whether each and every document collected by the police during investigation should be furnished to the accused at the pre-charge stage or whether it was limited by Section 173(5)(a) read with Section 207(v) CrPC clearly did not arise for consideration there. Reference was then made to State of Uttar Pradesh v. Lakshmi Brahman (1983) 2 SCC 3872 where the Supreme Court observed that the language of Section 207 CrPC was mandatory and the furnishing of copies by the Magistrate to the accused was not an administrative but a judicial function. In any event, the said judgment nowhere states that all documents collected by the prosecution at the stage of investigation should be provided to the accused at the pre-charge stage and that a denial thereof would constitute a violation of the fundamental right to a fair trial. The decision of the Gujarat High Court in Pravin Kumar Lalchand v. State of Gujarat 1982 Cri. L.J. 763 turned on its own facts. There since the enlarged photographs had been examined by the expert for giving the opinion, it was held that the said document cannot be denied to the accused. In the instant case the APFSL has not been asked to certify the entire contents of the 4 HDs but as pointed out earlier have compared the conversations recorded on the CDs with their original recordings in the HDs. Therefore, this case is of no assistance to the petitioners.

10.5 Reliance was also placed on the judgments in Shakuntala v. State , Pravin Kumar Lalchand Shah v. State of Gujarat ( 1982) Cri. L. J. 76, S.J. Chowdhary v. State 1984 Cri. L. J. 864, State of Kerala v. Raghavan 1974 Cri. L. J. 1373, and Shiv Narayan Kachawa v. State of Rajasthan (1985) Cri. L. J. 761 to contend that nothing can prevent the Court from forming an opinion that a certain document is essential for the defense of the accused and no such document can be denied even by the prosecution. After perusing each of these decisions, this Court finds that either the facts there did not deal with the question of supply of documents at the pre-charge stage or even if they did, it did not involve the interpretation of what was proposed to be relied upon by the prosecution as stated in the charge sheets filed in those cases.

10.6 None of the decisions cited by the petitioners support their contention that the denial to the accused at the pre-charge stage of a copy of each and every document gathered during investigation by the prosecution would constitute a violation of the fundamental right of the accused to a fair trial. Question (iv) is answered accordingly.

11.1 Some of the other contentions raised are now taken up for consideration. A reference was made to Sections 74 and 76 of the EA to contend that the hard discs are themselves public documents, access to which cannot be denied. The decision of this Court in Ram Jethmalani v. Director, CBI 1987 Cri. L.J. 570 was relied upon for this purpose. It is noticed that the said case was in the context of the statement recorded by the police under Section 161 CrPC being considered to be a public document. The case was not about documents gathered during investigation, which as explained, stand on a different footing in the context of the two provisions that we are immediately concerned with. The argument that hard disc is a public document which the petitioner has a right to inspect, need not to be gone into in view of the finding of this Court that what is recorded in the hard discs is in fact an electronic record to which the petitioner can insist upon an inspection but limited to the extent that it relates to the calls which the CBI has relied upon for the purposes of the case.

11.2 It was then submitted that under Section 165 CrPC the prosecution was duty bound to submit the documents immediately to the Magistrate which was not done in the instant case for over two years after their seizure. It is also submitted that under Section 457 the seized documents are required to be deposited in the Court, which was not done. It is stated that even now hard discs have been kept in Hyderabad and not in the control of the Court. The contention of the CBI is that the learned Special Judge has been informed that the hard discs are in the custody of APFSL and this satisfies the statutory requirement. Whether in fact the documents evidencing seizures were not produced as part of the chargesheet, or the documents themselves were not produced before the court immediately after seizure, whether evidence was collected illegally and whether that has prejudiced the rights of the accused is a matter that can be examined at a subsequent stage. It would be open to the accused to show how it has been prejudiced by the non-compliance, if any, of these provisions.

11.3 An argument was made about the non-compliance with Rule 419 A and Section 5(2) of the Telegraph Act. Reliance was placed on the judgment in Pooran Mal v. The Director of Inspection (Investigation), New Delhi where it was held that if the evidence is illegally gathered it can still be relied upon by the agency. Counsel for the petitioner submitted that there is an observation in the said decision to the effect that this rule does not apply where the gathering of such evidence is expressly prohibited by law. The question whether the evidence has been gathered contrary to any express or implied provision as mentioned in Pooran Mal, cannot be determined without examination of evidence in that behalf. This necessarily means that this exercise cannot be performed at the pre-charge stage. It is open to the petitioner to raise this point at the appropriate stage.

11.4 An apprehension was expressed by the counsel for the accused that in the impugned order the learned Special Judge has foreclosed their arguments which can be advanced at the stage of trial. This Court would like to clarify that none of the defenses available to the accused during the trial would be foreclosed either by the order of the learned Special Judge or by this order. Of course, the accused will not be permitted to again file the application asking for the same relief which has been declined to them by the impugned order by the learned Special Judge as modified by this order.

11.5 Extensive arguments were made on the basis of the judgment of the Supreme Court in State of Orissa v. Debendra Nath Padhi . The first paragraph of the judgment indicates that the Court was considering a case where accused wanted to produce certain documents even at the stage of framing of charge. That was declined by the Supreme Court. In the present case the accused are not seeking to produce any document and they are seeking copies of the hard discs which have been referred to in the charge sheets by the prosecution. Therefore this Court does not consider it necessary to discuss the decision in Debendra Nath Padhi.

11.6 It was submitted that unless they are given mirror images of the HDs, it will not be possible for the accused to demonstrate that any of the calls relied upon by the prosecution vis-‘-vis an accused has been altered or tampered with in any manner. The stage of questioning whether such documents have been tampered with is certainly not the pre-charge stage. That opportunity will be available to the accused at a subsequent stage.

11.7 An elaborate argument has been made about the scope of Section 239 CrPC which is different from Section 227 CrPC. It is submitted that even at the pre charge stage it is open to the accused to apply to the court to ask for being examined. It is submitted that Section 227 is silent and therefore the right of an accused even at the stage of pre-charge before the Magistrate under Section 239 is wider in terms of the principle of natural justice. It is submitted when a request is made by an accused to access a document such request must be granted by the Court. This Court is unable to accept this submission. There is no application by an accused here seeking to produce a document or asking to be examined at the pre-charge stage. The request by the accused here is for being supplied with copies of documents, which according to them, have been wrongly withheld by the prosecution. Such a request would have to be considered within the scope of Section 207(v) read with Section 173(5)(a) CrPC.

11.8 It was stated that the stage of framing of charge is as important as trial itself and therefore every information that has been gathered by the prosecution has to be provided at this stage itself. It is not possible for this Court to agree with this contention. The stage of framing of charge has been explained to be different from the stage of the trial in various decisions of the Supreme Court. The observations in State of Bihar v. Ramesh Singh , Superintendent and Remembrancer v. Anil Kumar Bhunja and Soma Chakravarty v. State (2007) 4 SCC 274 are relevant.

Question (v): How should the accused be provided access to the Hard Discs’ 12.1 The question then arises whether, for the purposes of compliance with the requirement of Section 207(v) CrPC, the accused petitioners should be given copies of all the conversations stored in voice files in the hard disc or is it enough to give them an inspection thereof. As already noticed, the four hard discs contain information pertaining to calls between persons not connected with the present cases. The accused cannot possibly claim access to this information. Apart from the issue of privacy of such other persons, it is also not warranted under the interpretation placed by this Court on the relevant statutory provisions.

12.2 There are bound to be problems in requiring further certification for providing copies of the original recordings from hard disc itself. Such certification can also be doubted by the accused who might insist on access to the original recording themselves. In fact counsel for the petitioners submitted that the copies of the conversations in the form of sound files transferred to the CDs supplied to them does not contain many of the call parameters which are certified to be present in the hard discs.

12.3 The appropriate approach to be adopted in cases concerning computer database has been discussed in a judgment of the Chancery Division in England in Darby and Co. Ltd. v. Weldon 1991 (2) All.E.R. Ch D 901. There it was held that merely because information was not capable of being visually inspected, it cannot be said that the format in which it is recorded is not a document. It was pointed out that there are difficulties in giving access to inspect information stored in the database of a computer. It was observed that there may be irrelevant or privileged material which should not be provided access to; further it is possible for a party to frustrate the attempted inspection by reprogramming the entire computer in such a manner that information previously retrievable, cannot be retrieved without reprogramming; at the same time the access has to be arranged only after ensuring that the database itself does not get damaged as a result of such access and the interference with the everyday use of the computer is also minimised. It was pointed out that there was a discretion in the court to consider ‘if necessary in the light of expert evidence, what information is or can be made available, or how far it is necessary for there to be inspection of copying of the original document (database) or whether the provision of printouts or hard copies is sufficient, what safeguards should be incorporated to avoid damage to the database.’ 12.4 On a careful consideration of the submissions of the learned Counsel for the petitioners, this Court concludes that it would be appropriate if, consistent with the requirement of Section 207(v) CrPC that the accused petitioners are permitted to listen to the original recordings of the relevant intercepted telephonic conversations relied upon by the prosecution in each of the four cases by having the said original recordings played directly from the hard discs in the presence of the accused or their representatives, their counsel and the learned Judge. At the pre-charge stage, there is no requirement for mirror images of the entire hard discs to be made available to the accused for this purpose. It is made clear however, that this will not foreclose the right of the accused, at the stage of the trial, for the purposes of cross- examining the witnesses of the APFSL to have access to the hard discs.

12.5 This Court directs that for the above purpose the four hard discs, which were sealed and sent to the APFSL, Hyderabad by the CBI for certification of the recorded relevant telephonic conversations, should immediately be brought back to Delhi. Learned Counsel for the CBI informs that as required by the CBI Manual cloned mirror images copies of the HDs have been made by the APFSL and these are also available in Hyderabad. It is,therefore, directed that the cloned copies of the four HDs can be retained at the APFSL, Hyderabad while the sealed hard discs sent to the APFSL should be brought back to Delhi within a period of six days from today and in any event not later than 17th March 2008.

12.6 The four HDs so brought back, will be kept in an aseptic environment in a temperature controlled room in either the Cyber Crime Section of the CBI or any other similar convenient place with prior intimation to the learned Special Judge. This place should be immediately indentified by the CBI, in consultation with the learned Special Judge so that the four HDs when brought back are straightway taken and kept in the said place. It is made clear that hereafter the said four HDs would be in the control and subject to directions issued by the learned Special Judge. Nothing will be done in relation to those four HDs without orders of the Special Judge.

12.7 The learned Special Judge will fix three continuous dates between 18th March and 25th March, 2008 for the playing of the original recorded conversations of the relevant intercepted telephone calls relied upon by the CBI in each of the four cases directly from the HDs in the presence of the accused or their representatives, the counsel for the parties and in the presence of and subject to the directions of the learned Special Judge. The venue will be the very place where the four hard discs are to be kept immediately upon being brought back to New Delhi. Since the duration of these calls are not expected to be very long, the entire process should be ideally completed within a period of two to three days. This entire exercise should be completed on or before 25th March 2008. The parties will be permitted to listen to these conversations as they are played from the HDs and make notes. This will not be stage for advancing arguments on whether the original recording is different from copies furnished to the accused.

12.8 As regards the 19 CDs in the Shameet Mukherjee case, copies thereof of which have been directed to be provided to the accused in that case, it is made clear that the 768 calls on these 19 CDs need not be played from the hard discs at this stage. In other words, there will be no need to provide to the accused access to the entire 768 calls as recorded in the hard disc other than the 100 listed calls which the CBI is relying on. The reason for this is that the accused are will able to listen to the 768 calls from the CDs themselves. If any of those calls are exculpatory of the accused, then obviously the accused would not doubt the authenticity of the recording of such calls and will perhaps to seek rely upon, at an appropriate stage, on the certification of their authenticity by the APFSL. Likewise the CBI will also not question the authenticity of the recording of these 768 calls which have been certified as such by the APFSL. In the unlikely event of the 768 calls (other than the 100 listed calls) containing material that is inculpatory of the accused in the Shameet Mukherjee case, then in any event at the pre-charge stage the CBI would not be permitted to rely on such material. The accused would therefore not be prejudiced by this procedure.

12.9 If the accused in the Shameet Mukherjee case want to refer to any of the 768 calls (other than the 100 listed calls) in the course of their arguments on charge before the learned Special Judge, they can play such calls straight from the CD itself before the learned Special Judge as they have been doing with reference to the calls relied upon by the CBI, copies of which have already been provided to them in CDs.

Conclusions

13. To summarise the conclusions on the various questions:

(i) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be a mere electronic storage device like any other hardware of the computer. However, once a hard disc is subject to any change, then even if it restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous memory of the hard disc and can be retrieved by using software designed for that purpose. Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not contain any accessible information at present. In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electronic record.

(ii) Given the wide definition of the words ‘document’ and ‘evidence’ in the amended Section 3 the EA, read with Sections 2(o) and (t) IT Act, a Hard Disc which at any time has been subject to a change of any kind is an electronic record would therefore be a document within the meaning of Section 3 EA.

(iii) The further conclusion is that the hard disc in the instant cases are themselves documents because admittedly they have been subject to changes with their having been used for recording telephonic conversations and then again subject to a change by certain of those files being copied on to CDs. They are electronic records for both their latent and patent characteristics.

(iv) In the instant cases, for the purposes of Section 207(v) read with Section 173(5)(a) CrPC, not only would the CDs containing the relevant intercepted telephone conversations as copied from the HDs be considered to be electronic record and therefore documents but the HDs themselves would be electronic records and therefore documents.

(v) In terms of Sections 207(v) read with Section 173(5)(a) CrPC, the prosecution is obliged to furnish to the accused copies of only such documents that it proposes to rely upon as indicated in the charge sheet or of those already sent to the court during investigation.

(vi) The trial court or this Court cannot, at the pre-charge stage, direct the prosecution to furnish copies of documents other than that which it proposes to rely upon or which have already been sent to the court during investigation;

(vii) At the pre-charge stage the trial court cannot direct that a copy of each and every document gathered by the prosecution must be furnished to the accused irrespective of what the prosecution proposes to rely upon.

(viii) The prosecution is bound to indicate in the charge sheet submitted to the Court the documents it is proposing to rely upon for persuading the court to frame a charge against the accused. If it fails to do so, the court will proceed on the basis that whatever document is forwarded with the charge sheet is in fact proposed to be relied upon by the prosecution.

(ix) Where the accused insists that some other document apart from what is stated in the list of documents attached to a charge sheet should be taken as being proposed to be relied upon by the prosecution, and submits that this is evident from a reading of the charge sheet, the trial court will examine such submission and if it is satisfied that the charge sheet does in fact indicate that some other document is also proposed to be relied upon by the prosecution, then it can require the prosecution to furnish the accused a copy of such document as well.

(x) In the instant case, the scope of the examination by the APFSL was to find out whether the hard discs were properly functioning and whether the calls copied on to the CDs are true copies when compared with the corresponding files of original recording of those calls in the four HDs. Only to this extent can it be said that the HDs are being relied upon by the prosecution.

(xi) The certification in terms of Section 65B(4) EA Act does not obviate the statutory requirement under Section 207(v) of providing to the accused access to the original recording of the relevant intercepted telephone conversation as a relied upon document.

(xii) As far as the present cases are concerned, only those portions of the hard disc that relate to the files containing the original recording of the relevant intercepted telephone conversations would be ‘documents’ proposed to be relied upon by the prosecution in terms of Section 207(v) read with Section 173(5)(a) CrPC. Those files would be documents both as regards the file containing the actual conversation so recorded as well as constituting a record of any changes that such file may have been subject to thereafter.

(xiii) Therefore, only to the extent explained in (xii) above, the accused would have a right of inspection of the hard discs since making mirror image copies of the entire HDs is not called for in the circumstances explained in this judgment.

(xiv) As far as the Shameet Mukherjee case is concerned, in view of what is stated in para 21 of the charge sheet in that case, the court has to proceed on the basis that the CBI proposes to rely upon the 19 CDs containing 768 calls in addition to the documents listed by it in the annexure to the charge sheet. Therefore, each of the accused in the Shameet Mukherjee case is entitled to be provided with copies of the 19 CDs containing the 768 calls.

(xv) As long as the statutory requirements of Sections 207(v) read with 173(5)(a) CrPC are strictly complied with, and in the absence of any challenge to their constitutional validity, the failure to furnish to the accused by the prosecution at the pre-charge stage all documents gathered during investigation will not be a violation of the right to a fair trial under Article 21 of the Constitution (xvi) The inspection as indicated in Sub-para (xiii) above will be allowed by playing directly from the HDs the original recording of the relevant intercepted telephonic conversations in the presence of the accused or their authorized representatives, the counsel for the parties, the counsel for CBI and the learned Special Judge on two or three continuous days so that the said exercise is completed on or before March 25th 2008.

Final directions

14. Accordingly, these petitions are disposed of with the following directions:

(i) In the Shameet Mukherjee case, the CBI will provide to each of the accused copies of the 19 CDs which has been mentioned in para 21 of the charge sheet containing the 768 calls within a period of one week from today and in any event not later than 18th March, 2008.

(ii) The four hard discs sent by the CBI after sealing and to the APFSL for the purposes of certification will be immediately brought back and in any event not later than 17th March 2008. The cloned copies of the four hard discs certified as such by the APFSL will be retained by the APFSL in Hyderabad.

(iii) The four HDs so brought back, will be kept in an aseptic environment in a temperature controlled room in either the Cyber Crime Section of the CBI or any other similar convenient place with prior intimation to the learned Special Judge. This place should be immediately identified by the CBI, in consultation with the learned Special Judge so that the four HDs when brought back are straightway taken and kept in the said place.

(iv) It is made clear that hereafter the said four HDs would be in the control and subject to directions issued by the learned Special Judge. Nothing will be done in relation to those four HDs without orders of the Special Judge.

(v) The learned Special Judge will fix three continuous dates between 18th March and 25th March, 2008 for the playing of the original recorded conversations of the relevant intercepted telephone calls relied upon by the CBI in each of the four cases directly from the HDs in the presence of the accused or their representatives, the counsel for the parties and in the presence of and subject to the directions of the learned Special Judge. The venue will be the very place where the four hard discs are to be kept immediately upon being brought back to New Delhi. Since the duration of these calls are not expected to be very long the entire exercise should be completed on or before 25th March 2008.

(v) As regards the 19 CDs containing 768 calls this need not to be played at the stage from the hard disc. There will be no need to provide to the accused access to the entire 768 calls as recorded in the hard disc other than the 100 listed calls which the CBI is relying on. If the accused in the Shameet Mukherjee case want to refer to any of the 768 calls in the course of their arguments on charge before the learned Special Judge, they can play such calls straight from the CD itself before the learned Special Judge.

(vi) The arguments on charge thereafter be positively concluded in all the four cases on or before 30th April, 2008 and orders on charge be passed on or before 31st May, 2008 Each of the learned Counsel will cooperate in this entire exercise.

15. The petitions and the applications stand disposed of.

EVIDENCE

How to produce Evidence

16 Oct 2017 Advocatetanmoy

CODE OF CRIMINAL PROCEDURE

PART III (CH 7 T0 11)
PRODUCTION AND EFFECT OF EVIDENCE ( SS 101-167)
प्रासंगिक तथ्यों के परिबेसन एबम परिणाम

CHAPTER VII
OF THE BURDEN OF PROOF(ss101-114A)

101. Burden of proof— Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustrations
(a)A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime.
(b)A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true.
A must prove the existence of those facts.

102. ON WHOM BURDEN OF PROOF LIES — The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Illustrations
(a)A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father.
If no evidence were given on either side, B would be entitled to retain his possession.
Therefore the burden of proof is on A.
(b)A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved.
Therefore the burden of proof is on B.

103. Burden of proof as to particular fact— The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Illustration
(a)A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.

104. Burden of proving fact to be proved to make evidence admissible.— The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
Illustrations
(a)A wishes to prove a dying declaration by B. A must prove B’s death.
(b)A wishes to prove, by secondary evidence, the contents of a lost document.
A must prove that the document has been lost.
105. Burden of proving that case of accused comes within exceptions.— When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustrations
(a)A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.
The burden of proof is on A.
(b)A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control.
The burden of proof is on A.
(c)Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances bringing the case under section 335 lies on A.

106. Burden of proving fact especially within knowledge— When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a)When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b)A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

107. Burden of proving death of person known to have been alive within thirty years.— When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

108. Burden of proving that person is alive who has not been heard of for seven years— Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.—

109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent— When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it.

110. Burden of proof as to ownership — When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

111. Proof of good faith in transactions where one party is in relation of active confidence— Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
Illustrations
(a)The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.
(b)The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.

111A. Presumption as to certain offences —
(1) Where a person is accused of having committed any offence specified in sub-section (2), in—
(a)any area declared to be a disturbed areas under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or
(b)any area in which there has been, over a period of more than one month, extensive disturbance of the public peace,
and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contrary is shown, that such person had committed such offence.
(2) The offences referred to in sub-section (1) are the following, namely:—
(a)an offence under section 121, section 121A section 122 or section 123 of the Indian Penal Code (45 of 1860);
(b)criminal conspiracy or attempt to commit, or abatement of, an offence under section 122 or section 123 of the Indian Penal Code (45 of 1860).

112. BIRTH DURING MARRIAGE, CONCLUSIVE PROOF OF LEGITIMACY — The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

113. Proof of cession of territory— A notification in the Official Gazette that any portion of British territory has before the commencement of Part III of the Government of India Act, 1935 (26 Geo. 5, ch. 2) been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification.—

113A. Presumption as to abetment of suicide by a married woman— When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.1113A. Presumption as to abetment of suicide by a married woman.—
Explanation.— For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).

113B. PRESUMPTION AS TO DOWRY DEATH— When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.— For the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).

114. COURT MAY PRESUME EXISTENCE OF CERTAIN FACTS— The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations
The Court may presume—
(a)That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b)That an accomplice is unworthy of credit, unless he is corroborated in material particulars;
(c)That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(d)That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;
(e)That judicial and official acts have been regularly performed;
(f)That the common course of business has been followed in particular cases;
(g)That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
(h)That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;
(i)That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:—
As to illustration (a) — A shop-keeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;
As to illustration (b)—A, a person of the highest character, is tried for causing a man’s death by an act of negligence in arranging certain machinery. B , a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;
As to illustration (b)—A crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D , and the accounts corroborate each other in such a manner as to render previous concert highly improbable;
As to illustration (c)— A, the drawer of a bill of exchange, was a man of business. B , the acceptor, was young and ignorant person, completely under A’s influence;
As to illustration (d)—It is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;
As to illustration (e)—A judicial act, the regularity of which is in question, was performed under exceptional circumstances;
As to illustration (f)—The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
As to illustration (g)—A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;
As to illustration (h)—A man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;
As to illustration (i)—A bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.

114A. PRESUMPTION AS TO ABSENCE OF CONSENT IN CERTAIN PROSECUTION FOR RAPE— In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
Explanation.— In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code (45 of 1860).

Devider

CHAPTER VIII
ESTOPPEL

115. Estoppel.— When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
Illustration
A intentionally and falsely leads B to believe that certain land belongs to A , and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.
116. Estoppel of tenant; and of licensee of person in possession.— No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.
117. Estoppel of acceptor of bill of exchange, bailee or licensee.— No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorese it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or licence commenced, authority to make such bailment or grant such licence.
Explanation 1.— The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.
Explanation 2.— If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor.

Devider

CHAPTER IX
OF WITNESSES(ss118-134)

118. Who may testify— All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation.— A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
119. Witness unable to communicate verbally:- A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence:
Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be video graphed.
120. Parties to civil suit, and their wives or husbands- Husband or wife of person under criminal trial— In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.
121. Judges and Magistrates— No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any question as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.
Illustrations
(a)A, on his trial before the Court of Sessions, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court.
(b)A is accused before the Court of Sessions of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of the superior Court.
(c)A is accused before the Court of Sessions of attempting to murder a police officer whilst on his trial before B, a Sessions Judge. B may be examined as to what occurred.
122. Communications during marriage — No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.
123. Evidence as to affairs of State — No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
124. Official communications — No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.
125. Information as to commission of offences — No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.
Explanation.— “Revenue officer” in this section means an officer employed in or about the business of any branch of the public revenue.
126. Professional communications — No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure—
(1) Any such communication made in furtherance of any illegal purpose;
(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.
Explanation.— The obligation stated in this section continues after the employment has ceased.
Illustrations
(a)A, a client, says to B, an attorney—“I have committed forgery, and I wish you to defend me”.
As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.
(b)A, a client, says to B, an attorney—“I wish to obtain possession of property by the use of a forged deed on which I request you to sue”.
This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.
(c)A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A’s account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.
127. Section 126 to apply to interpreters, etc — The provisions of section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys, and vakils.
128. Privilege not waived by volunteering evidence — If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; and if any party to a suit or proceeding calls any such barrister,
pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.—
129. Confidential communications with legal advisers — No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.
130. PRODUCTION OF TITLE-DEEDS OF WITNESS NOT A PARTY — No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.
131. PRODUCTION OF DOCUMENTS OR ELECTRONIC RECORDS WHICH ANOTHER PERSON, HAVING POSSESSION, COULD REFUSE TO PRODUCE — No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession, or control, unless such last-mentioned person consents to their production.
132. WITNESS NOT EXCUSED FROM ANSWERING ON GROUND THAT ANSWER WILL CRIMINATE — A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:
(Proviso)—Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
133. ACCOMPLICE— An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
134. Number of witnesses — No particular number of witnesses shall, in any case, be required for the proof of any fact.

Devider

CHAPTER X
OF THE EXAMINATION OF WITNESSES (ss135-166)

135. Order of production and examination of witnesses— The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.

136. JUDGE TO DECIDE AS TO ADMISSIBILITY OF EVIDENCE— When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.
Illustrations
(a)It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32.
The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.
(b)It is proposed to prove, by a copy, the contents of a document said to be lost.
The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.
(c)A is accused of receiving stolen property knowing it to have been stolen.
It is proposed to prove that he denied the possession of the property.
The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.
(d)It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.

137. Examination-in-chief— The examination of a witness by the party who calls him shall be called his examination-in-chief.
Cross-examination.— The examination of a witness by the adverse party shall be called his cross-examination.
Re-examination.— The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

138. Order of examinations— Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination— The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

139. Cross-examination of person called to produce a document— A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examined unless and until he is called as a witness.

140. Witnesses to character— Witnesses to character may be cross-examined and re-examined.

141. LEADING QUESTIONS— Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.

142. When they must not be asked— Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.
The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.

143. When they may be asked— Leading questions may be asked in cross-examination.

144. Evidence as to matters in writing— Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation.— A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration
The question is, whether A assaulted B.
C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

145. CROSS-EXAMINATION AS TO PREVIOUS STATEMENTS IN WRITING — A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

146. Questions lawful in cross-examination — When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend—
(1) to test his veracity,
(2) to discover who he is and what is his position in life, or
(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture:
Provided that in a prosecution for an offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code (45 of 1860) or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.

147. When witness to be compelled to answer— If any such question relates to a matter relevant to the suit or proceeding, the provisions of section 132 shall apply thereto.

148. COURT TO DECIDE WHEN QUESTION SHALL BE ASKED AND WHEN WITNESS COMPELLED TO ANSWER— If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations:—
(1) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
(2) Such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
(3) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence;
(4) The Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference that the answer if given would be unfavorable.

149. Question not to be asked without reasonable grounds— No such question as is referred to in section 148 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded.
Illustrations
(a)A barrister is instructed by an attorney or vakil that an important witness is a dakait. This is a reasonable ground for asking the witness whether he is a dakait.
(b)A pleader is informed by a person in Court that an important witness is a dakait. The informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a dakait.
(c)A witness, of whom nothing whatever is known, is asked at random whether he is a dakait. There are here no reasonable grounds for the question.
(d)A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living, gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a dakait.

150. Procedure of Court in case of question being asked without reasonable grounds— If the Court is of opinion that any such question was asked without reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or attorney, report the circumstances of the case to the High Court or other authority to which such barrister, pleader, vakil or attorney is the subject in the exercise of his profession.

151. Indecent and scandalous questions— The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.

152. Questions intended to insult or annoy— The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.

153. Exclusion of evidence to contradict answers to questions testing veracity— When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence.
Exception 1.— If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.
Exception 2.— If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.
Illustrations
(a)A claim against an underwriter is resisted on the ground of fraud.
The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it.
Evidence is offered to show that he did make such a claim.
The evidence is inadmissible.
(b)A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it.
Evidence is offered to show that he was dismissed for dishonesty.
The evidence is not admissible.
(c)A affirms that on a certain day he saw B at Lahore.
A is asked whether he himself was not on that day at Calcutta. He denies it.
Evidence is offered to show that A was on that day at Calcutta.
The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore.
In each of these cases the witness might, if his denial was false, be charged with giving false evidence.
(d)A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence.
He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.
154. Question by party to his own witness—
(1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.

155. IMPEACHING CREDIT OF WITNESS— The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him:—
(1) By the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
Explanation.— A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.
Illustrations
(a)A sues B for the price of goods sold and delivered to B.
C says that he delivered the goods to B.
Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to B.
The evidence is admissible.
(b)A is indicted for the murder of B.
C says the B, when dying, declared that A had given B the wound of which he died.
Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence.
The evidence is admissible.

156. QUESTIONS TENDING TO CORROBORATE EVIDENCE OF RELEVANT FACT, ADMISSIBLE— When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
Illustration
A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed.
Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.

157. Former statements of witness may be proved to corroborate later testimony as to same fact — In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

158. What matters may be proved in connection with proved statement relevant under section 32 or 33— Whenever any statement, relevant under section 32 or 33, is proved, all matters may be proved, either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination of the truth the matter suggested.

159. Refreshing memory — A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.
When witness may use copy of document to refresh memory.— Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:
Provided the Court be satisfied that there is sufficient reason for the non-production of the original.
An expert may refresh his memory by reference to professional treatises.

160. Testimony to facts stated in document mentioned in section 159— A witness may also testify to facts mentioned in any such document as is mentioned in section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.
Illustration
A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.

161. Right of adverse party as to writing used to refresh memory— Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.

162. Production of documents— A witness summoned to produce a document shall, if it is in his possession or power, bring it to the Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.
The Court, if it sees, fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.
Translation of documents— If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence : and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 166 of the Indian Penal Code (45 of 1860).

163. Giving, as evidence, of document called for and produced on notice— When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.
164. Using, as evidence, of document, production of which was refused on notice— When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.
Illustration
A sues B on an agreement and gives B notice to produce it. At the trial, A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.

165. Judge’s power to put questions or order production— The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

166. Power of jury or assessors to put questions— In cases tried by jury or with assessors, the jury or assessors may put any question to the witnesses, through or by leave of the Judge, which the Judge himself might put and which he considers proper.

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